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The “Polemical” Spirit of European Constitutional Law: On the Importance of Conflicts in EU Law

Published online by Cambridge University Press:  06 March 2019


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Recently, scholars have argued of the necessity of going beyond “judicial dialogues” and “conflict-and-power” approaches to the analysis of the role of national Constitutional Courts in the Union. On the one hand, there are risks connected to a “too welcoming an approach by national constitutional courts to EU law”; on the other hand, it is possible to criticize both the Court of Justice of the EU (CJEU) and some national Constitutional Courts for other, less cooperative, decisions. I share this cautious approach for many reasons, and primarily because the preliminary ruling mechanism does not exhaust all the possible means of communication between constitutional courts and the CJEU. For instance, what Komárek calls “parallel references” can serve, in some circumstances, as a technique of alternative (or hidden) dialogue, that has favored a sort of “remote dialogue” over the years. My sole point of disagreement with this scholarly position is over the role of conflicts in this scenario. Whilst Komárek seems to confine conflicts to phenomena of mere resistance or to “‘cold’ strategic considerations,” in this work I am going to adopt a much broader idea of conflict, which goes beyond mere “conflicts and power games.”

Part One
Copyright © 2015 by German Law Journal GbR 


1 Komárek, Jan, The Place of Constitutional Courts in the EU, 9 Eur. Const. L. Rev. 420 (2013).Google Scholar

2 Id. at 449.Google Scholar

3 See Martinico, Giuseppe, Judging in the Multilevel Legal Order: Exploring The Techniques Of ‘Hidden Dialogue', 21 King's L. J. 257 (2010).Google Scholar

4 Komárek, supra note 1, at 436.Google Scholar

5 Martinico, supra note 3; Martinico, Giuseppe, Multiple loyalties and dual preliminarity: The pains of being a judge in a multilevel legal order, 10 Int'l J. Const. L. 871 (2012).Google Scholar

6 This is the formula (“dialogo a distanza”) used by Gabriella Angiulli, Il rinvio pregiudiziale alla Corte di giustizia dell'Unione europea da parte dei Giudici costituzionali degli Stati membri, (2011).Google Scholar

7 Komárek, supra note 1, at 422. The author was referring to the view expressed by Arthur Dyevre, European Integration and National Courts: Defending Sovereignty under Institutional Constraints? 9 Euro. Const. L. Rev. 139 (2013).Google Scholar

8 Orders of 17 December 2013 and of 14 January 2014, 2 Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] 1390/12; 2 BVerfGE 1421/12; 2 BVerfGE 1438/12; 2 BVerfGE 1439/12; 2 BVerfGE 1440/12; 2 BVerfGE 1824/12; 2 BvE 6/12, available at Scholar

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10 Case C–399/11, Stefano Melloni v. Ministerio Fiscal, available at Mr. Melloni, an Italian citizen living in Spain, was convicted in absentia for bankruptcy fraud by a sentence delivered by the Tribunale of Ferrara and arrested by the Spanish police. On the basis of the Council Framework Decision on the European Arrest Warrant (2002/584/JHA as amended by the Framework Decision 2009/299/JHA) the Italian authorities asked for the activation of the mechanism. Mr. Melloni opposed surrender to the Italian authorities, by arguing the violation of the right to defence. The Audiencia Nacional (a special Spanish high court) decided to surrender Mr. Melloni to Italy since it considered the right to defence was respected (Mr. Melloni, in fact, was aware of the trial, opted for the asbentia and appointed two lawyers to defend himself). Against the order of the Audiencia Nacional, Mr. Melloni opposed a recurso de amparo (a direct action for the protection of constitutional rights guaranteed by the Constitution) before the Spanish Constitutional Court.Google Scholar

11 After the delivery of this Article, two other Constitutional Courts raised preliminary questions ex Art. 267 TFEU to the CJEU: the Ustavno sodišče (Slovenian Constitutional Court), Order U-I-295/13) available at and the Trybunał Konstytucyjny (Polish Constitutional Court) decision K 61/13, available at Scholar

12 Melloni, Case C-399/11 at para.58.Google Scholar

13 Id. at para.60.Google Scholar

14 To quote the formula used, also recently, by some scholars: Bogdandy, Armin von & Schill, Stephan, Overcoming absolute primacy: Respect for national identity under the Lisbon Treaty, 48 Common Mkt. L. Rev. 1417 (2011).Google Scholar

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16 Pérez, Aida Torres, Melloni in Three Acts: From Dialogue to Monologue, 10 Eur. Const. L. Rev. 308 (2014).Google Scholar

17 Case C-314/08, Filipiak, 2009 E.C.R. I-11049.Google Scholar

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19 “The ECtHR's margin of appreciation doctrine plays a role similar to that of the reverse Solange jurisprudence of Schmidberger and Omega—allowing the court to acknowledge and defer to national specificities in the understanding of common principles—while the BVG's Görgülü doctrine corresponds to Solange—allowing the national court to defer to judgments by the ECtHR, as long as the latter provides, in general, equivalent protection of fundamental rights.” Charles F. Sabel & Oliver Gerstenberg Constitutionalising an Overlapping Consensus: The ECI and the Emergence of a Coordinate Constitutional Order, 16 Eur. L. J. 511 (2010).Google Scholar

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25 Bogdandy, von & Schill, supra note 14.Google Scholar

26 Article 4 TEU states,Google Scholar

1. In accordance with Article 5, competences not conferred upon the Union in the Treaties remain with the Member States. 2. The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State. 3. Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties. The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. The Member States shall facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardise the attainment of the Union's objectives.

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29 I developed this thesis in Martinico, Giuseppe, What lies behind Article 4.2 TEU?, in National constitutional identity and European integration 93 (Alejandro Saiz Arnaiz & Carina Alcoberro Llivina eds., 2013).Google Scholar

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31 On this process, see Gordillo, Luis I., Interlocking Constitutions Towards an Interordinal Theory of National, European and UN Law 66 (2012). The Author describes a process, consisting of two stages—“the establishment of the red lines” and “the rapprochement of positions.”Google Scholar

32 Pizzorusso, Alessandro, Common constitutional traditions as Constitutional Law of Europe? Sant'Anna Legal Studies (STALS) Research Paper, 1/2008, (2008).Google Scholar

33 See, for instance, Articles 9 (“right to marry and right to found a family”), 10(2) (“freedom of thought, conscience and religion”), 14(3) (“right to education”), 27 (“workers’ right to information and consultation within the undertaking”), 28 (“right of collective bargaining and action”), 30 (“protection in the event of unjustified dismissal”, and 34–36 (“social security and social assistance”, “health care” and “access to services of general economic interest”). A possible effect of such provisions might be to increase the reference to the national traditions of Member States, a sort of margin of appreciation doctrine spread at EU level—especially when the reference to national legislations and practices is not accompanied by that to EU law—but of course this also implies the risk of an erroneous reference to national legislations. Title IV, devoted to “Solidarity,” is particularly rich in such references and perhaps it is not a coincidence, since in this field the EUCFR is more innovative than in other cases (with the exceptions of the title devoted to “Citizens’ rights”, for obvious reasons) compared with the ECHR.Google Scholar

34 After the delivery of this article, this attention paid to fundamental rights has been somehow questioned by Opinion 2/13 delivered by the CJEU and concerning the accession of the EU to the ECHR. CJEU, Opinion 2/13, pursuant to Article 218(11) TFEU, (Dec. 18, 2014), However, despite this Opinion, I still think that the EU has not abandoned its project to transform itself into a Europe of Rights.Google Scholar

35 See Ruggeri, Antonio, Trattato costituzionale, europeizzazione dei ‘controlimiti’ e tecniche di risoluzione delle antinomie tra diritto comunitario e diritto interno (profili problematici), available at (2005). See also, Mattias Kumm, The jurisprudence of constitutional conflict: Constitutional supremacy in Europe before and after the Constitutional Treaty, 11 Eur. L. J. 262 (2005).Google Scholar

36 For instance, the many provisions of the Charter of Fundamental Rights of the EU. I reflected on these clauses in another piece: Giuseppe Martinico, Chasing the European Court of Justice: On Some (Political) Attempts to Hijack the European Integration Process, 14 Int'l Community L. Rev. 243 (2012).Google Scholar

37 “European unification on the basis of a union of sovereign states under the Treaties may, however, not be realised in such a way that the Member States do not retain sufficient space for the political formation of the economic, cultural and social circumstances of life. This applies in particular to areas which shape the citizens’ circumstances of life, in particular the private space of their own responsibility and of political and social security, which is protected by the fundamental rights, and to political decisions that particularly depend on previous understanding as regards culture, history and language and which unfold in discourses in the space of a political public that is organised by party politics and Parliament. Essential areas of democratic formative action comprise, inter alia, citizenship, the civil and the military monopoly on the use of force, revenue and expenditure including external financing and all elements of encroachment that are decisive for the realisation of fundamental rights, above all as regards intensive encroachments on fundamental rights such as the deprivation of liberty in the administration of criminal law or the placement in an institution. These important areas also include cultural issues such as the disposition of language, the shaping of circumstances concerning the family and education, the ordering of the freedom of opinion, of the press and of association and the dealing with the profession of faith or ideology.” Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], cases 2 BvE 2/08 at para. 249.Google Scholar

38 More recently see a decision of the Czech Constitutional Court which did not have to do with constitutional identity but which demonstrates the permanent risks of conflicts even after the entry into force of Article 4(2) TEU. Ústavní soud (Czech Constitutional Court, judgment of 31 January, PI. ÚS 5/12, Slovak Pensions XVII. The English translation is available at http:// Scholar

39 Martinico, Giuseppe, The Tangled Complexity of the EU Constitutional Process: The Frustrating Knot of Europe (2012).Google Scholar

40 The mot-problème (Edgar Morin, Introduzione al pensiero complesso, 1993, and Edgar Morin, Conoscenza della conoscenza, 1989) complexity is polysemous. Millard, for instance, recalls at least four different meanings of the word ‘complex’ (Eric Millard, Eléments pour une approche analytique de la complexité, in Droit et complexite Pour une nouvelle intelligence du droit vivant 141 (Mathieu Doat, Jacques Le Goff, & Philippe Pédrot eds., 2007). Complex, in fact, is often used as a synonym of “complicated” and in this sense an antinomy may be understood as complex given its difficulty in being solved because of the legal abundance caused by the coexistence of so many legislators in the EU and of the consequent difficult manageability of the several materials, languages and meanings present in the multilevel system. Secondly, complexity may refer “à la situation d'un objet fragmentée, découpée. L'ensemble social n'est pas simple, au sens d'une théorie des ensembles: il résulte de l'addition ou de l'interaction entre une pluralité d'ensembles partiels, eux- měmes sans doute s'entreměles (Id. 143).” Thirdly, complex is understood as non-aprioristic/pragmatic; in this respect a reason is complex when it cannot infer choices and decisions from general, clear and abstract principles which were defined aprioristically. On Europe as a complex system, see Morin, Edgar, Pensare l'Europa (1988).Google Scholar

41 Scholars have identified at least four different meanings of primacy/supremacy in CJEU case law. Moreover, the notion of primacy enshrined in Art I-6 of the Constitutional Treaty seems to be different from that used by the CJEU. See, e.g., Monica Claes, The National Courts’ Mandate in the European Constitution 100 (2006). In order to find a solution to this ambiguity, some scholars have devised a ‘law of laws'; see Eijsbouts, Willem Tom & Besselink, Leonard, Editorial: The Law of Laws—Overcoming Pluralism, 4 Eur. Const. L. Rev. 395 (2008).Google Scholar

42 See, for instance, the piece by Dani, Marco, Economic and Social Conflicts, Integration and Constitutionalism in Contemporary Europe, LSE ‘Europe in Question’ Discussion Paper Series, 13/2009, available at (2009). See also the special issue of the European Law Journal (Volume 18, Issue 5) devoted to this subject and edited by Damian Chalmers and Marco Dani with contributions by Michelle Everson, Christian Joerges, Alexander Somek, and Floris de Witte. See also Dani, Marco, Il diritto pubblico europeo nella prospettiva dei conflitti (2013).Google Scholar

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46 Among others, see Cour d'Arbitrage [Belgian Court of Arbitration], 19 February 1997, no. 6/97, available at Google Scholar

47 Among others, see Verfassungsgerichtshof VfGH [Austrian Constitutional Court], 10 March 1999, B 2251/97, B 2594/97, available at Google Scholar

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54 Among her works, see Mouffe, Chantal, The Return of the Political (1993); Mouffe, Chantal, The Democratic Paradox (2000); Mouffe, Chantal, On the Political (2005) (“I use the concept of agonistic pluralism to present a new way to think about democracy which is different from the traditional liberal conception of democracy as a negotiation among interests and is also different from the model which is currently being developed by people like Jürgen Habermas and John Rawls. While they have many differences, Rawls and Habermas have in common the idea that the aim of the democratic society is the creation of a consensus, and that consensus is possible if people are only able to leave aside their particular interests and think as rational beings. However, while we desire an end to conflict, if we want people to be free we must always allow for the possibility that conflict may appear and to provide an arena where differences can be confronted. The democratic process should supply that arena.”); Mouffe, Chantal, Hearts, Minds and Radical Democracy, available at (1998).Google Scholar

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57 “Because for me that is what politics is about. If there is politics in society it is because there is conflict […] I started to look at Freud. He does not really develop this idea from the perspective of the collective subject; he develops it more in terms of the individual. I consider the idea of the division of the subject—Eros and Thanatos—and the way the concept of the drive is linked to conflict, very important for politics. I have also been interested in the work of Elias Canetti, in ‘Masse und Macht', when he insists that there is a tension between the individuality and the drive to be part of the mass. Again, the idea that we are divided is predominant.” Chantal Mouffe, Hegemony, Democracy, Agonism and Journalism: An Interview with Chantal Mouffe, 7 Journalism Stud. 964 (2006),,_democracy,_agonism_and_journalism_%28LSERO%29.pdf.Google Scholar

58 Noonan, Jeff, Democratic society and human needs 193 (2006).Google Scholar

59 Mouffe, Chantal, On the Political 120 (2005).Google Scholar

60 Case C-36/02, Omega, 2004 E.C.R. I–9609.Google Scholar

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62 Case C-34/09, Gerardo Ruiz Zambrano v. Office National de l'emploi, 2011 E.C.R. I-01177.Google Scholar

63 Case C-173/09, Elchinov, 2010 E.C.R. I-08889.Google Scholar

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73 As Le Goff put it when writing about the relation between complexity and labour law: “Comme si s'on optait pour la technique homéopathique de lutte contre le mal par le mal lui-měme, le désordre devenant paradoxalement vecteur d'ordre”, Jacques Le Goff, Le droit du travail, terre d'élection de la complexité, in Droit et complexite Pour une nouvelle intelligence du droit vivant 106 (Mathieu Doat, Jacques Le Goff & Philippe Pédrot eds., 2007).Google Scholar

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79 Case C–442/00, Rodríguez Caballero, 2002 E.C.R. I–11915.Google Scholar

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85 Case C–314/08, Filipiak, 2009 E.C.R. I–11049.Google Scholar

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89 Case C–416/10, Križan & Others, (Jan. 15 2013), Scholar

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91 “Finally, as a supreme court, the Najvyšší súd Slovenskej republiky is even required to submit a request for a preliminary ruling to the Court of Justice when it finds that the substance of the dispute concerns a question to be resolved which comes within the scope of the first paragraph of Article 267 TFEU. The possibility of bringing, before the constitutional court of the Member State concerned, an action against the decisions of a national court, limited to an examination of a potential infringement of the rights and freedoms guaranteed by the national constitution or by an international agreement, cannot allow the view to be taken that that national court cannot be classified as a court against whose decisions there is no judicial remedy under national law within the meaning of the third paragraph of Article 267 TFEU. In the light of the foregoing, the answer to the first question is that Article 267 TFEU must be interpreted as meaning that a national court, such as the referring court, is obliged to make, of its own motion, a request for a preliminary ruling to the Court of Justice even though it is ruling on a referral back to it after its first decision was set aside by the constitutional court of the Member State concerned and even though a national rule obliges it to resolve the dispute by following the legal opinion of that latter court.” Id. Google Scholar

92 “The Court has concluded therefrom that the existence of a rule of national law whereby courts or tribunals against whose decisions there is a judicial remedy are bound on points of law by the rulings of a court superior to them cannot, on the basis of that fact alone, deprive the lower courts of the right provided for in Article 267 TFEU to refer questions on the interpretation of EU law to the Court of Justice (see, to that effect, Rheinmühlen-Düsseldorf, paragraphs 4 and 5, and Cartesio, paragraph 94). The lower court must be free, in particular if it considers that a higher court's legal ruling could lead it to give a judgment contrary to EU law, to refer to the Court questions which concern it (Case C-378/08 ERG and Others 2010 E.C.R. I-0000, paragraph 32).” Melki and Abdeli, Joined Cases C–188/10 and C–189/10 at para. 42.Google Scholar

93 Article 61–1states, “If, during proceedings in progress before a court of law, it is claimed that a statutory provision infringes the rights and freedoms guaranteed by the Constitution, the matter may be referred by the Conseil d'État or by the Cour de Cassation to the Constitutional Council, within a determined period. An Organic Law shall determine the conditions for the application of the present article.” On this, see Fabbrini, Federico, Kelsen in Paris: France's constitutional reform and the introduction of a posteriori constitutional review of legislation, 9 German L.J., 1297 (2008).Google Scholar

94 The saga is indeed multilevel: during a proceeding initiated by Mr. Melki and Mr. Abdeli, two Algerians, unlawfully present in France. They were arrested and put into detention after a police control carried out in an area close to the Belgian border, on the basis of Art. 78–2, p. 4, of the French Code of Criminal Procedure. The judge deciding on provisional detention decided to refer to the Court of Cassation (as we know the French Constitutional Reform gave the Court de Cassation and the Conseil d'État a role of filter of the questions raised by the lower courts) a question concerning the consistency with the French Constitution of the possibility to check the identity of persons in a border area. The referring judge had in mind Art. 88-1 of the Constitution, which reads ‘The Republic shall participate in the European Union constituted by States which have freely chosen to exercise some of their powers in common pursuant to the [Treaties]', in so far as Union law ensures the absence of internal border controls for persons. The Court de Cassation deciding on the possibility to pass the question to the French Conseil Constitutionnel, aware of the consequence on European Union law of a decision like that and doubting the mechanism of the priority of the constitutional question devised by the French Reform, raised a preliminary reference to the CJEU.Google Scholar

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