SBORNÍK 66 SVOČ 2016

it may be stated that the Court quite successfully adopted a ‘doctrine of avoiding the

questions of Community law,’

although such an approach could hardly be considered

as a doctrine at all. This reluctance to deliver an opinion seemingly disappeared in

January 2011, when the Court via its ruling adopted the position of the doctrine of

European constitutional monism, i.e. acknowledged the dominance of EU law over

domestic law and bound all public bodies including itself to apply predominantly

EU and only then national law. Thus, the SCC decided for the monist interpretation

and showed no preference for constitutional pluralism. This position was, though, not

confirmed in any other ‘hard case’ which would imply a conflict between the legal orders.

Additionally, the debate on the causes and consequences of the SCC’s approach,

without aspiring to demonstrate causality mechanisms, pointed to a mixture of reasons,

why the SCC could have moved in this direction, including the tradition of legal

monism cemented in communist times, and the specialization and doctrinal views

of the judges of the SCC. Rejecting constitutional pluralism can stimulate the need

for one of the orders to prevail if these approach differently the scope of protection

of a certain fundamental right, and raise challenges with the conformity of certain

constitutional provisions with EU law.

Signs of a more sophisticated and active approach to these issues, which would

help overcome some challenges of European integration for Slovakia, have not been

observed since then in the SCC’s jurisprudence. It remains to be seen whether the

Court will stick to its previous reasoning and create a stable doctrine by means of its

upcoming decisions and whether the adopting of this ‘simpler solution’ with a rather

general and vague reasoning will have a norm setting effect among other judicial and

political institutions operating in the Slovak political system.

Jánošíková, Martina, op. cit. (No. 43).

One case seems to be in development already. Constitutional act No. 306/2014 Coll. amended the

Article 4 of the Slovak Constitution (Section 2, first part of the first sentence), according to which ‘The

transportation of water taken from water supplies located in the territory of the Slovak Republic through

the borders of the Slovak republic with means of transport or pipelines shall be prohibited (…)’ (authors’

own translation due to absence of the amended English-language version). The European Commission

already investigates the conformity of this provision with the free movement of goods in the EU. The

Slovak government aims to defend the regulation, among others, with the peculiar argument that ‘water

does not count as common goods, it is a strategic raw material which deserves to be protected in the

Constitution.’ See Minister Žiga: Slovakia defends ban on water exports. In“ Slovak Spectator [Online].

2016-02-03 [accessed 2016-02-06]. Available at:

slovakia-defends-legal-ban-on-water-exports.html.