40 / 610
38
they again have more options of where to put the ‘limits’ of EU law. It appears that the
most progressive position they could take would be the ‘cooperative pluralist’ one in
which they would foster an intensive dialogue with the (not only) judicial institutions,
especially the ECJ, on both formal (such as submitting preliminary references to the
ECJ
30
) and informal (such as following the up-to date jurisprudence of the ECJ, the
national CCs and theoretical discussions on the topic) levels. In the rest of the paper it
is discussed whether the SCC proceeds this way.
3. The case of Slovakia
Before proceeding to the analysis of case law, it is helpful to review the preconditions
for the relationship between EU law and Slovak constitutional law in the Slovak
Constitution, and the powers of the SCC to interpret the Constitution.
3.1 The SCC: Background
As was demonstrated earlier, CCs can directly influence a country’s standing in
relation to EU law via the opinions in their rulings. Nevertheless, the basic mechanisms
set in statutory law by the national legislature are binding for them with no exception.
Therefore, an analysis of these position has to take into account the provisions of
statutory law as well as the rulings themselves.
Additionally, it is important to set up the context (geographical, historical, and
political) in which a particular CC operates. The SCC, similarly to other Central
European CCs, belongs to those highest judicial institutions which possess extensive
powers of both abstract
31
and concrete
32
constitutional review. The explanation of such
powers lies in the establishing process of constitutional review in the region, where an
important role was played by the aim to provide these countries with a ‘European
image’ associated with advanced Western democracies.
33
When it comes to the SCC
and its usage of the wide range of formal powers, the thesis of the contribution of this
institution to the consolidation of democracy in Slovakia in 1990s
34
can be accepted.
30
In fact, the questions posed by national courts are considered to be helpful for shaping EU law. See
Maduro, Miguel Poiares, op. cit. (No. 26), p. 15.
31
Abstract review is ‘the method of considering a statutory rule not in the actual context of a specific case
but rather in abstracto’ (Sadurski, Wojciech: Rights Before Courts: A Study of Constitutional Courts in
Postcommunist States of Central and Eastern Europe. Second Edition
.
Dordrecht: Springer, 2014, p.
13, see also the assessment on pp. 91-102). For example, the SCC possesses abstract review powers on
the basis of Article 125 of the Slovak Constitution.
32
Concrete review is based on review of individual complaints on human rights violations submitted to
the Court, usually after all previous remedies have been exhausted (Article 127 of the Constitution). The
SCC does not possess the power to review individual complaints on the unconstitutionality of legisla-
tive acts, known as
actio popularis.
On constitutional complaints and
actio popularis
, see e.g. Sadurski
Wojciech: op. cit. (No. 31), pp. 16-19.
33
Procházka, Radoslav: Mission Accomplished: on Founding Constitutional Adjudication in Central
Europe. Budapest and New York: CEU Press, 2002, pp. 13-31.
34
Malová, Darina: The Role and Experience of the Slovakian Constitutional Court. In: Sadurski, Wojciech