CYIL Vol. 4, 2013

MUTUAL RESPECT AND RESIDUAL TENSIONS BETWEEN THE SYSTEMS OF PROTECTION… organ of public administration has made a final decision on the individual’s freedoms or rights or on his/her obligations specified in the Constitution. 48 Accordingly, the fact that the contested acts are of EU origin is reflected only in a special character of the review. In this respect, the Polish Constitutional Tribunal emphasises the need to maintain due caution and restraint, because the principle of sincere cooperation requires that the Member States facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives. Hence, the court endeavours to avoid the state of non- conformity of EU law to the Constitution. This assumption gives rise to an obligation to “approach the EU norms with the utmost respect”. Therefore, a ruling declaring the non-conformity of EU law to the Constitution ought to appear only when all other ways of resolving a conflict between constitutional rules and the rules of the EU legal order have failed. 49 The proclaimed cooperative spirit of the above-mentioned constitutional reviews does not change the fact that these reviews are contrary to the ECJ’s case-law and, in particular, to Åkerberg Fransson and Melloni , as they compromise the primacy, unity and effectiveness of EU law. In Melloni , the Court of Justice has clearly reconfirmed the relevance of its settled case-law on the relationship between the EU law and national law. Pursuant to this case-law, the principle of primacy of EU law, which is an essential feature of the EU legal order, does not allow the rules of national law on fundamental rights, even of a constitutional order, to undermine the effectiveness of EU law on the territory of a Member State. 50 While the approach of the French, German and Polish Constitutional Courts are rather clear on the review of compliance of fundamental rights by EU law, several other constitutional courts have not sufficiently clarified their position, or, more specifically, they have not indicated to which extent it is valid after the Treaty of Lisbon. This is the case, in particular, for the Czech Constitutional Court. The latter held in its Lisbon I ruling that “[a]s regards possible conflict between the standard of protection of human rights and fundamental freedoms ensured by the constitutional order of the Czech Republic and the standard ensured in the European Union, it is appropriate to point out that protection of fundamental rights and freedoms falls in the area of the “material core” of the Constitution, which is beyond the reach of the constitutional framers … If, from this point of view, the standard of protection ensured in the European Union were unsuitable, the bodies of the Czech Republic would have to again take over the transferred powers, in order to ensure that it was observed”. 51 48 SK 45/09 , points 1.5 and 2.2. 49 SK 45/09 , points 2.6 and 2.7. 50 Melloni , paragraph 59. See also Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125, paragraph 3, and Case C-409/06 Winner Wetten [2010] ECR I-8015, paragraph 61. 51 Judgement of 26 November 2008, Pl. ÛS 19/08 , Lisbon I ruling , published under 446/2008 Sb., N 201/51 SbNU 445, paragraph 196.