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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]

Relation of Constitutional Courts to Supreme Courts

Giacomo Delledonne

Subject(s):
Constitutional interpretation — Constitutional processes — Judicial review of executive action — Judicial review of legislation — Powers and jurisdiction of constitutional courts/supreme courts — Types of constitutional courts/supreme courts

Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.

A.  Preliminary Remarks: Classifying Courts Which Perform Constitutional Review of Legislation

1.  This article focuses on the interplay between supreme courts and constitutional courts (constitutional courts / supreme courts, general). As has been observed, whereas the relationship between constitutional courts and the political branches has always received great scholarly attention, ‘[a]n equally important and as yet more marginally explored relationship is that between constitutional and ordinary courts’ (de Visser 377). This is all the more true when it come s to supreme courts. This article will first clarify the difference between constitutional courts and supreme courts with respect to their respective roles in constitutional adjudication: in doing so, it will stress the significance of the distinction between an American and a European (or Kelsenian) model of constitutional adjudication in this respect. Afterwards, the article will focus on the main problems related to the relation between constitutional courts and supreme courts and describe some examples of judicial conflicts. Constitutional courts may be entrusted with a number of different tasks (powers and jurisdiction of constitutional courts / supreme courts); for the purposes of this article, however, only constitutional review of legislation and adjudication of constitutional complaints will be considered.

1.  Judicial Review of Legislation Conducted by Ordinary Courts: the American Model of Constitutional Adjudication

2.  Preliminary definitions are necessary in order to make a distinction between supreme courts and constitutional courts. This attempt at definition revolves around the distinction between the two main models of constitutional adjudication: the American diffuse model of constitutional adjudication—in which the supreme court also adjudicates constitutional cases—and the European centralized model, based on a specialized constitutional court (Cappelletti (1970)).

3.  The supreme court might be defined as the highest court—or court of last resort—within a given legal order. It generally hears civil, criminal, and possibly administrative cases. In the American model of constitutional adjudication, supreme courts may also be entrusted, together with inferior courts, with the task of reviewing the compatibility of ordinary laws with the constitution (judicial review). In the United States, this development was mainly the result of a peculiar interpretation of the Constitution laid down by the Supreme Court in the Marbury v Madison Case (US).

4.  The American model has spread to a number of legal systems—mainly, but not exclusively, common law systems. Both in Canada and Australia, for example, the Constitution did not explicitly confer the power of judicial review of legislation on the courts. However, these engaged with review of ordinary laws because of a long-standing practice of judicial actors in the British Empire, scrutinizing colonial laws on the grounds of their consistency with local constitutions and other imperial legislation. In other common law jurisdictions, the role of the supreme court as a constitutional court is more clearly described in the constitutional text (Constitution of the Republic of India: 26 January 1950 (as amended to 28 May 2015), Arts 13, 32 and 131 to 136 (India) (Supreme Court of India); Constitution of Ireland: 29 December 1937 (as amended to 4 October 2013): Arts 15 and 34, para. 3 (Ir)).

5.  Supreme courts have been entrusted with the task of reviewing legislation, either alone or together with lower courts, also outside the common law area, (Political Constitution of the United Mexican States: 5 February 1917 (as amended to 24 February 2017), Art. 105 (Mex); Constitution of the Federative Republic of Brazil: 5 October 1988 (as amended to 2015), Art. 102 (Braz); Constitution of Japan: 3 November 1946, Art. 81 (Japan); Constitution of the Republic of the Philippines: 2 February 1987, Art. VIII, sect. 5 (Phil); Constitution of the Republic of China: 25 December 1947 (as amended to 10 June 2005), Arts 77 and 78 (Taiwan); Constitution of the Republic of Yemen: 28 September 1994, Art. 151 (Yemen); Constitution of the State of Eritrea: 23 May 1997, Art. 49, para. 2 (Eri); Constitution of the Republic of Iraq: 15 October 2005, Art. 93 (Iraq)).

2.  A Specialized Body: the Constitutional Court

6.  On the other hand, constitutional courts are specialized judicial actors whose specific mission is to hear constitutional cases. As such, they are usually distinct, both in structural and functional terms, from ‘ordinary’ supreme courts.

7.  The parallel existence in the very same legal order of a supreme court and a constitutional court (specifically entrusted with the power of constitutional review of legislation and the adjudication of constitutional cases in a broader sense) is a distinctive—although not exclusive—feature of a number of European constitutional systems. Indeed, it is a direct consequence of a fundamental element of the so-called European model of constitutional adjudication: the existence of a single judicial actor in charge of the constitutional review of ordinary laws. This organ, which may be named constitutional court or constitutional council, is generally considered to be part of the judiciary but is provided with specific features. For this reason, the European model of constitutional adjudication is usually described as centralized, (Cappelletti (1970); Ferreres Comella; Garlicki).

8.  Specialized constitutional courts have been a defining feature of the European model of constitutional adjudication since the immediate aftermath of World War I (Constitutional Court of Austria (Verfassungsgerichtshof)). However, their success is more recent. They were established in a great many European jurisdictions concurrently with the subsequent waves of democratization—and extensive constitution-amending or constitution-making processes—after the end of World War II.

9.  Furthermore, constitutional courts have spread to other regions of the world as part of wide-ranging constitution-amending settlements or transition processes towards constitutional democracy. Thus, it comes as no surprise that specialized constitutional courts have been established in Colombia (Constitution of the Republic of Colombia: 5 July 1991 (as amended to 4 November 2011, Arts 239–45 (Colom)), South Africa (Constitution of the Republic of South Africa: 16 December 1996 (as amended to 1 February 2013, Art. 167 (S Afr)), Ecuador (Constitutional Court established in 1996), Jordan (Constitution of the Hashemite Kingdom of Jordan: 1 January 1952 (as amended to 28 August 2014), Arts 58–61 (as amended by constitutional reform of 30 September 2011) (Jordan)), and Morocco (Constitution of the Kingdom of Morocco: 1 July 2011, Arts 129–34 (Morocco)).

3.  Intermediate Solutions

10.  Some constitutions in Latin America provide for a ‘third way’: within the supreme court, a specialized section is in charge of the constitutional review of legislation. This is the case of the Constitutional Division of the Supreme Court of El Salvador (Constitution of the Republic of El Salvador: 15 December 1983 (as amended to 27 May 2009), Art. 174 (El Sal)) and the Constitutional Chamber of Supreme Court of Justice of Costa Rica (Corte Suprema de Justicia de Costa Rica) (Constitution of the Republic of Costa Rica: 7 November 1949 (as amended to 15 July 2003), Art. 10 (Costa Rica)).

4.  The Reasons for Establishing a Specialized Constitutional Court

11.  A basic question should be answered: why did many constitution makers decide in favour of the establishment of a separate constitutional court? Five main reasons may be mentioned: they all have to do, to different extents, with the relation between supreme courts and the activity of constitutional review of legislation. More generally, these reasons reflect ‘the profound differences in the political and constitutional culture on both sides of the Atlantic Ocean’ (Garlicki 45).

12.  First, Hans Kelsen, who is usually identified as the main advocate for the establishment of specialized constitutional courts, argued that a centralized model based on abstract review of legislation (ie based on challenges brought by public institutions) was to be preferred for the sake of legal certainty (Ferreres Comella). In general terms, legal certainty is a highly praised value in civil law jurisdictions where there is no stare decisis doctrine: this circumstance clearly affects the position of the supreme court within the judiciary.

13.  Second, in the European legal and political culture of judicial review of legislation was perceived as fundamentally different from the adjudication of civil and criminal cases and the judicial review of administrative acts: traditional separation of powers doctrines and Montesquieu’s description of judges as ‘the mouth that pronounces the words of the law’ (bouche de la loi) were very influential until the second half of the twentieth century (Cappelletti (1955)).

14.  Third, constitutional courts are a typical product of transitions from authoritarian regimes to liberal democracy (authoritarianism; liberalism). The subsequent waves of democratization in Europe, Latin America, Asia and Africa have all been marked by the establishment of constitutional courts. This happened in Germany and Italy immediately after the end of World War II, in Spain and Portugal in the 1980s, in Eastern European countries after the downfall of Communist regimes, and in a number of Latin American and African countries contemporaneously with the introduction—or restoration—of democracy in the 1980s and 1990s (history of constitutional courts / supreme courts). During constitutional transitions, a recurring trend is mistrust of ordinary judges—and, more generally, administrative elites—because of their possible involvement in the institutional machinery of the previous regime.

15.  Fourth, and contrary to Kelsen’s views on the task of constitutional courts, these have become more and more closely associated with fundamental rights protection. In this respect, the Colombian case is telling: although a system of judicial review based on the Constitutional Court of Colombia (Corte Constitucional de Colombia had been in place since 1886, the Constituent Assembly of 1991 decided to establish a specialized Constitutional Court because, among other reasons, the Supreme Court ‘was seen as insufficiently protective of individual human rights’.

16.  Finally, the perceived need for a specialized court is a consequence of the peculiar nature of judicial review of legislation. According to democracy-based objections, the constitutional review of legislation is inherently different from the application of legislative provisions in ‘ordinary’ cases. According to more radical critics, like Carl Schmitt, constitutional adjudication performed by courts might lead to a politicization of the judiciary rather than to a judicialization of politics. For this reason, the political branches are usually more directly involved in the selection of constitutional judges than it is the case with ordinary judges and even supreme court judges. Thanks to peculiar selection procedures, constitutional judges are often supposed to be more conscious of the stakes and risks in constitutional cases, which might be politically sensitive.

B.  Constitutional Courts Vis-à-Vis Supreme Courts: a Survey of the Main Problems

17.  This section will analyse the main problems in the relation between constitutional courts and supreme courts. These can be classified, at least for explanatory purposes, as structural (or static) and functional (or dynamic). Together, these issues make it possible to give an account of the main stakes in the complex relations between these two categories of courts.

18.  In order to stress both recurring trends and recent evolutions in this relation, the analysis will consider different ‘generations’ of constitutional courts (as defined by Biagi): as said before, there is a tight connection between democratization and constitution-making processes, on the one hand, and the establishment of constitutional courts, on the other hand.

1.  Structural Links

19.  Constitutional and supreme courts interact, first, when it comes to the selection of constitutional judges and the requisites for becoming a constitutional judge. In the previous sections, the reasons for establishing a specialized organ entrusted with the adjudication of constitutional cases have been presented: among them, the perceived necessity to separate this kind of court from the general judiciary is a recurring phenomenon. In structural terms, however, such separation is far from being total. In some jurisdictions, supreme courts are entitled to nominate or elect some of the constitutional judges; on the other hand, supreme court judges are often mentioned among those eligible for being selected as constitutional judges. The ultimate goal of this kind of constitutional provision is to foster, at least to some extent, proximity between constitutional judges and supreme court judges.

20.  Five out of the 15 judges of the Constitutional Court of Italy (Corte costituzionale della Repubblica Italiana) are elected by the members of the ordinary and administrative supreme courts, ie the Court of Cassation (three judges), the Council of State, and the Court of Auditors (one judge each). Furthermore, membership is restricted to judges of the ordinary and administrative higher courts, university full professors of law, and senior attorneys (Constitution of the Italian Republic: 22 December 1947 (as amended to 20 April 2012), Art. 135, paras 1 and 2 (It)). However, the Italian option—based on some of the judges of the Constitutional Court being elected by the ordinary and administrative supreme courts—has not been widely imitated elsewhere (see eg Constitution of the Republic of Bulgaria: 12 July 1991 (as amended to 6 February 2007), Art. 147 (Bulg)).

21.  In Germany, where constitutional judges are all elected by the Bundestag and the Bundesrat, the Basic Law provides for a Federal Constitutional Court of Germany (Bundesverfassungsgericht) composed ‘of federal judges and other members’ (Basic Law of the Federal Republic of Germany: 23 May 1949 (as amended to 11 July 2012), Art. 94, para. 1 (Ger)): according to implementing ordinary legislation, three judges of each of the two panels which make up the Federal Constitutional Court ‘shall be elected from among the judges of the supreme federal courts of justice. Only judges who have served at least three years with a supreme federal court of justice should be elected’ (Federal Constitutional Court Act: 12 March 1951 (as amended to 12 July 2012), Art. 2, para. 3 (Ger)).

22.  The twelve members of the Constitutional Court of Spain (Tribunal Constitucional de España) ‘shall be appointed among magistrates and prosecutors, university professors, public officials and lawyers, all of whom must have a recognized standing with at least fifteen years’ practice in their profession’; furthermore, the General Council of the Judicial Power nominates two judges (Constitution of the Kingdom of Spain: 6 December 1978 (as amended to 27 September 2011), Art. 159, paras 1 and 2 (Spain)).

23.  When it comes to the requisites for being appointed or elected to a constitutional court, similar arrangements can be found in a number of constitutional charters (see eg Constitution of the Hashemite Kingdom of Jordan: 1 January 1952 (as amended to 28 August 2014), Art. 61, para. 1(c) (Jordan); Constitution of the Republic of Turkey: 7 November 1982 (as amended to 12 September 2010), Art. 146 (Turk)).

24.  In smaller European countries, where the establishment of a constitutional court is more recent and the opposition between ‘law’ and ‘politics’ has not been so sharply perceived, there might even be partial overlaps between membership in the supreme court and in the constitutional court: it is the case eg of Luxembourg, where the Constitutional Court is composed of the President of the High Court of Justice, the President of the Administrative Court, two councillors of the Court of Cassation and five judges nominated by the Grand Duke on the joint advice of the High Court of Justice and the Administrative Court (Constitution of the Grand Duchy of Luxembourg: 17 October 1868 (as amended to 12 March 2009), Art. 95ter, para. 3 (Lux); see also Constitution of the Federal Democratic Republic of Nepal: 20 September 2015, Art. 137, para. 2 (Nepal)).

25.  It is worth adding that other constitutions provide for the temporary ineligibility of supreme court judges for the post of constitutional judge: this is the case of Colombia (Constitution of the Republic of Colombia: 5 July 1991 (as amended to 4 November 2011), Art. 240 (Colom)).

2.  Constitutional Courts as Part of the Judiciary

26.  As mentioned before, constitutional courts may well be distinct from supreme courts and other courts—however, a different question is whether or not they are part of the judiciary; and, if so, which is their position within the judiciary. A few examples will be recalled in order to hint at the underlying problems.

27.  Recent constitutions often address this issue explicitly. In some countries, the constitutional court is placed on the top of the hierarchy of the judiciary: this is the case eg of South Africa, where the Constitutional Court is defined as ‘the highest court of the Republic’ and the Supreme Court of Appeal has a subordinate position (Constitution of the Republic of South Africa: 16 December 1996 (as amended to 1 February 2013), Art. 167, para. 3 (S Afr)). In other jurisdictions, on the other hand, the relations between the constitutional court and the supreme court are defined not by a hierarchical criterion but by a distinction of competency, whereby the constitutional court is exclusively competent to adjudicate constitutional disputes: this is the case eg of Spain and Portugal. In the latter country, the Constitution defines the Constitutional Court as ‘the court that has the specific competence to administer justice in matters of constitutional nature’, whereas the Supreme Court of Justice ‘is the highest court of law, without prejudice to the jurisdiction of the Constitutional Court’ (Constitution of the Portuguese Republic (Sixth Revision): 2 April 1976 (as amended to 24 July 2004), Arts 221 and 210, para. 1 (Port); see also Constitution of the Czech Republic: 16 December 1992 (as amended to 14 November 2002), Art. 92 (Czech)). In other jurisdictions, the Constitution merely specifies that the Constitutional Court is part of the judiciary, even because of the difficulty to describe it as ‘supreme’ in any area whatsoever (Colom, Title VIII; Constitution of the Russian Federation: 12 December 1993 (as amended to 21 July 2014), Art. 118, para. 2 (Russ); see also Burnham and Trochev 2007, 401).

28.  In certain jurisdictions the status of constitutional courts with respect to the general judiciary was defined less by formally entrenched provisions than by constitutional practice and case law.

29.  In the first years of the Federal Republic of Germany, for instance, the Federal Constitutional Court was placed under the supervisory authority of the Federal Ministry of Justice and depended on its financial support; in this respect, it had the very same status as the Federal Supreme Court or the Federal Administrative Court. In 1952, the Federal Constitutional Court issued a memo in which it asserted its nature as a constitutional organ, standing on equal footing with the federal legislature or the Federal President (so-called ‘Status-Denkschrift’). For this reason, the Court should be removed from the jurisdiction of the Ministry of Justice and be granted full administrative and financial autonomy (Collings 9–12). This self-assertion of institutional autonomy made the Constitutional Court clearly distinct from the ‘other’ superior courts in the German federal judiciary. Similarly, the Italian Constitutional Court, which is generally recognized as a constitutional organ alongside the Parliament or the President of the Republic, tried to make it clear that its institutional position, directly related to its ‘function of constitutional control’, was distinct from that of administrative courts (Italian Constitutional Court, Judgment No. 13/1960). For this reason, the Constitutional Court could not be identified as a ‘court or tribunal of a Member State’ for the purposes of Art. 267 of the Treaty on the Functioning of the European Union of 13 December 2007 (TFEU) (Judgment No. 536/1995). In a subsequent decision, however, the Constitutional Court argued that ‘in spite of its peculiar position as an organ for the guarantee of the Constitution’, it should be considered as a court (Judgment No. 102/2008).

3.  Access to Constitutional Courts: the Role of Supreme Courts as ‘Gatekeepers’

30.  The Kelsenian conception of constitutional adjudication is based on centralized, abstract review of legislation by a single, specialized body. In this respect, it is clearly different from the US model, which is based on decentralized, concrete review by a plurality of judicial actors. In fact, the current situation in many jurisdictions in which a constitutional court has been established lies somewhere in the middle between these two ideal types. Constitutional courts also perform concrete review of legislation (more precisely, incidental review), hearing cases which are brought before them, among others, by ordinary judges (access to constitutional courts / supreme courts). In this respect, there is no sharp separation, properly speaking, between judicial review of legislation and adjudication in the traditional sense.

31.  For the purposes of this article, it is worth remarking that in some jurisdictions the constitution entrusts supreme courts with ‘filtering’ constitutional cases before they come to the constitutional court. This was the case in Germany before the Federal Constitutional Court Act was amended, in 1956. Currently, this is still the case eg of France after the constitutional reform of 2008, which introduced preliminary rulings on the constitutionality of legislative provisions (question prioritaire de constitutionnalité or QPC). In an effort to limit the revolutionary significance of such an innovation, the Constitution provides that ‘[w]here it is alleged in a pending court case that a statutory provision violates the rights and freedoms guaranteed by the Constitution, the matter may be referred to the Constitutional Council by the Conseil d’État or the Cour de cassation which decide within a fixed delay’ (Constitution of the French Republic: 28 September 1958 (as amended to 23 July 2008), Art. 61-1 (Fr); see Dyevre 2013). A subsequent organic law has specified the procedural details concerning the role of the supreme ordinary and administrative courts in filtering applications for a preliminary ruling (Organic Law No. 2009-1523).

32.  In other jurisdictions, only supreme courts may bring cases concerning the constitutionality of ordinary laws before the constitutional court (Federal Constitutional Law of the Republic of Austria: 1 October 1920 (as amended to 25 July 2012), Art. 140 (Austria); Constitution of the Republic of Bulgaria: 12 July 1991 (as amended to 6 February 2007), Art. 150, para. 1 (Bulg); Constitution of the Republic of Azerbaijan: 12 November 1995 (as amended to 18 March 2009), Art. 130, para. 3 (Azer); for an intermediate solution, see Constitution of the Russian Federation: 12 December 1993 (as amended to 21 July 2014), Art. 125, para. 2 (Russ)).

4.  ‘Wars between Courts’

33.  Even if constitutional provisions attempt at delimiting the respective spheres of competence of supreme courts and constitutional courts, conflicts between these two categories of judicial actors may still arise. The expressions ‘war of judges’ and ‘war of courts’ have been used a number of times since the 1960s in order to describe judicial conflicts in specific countries.

(a)  Conflicts about Interpretation

34.  As mentioned before, one of the reasons for creating constitutional courts in the aftermath of the restoration or return of democracy is a form of mistrust of supreme courts, whose judges are often suspected of being part of the elite of the previous regime. Supreme courts, in turn, have quite often been far from being sympathetic to the newly established constitutional courts. In the 1950s and 1960s this mutual feeling clearly influenced the relations between supreme courts, which had been in place for decades, and the newly established constitutional courts. Problems of this kind emerged both in Italy and Germany.

35.  In Italy, the Constitutional Court developed a kind of judgment named sentenze interpretative di rigetto: this meant that the Court rejected a question of constitutionality provided that the legislative provisions under review be interpreted in one specific way. This authorized interpretation of ordinary laws was sometimes different from the one which had been developed by the Court of Cassation. In Italy, as it happens in a number of civil law jurisdictions, no doctrine of binding precedent is in force, but interpretations of the law developed by the Court of Cassation are widely seen as an authoritative model for all other judges. In the 1960s, a major interpretative conflict between the Constitutional Court and the Court of Cassation concerned the application of fair-trial guarantees in summary investigations (Judgments No. 11 and 52/1965). The Court of Cassation rejected the interpretation of the challenged provisions developed by the Constitutional Court in its first judgment; for this reason, the Constitutional Court finally stroke down the provisions at stake.

36.  In subsequent years, both courts tried to avoid open conflict. This was possible thanks to the decision of the Constitutional Court to accommodate with the prevalent interpretation of a law developed by ordinary courts when scrutinizing its constitutionality (doctrine of ‘living law’, diritto vivente). The doctrine of living law has been embraced by the Polish Constitutional Court as well (Garlicki 60).

37.  In Russia, a conflict of this kind arose when a Constitutional Court was first established in the early 1990s. Individuals would be enabled to bring a case before the newly created Court only if they could prove that they were complaining against a standard judicial interpretation of a norm. According to critics, however, this would have led to the Constitutional Court scrutinizing judicial practice, thus ‘supervising’ the other courts, including the Supreme Court. Furthermore, conflicts between then President Yeltsin and the First Constitutional Court (1992–93) led to a noteworthy limitation of the jurisdiction of the Constitutional Court, whereby ‘non-normative’ presidential acts are left for ordinary courts to review (Constitution of the Russian Federation: 12 December 1993 (as amended to 21 July 2014), Art. 125 (Russ)).

(b)  Constitutional Complaints

38.  Another area of possible conflicts is related to constitutional complaints, by means of which individuals may allege that their fundamental rights have been violated or infringed by public institutions. Supreme courts are generally included among those institutions: this means that their decisions can be reviewed by constitutional courts in order to ascertain whether fundamental rights have been infringed. If this happens, supreme court decisions cannot be properly defined as final any longer and ‘a hierarchy of some sort is established between the constitutional court and other national courts’ (de Visser 385—86). This circumstance has mainly two effects. On the one hand, it encourages ordinary courts—and supreme courts—to take into account constitutional principles and values, thus promoting widespread compliance with the foundations of the constitutional order throughout the legal system; on the other hand, it might generate tension between the constitutional court and supreme courts, all the more so if a majority of constitutional complaints are successful (which, in fact, is not the case).

(c)  The Mazón Case: Conflict between the Constitutional Court and the Supreme Court in Spain

39.  Spain is a country in which the Constitution admits constitutional complaint before the Constitutional Court (amparo: Constitution of the Kingdom of Spain: 6 December 1978 (as amended to 27 September 2011), Art. 53, para. 2 (Spain)): for this reason, the Constitutional Court might be described as the ultimate guardian of fundamental rights under the Constitution. On the other hand, the Supreme Court is ‘supreme’ in all non-constitutional matters: still, the definition of what is ‘constitutional’ and what is not largely depends on judicial interpretation elaborated by each court.

40.  In 2004, the Spanish Supreme Court (Tribunal Supremo) condemned eleven (out of twelve) judges of the Constitutional Court (Tribunal Constitucional) to a fine of 500 euros: by unanimous decision of 18 July 2002, those judges had dismissed a constitutional case brought by a claimant. The Supreme Court held, first, that the special regime of tort liability of the Organic Law on the Judiciary (Ley Orgánica del Poder Judicial) did not apply to the judges of the Constitutional Court; thus, the relevant provision was Art. 1902 of the Spanish Civil Code. According to the Tribunal Supremo, the judges of the Tribunal Constitucional had committed gross negligence in handling that case too summarily (Turano).

(d)  Constitutional Courts and Supreme Courts Facing European Integration

41.  European integration has often been described as posing a dramatic threat to the institutional position of constitutional courts (relation of constitutional courts / supreme courts to EU courts). The reasons for this claim lie in the Simmenthal doctrine of the Court of Justice of the EU, whereby national judges simply refrain from applying national law incompatible with EU law, and the preliminary reference mechanism (TFEU, Art. 267), which allows national ordinary judges to engage directly in a dialogue with the Court of Justice of the EU. This paved the way, to a certain extent, for the ‘isolation’ of European national constitutional courts within their respective legal orders. Fears of isolation of national constitutional courts in the Member States of the EU have further increased after the Charter of Fundamental Rights of the European Union (2000) came into force, thereby enriching European primary law considerably.

42.  Two recent episodes deserve attention. The first one is known as the Melki judicial saga. After the introduction of the QPC in France, Organic Law No. 2009-1523, implementing Art. 61-1 of the Constitution (see above), specified that

[i]n all events, the court involved must, when confronted firstly with arguments challenging the conformity of a statutory provision with the rights and freedoms guaranteed by the Constitution and secondly with the international commitments entered into by France, rule in priority of the transmission of the application for a priority preliminary ruling on the issue of constitutionality to the Conseil d’État or Court of Cassation (Ordinance No. 58-1067, constituting an institutional act on the Constitutional Council: 7 November 1958 (as amended to 14 April 2011), Art. 23-2, para. 3 (Fr); emphasis added).

43.  While the Constitutional Council ruled in favour of the compatibility of this provision with EU law (Loi relative à l’ouverture à la concurrence et à la régulation du secteur des jeux d’argent et de hasard en ligne (2010) Decision No. 2010-605 DC (Fr)), the Court of Cassation lodged a request for preliminary ruling with the Court of Justice of the EU, arguing that the effectiveness of EU law was being jeopardized. In its judgment, the Court of Justice argued that EU law ‘precludes Member State legislation which establishes an interlocutory procedure for the review of the constitutionality of national laws, in so far as the priority nature of that procedure prevents … all the other national courts or tribunals from exercising their right or fulfilling their obligation to refer questions to the Court of Justice for a preliminary ruling’. However, the Court asked the referring French Court of Cassation to ascertain whether the national legislation at issue in the main proceedings could be interpreted in accordance with EU law (Melki et Abdeli (2010) C-188/10 and C-189/10).

44.  Second, in 2012 the Austrian Constitutional Court decided to include the Charter of Fundamental Rights of the EU among its standards of constitutional review (EU-Grundrechte-Charta (2012) (Austria)). After that, the Austrian Supreme Court reacted by raising a request for preliminary ruling under Art. 267 TFEU. In its judgment, the Court of Justice of the EU did not explicitly repudiate the decision of the Austrian Constitutional Court; rather, it specified that national ordinary courts should ‘remain free: [a] to make a reference to the Court [of Justice] at whatever state of the proceedings they consider appropriate, and even at the end of the interlocutory procedure for the review of constitutionality, in respect of any question which they consider necessary, [b] to adopt any measure necessary to ensure interim judicial protection of rights conferred under the EU legal order, and [c] to disapply, at the end of such an interlocutory procedure, the national legislative provision at issue if they consider it to be contrary to EU law’ (A v B and others (2014) C-112/13 (European Union)).

C.  Concluding Remarks

45.  As the analysis has shown, interaction and occasional tension between constitutional courts and supreme courts is a distinctive feature of the European or Kelsenian model of constitutional adjudication. Such model has spread outside Europe and has somehow departed from Kelsen’s theoretical project. Meanwhile, the relationship between supreme courts and constitutional courts has significantly evolved over time. Constitutional courts were often established because ordinary judges (and, among them, supreme courts) were thought not to be able or fit to perform the constitutional review of legislation. For this reason, the early stages of the relation between supreme courts and constitutional courts were often marked by troubles and misunderstandings. In broader terms, these reflected suspicions intellectual difficulties concerning the very nature of constitutional adjudication. In fact, misunderstandings have periodically re-emerged, because of ‘the natural inclination of judges to expand the scope of their authority’ (Garlicki 64) and the growing complexity of interactions between national courts and between them and supranational or international courts (national implementation of international court decisions). The Melki judicial saga in France is just one of the most recent examples of an interaction which sometimes develops by trial and error.

46.  On the other hand, the distinction between these two types of courts should by no means be understood as segregation. Most of the existing constitutional courts perform both abstract and concrete review of legislation: as regards the latter, supreme courts might clearly play a crucial role both in filtering requests coming from lower courts and in asserting consistent interpretations of ordinary laws. In this respect, cooperation among judicial actors is crucial for ensuring compliance with the decisions of constitutional courts and, ultimately, the supremacy of the constitution in the legal order.

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