Czech Yearbook Vol. 4 2013

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DAVID PETRLÍK CYIL 4 ȍ2013Ȏ
65%, in a year.33 Although some of these references were inadmissible, many of them
were serious, with the Charter playing a predominant role above all in the field of
immigration and asylum.34
Perhaps even more significant is the fact that more and more national constitutional
courts, possibly under the influence of the increased importance of fundamental rights,
have begun to address references for a preliminary ruling. Four more constitutional
courts have done so recently: the Spanish Constitutional Court in Melloni, the French
Constitutional Council in Jeremy F., 35 the Italian Constitutional Court in Presidente
del Consiglio dei Ministri,36 and the Lituanian Constitutional Court in Sabatauskas.37
Other national constitutional courts continued to address such references.38
Despite this favourable development, the new EU conception of human rights
based on the Charter have not had, however, any notable influence on the second
tendency existent in the national constitutional case-law. According to this tendency,
some constitutional courts continue to claim the right to review the conformity of
acts imposed by EU law in regard to national constitutional rules and principles.
In this respect, it must be stressed that these courts recognise that they are bound
to respect EU law and to proceed according to the principle of loyal cooperation
with the Union institutions. Hence, before finding the non-conformity of a EU act
with the national constitution, they deploy all possible means to resolve a potential
conflict between constitutional standards and those of EU law. It is only if all means
have failed that the decision on non-compliance of an EU act could be taken, the
latter so having a character ultima ratio.39
According to the intensity of such a constitutional review, three main approaches
exist. The first one is the most favourable for the EU law, and it is pursued, in
particular, by the French Constitutional Council, which adopted it in 2004 and
reaffirmed it after the Treaty of Lisbon. Its approach is based on the principle that “in
33 See 2012 Report on the Application of the EU Charter of Fundamental Rights, COM (2013) 271
final, p. 22. Available at _
charter_en.pdf.
34 See the General Report of the Association of Councils of States and of Supreme Administrative Courts,
cited above note 29, p. 5.
35 Case C-168/13, pending.
36 Case C-169/08 Presidente del Consiglio dei Ministri [2009] ECR I-10821. This case does not concern
the fundamental rights, but it demonstrates the readiness of the Constitutional Court to address
a reference for a preliminary ruling even in this field in the future.
37 Case C-239/07 Sabatauskas e.a. [2008] ECR I-7523. Similarly to the case cited in the previous note,
this case does not concern the fundamental rights.
38 For the Belgian Constitutional Court, see Case C-73/08 Bressol and Others and Chaverot and Others
[2010] ECR I-2735), Case C-182/10 Marie-Noëlle Solvay and Others [2012] ECR I-0000 or Case
C-375/11 Belgacom and Others [2013] ECR I-0000. For the Austrian Constitutional Court, see Case
C-594/12 Seitlinger, pending.
39 See, in particular, the judgement of the Polish Constitutional Tribunal of 16 November 2011, SK
45/09, Dz.U. Nr. 254, poz. 1530. Available at
SK_45_09_EN.pdf.