The Conseil constitutionnel refuses to review primary legislation in the light of Community law. A distinction is made between review of consti- tutionality, which is reserved for the Conseil constitutionneland the com- patibility with treaties, the conventionnalité, which is the province of the ordinary courts.20In its decision IVGof 15 January 1975 the Conseil con- stitutionneldecided that it had no jurisdiction to review the conformity of
19 Case 158/80Rewe-Handelsgesellschaft Nord mbH and Rewe-Markt Steffen v Hauptzollamt Kiel (butter-buying cruises) [1981] ECR 1805, paragraph 44.
20 For a critique of this ‘dédoublement discret de la justice constitutionnelle’ D de Béchillon, ‘De quelques incidences du controle de la conventionnalité internationale des lois par le juge ordinaire. (Malaise dans la Constitution)’, RFDA, 1998, 225.
a pending bill with a treaty provision, in this case the ECHR.21The Conseil constitutionnelheld that‘une loi contraire à un traité n’est pas, pour autant, contraire à la Constitution’. Its decisions on the constitutionality of loishad an absolute and final character, while the supremacy of treaties over lois was of a relative and contingent nature. Relative, because the supremacy would be limited to the sphere of the Treaty, and contingent, because Article 55 of the Constitution submits supremacy to the condition of reci- procity. Consequently, the ordinary courts, first the Cour de cassationand later the Conseil d’Étatassumed jurisdiction under Article 55 to ensure the primacy of treaties and, if necessary, to set aside conflicting legislation.22 The French system thus distinguishes between the contrôle de constitution- nalité concentré a prioriand the contrôle de conventionnalité diffus a postériori.
The distinction applies also to Community law which is not considered to be included in the bloc de constitutionnalitéprotected by the Conseil consti- tutionnel. Bills are not reviewed on their compatibility with Community law; the ordinary courts ensure the observance and application of Community law on a case-by-case basis, once the bill has become a loiand in the context of a concrete case or controversy.
Obviously the case of the Conseil constitutionnelis special: the Conseil only reviews Bills before their promulgation, and not those related to a particular case; the time limit is extremely short (1 month) and the bulk of treaty and Community law is enormous for the Conseilto exercise a full review. In addition, if the assumption of jurisdiction by the constitutional judge entails a denial of jurisdiction on the part of the ordinary courts, which is not excluded given the history of the case law of the Conseil d’É- tat, the effectiveness of Community law would gain nothing. But why cannot both the constitutional council and the ordinary courts, each within their jurisdiction, ensure that Community law is observed: the Conseil constitutionnela priori and in general; the ordinary courts a poste- riori and on a case-by-case basis? The text of the Constitution does not seem to exclude that possibility: Article 55 does not attribute jurisdiction to the Conseil constitutionnelto review the conventionnalité, but it does not attribute it to the ordinary courts either.23 There is no reason why not both
21 Conseil constitutionnel, decision n. 74–54 DC of 15 January 1975, Interruption volontaire de grossesse (IVG), published on www.conseil-constitutionnel.fr ; confirmed on numerous occasions since.
22 See Part 1. When the Conseil constitutionnelacts as an election court, thus as an ordinary court, it does award precedence to treaty provisions over conflicting legislation, Conseil constitutionnel, decision n. 88–1082/1117 AN of 21 October 1988, Val d’Oise, RFDA, 1988, 908; AJDA, 1989, 128; published on www.conseil-constitutionnel.fr.
23 De Béchillon proposes the introduction of an exception d’inconventionnalitébefore the Conseil constitutionnel whereby an ordinary court, confronted with a conflict between a loi and a treaty provision would have to refer to the constitutional council, so that the con- trol of the loiwould be in the hands of one court; D de Béchillon, art. cit.; Obviously, such a procedure would for Community law amount to an infringement of the basic princi- ples of direct effect and supremacy as laid down in Simmenthal.
the Conseil constitutionneland the ordinary courts could assume jurisdic- tion, each with distinct legal effects.
14.1.3.2. The Bundesverfassungsgericht
The German Federal Constitutional Court has, since 1971, rejected juris- diction to review the compatibility of national law with Community law:
‘The Federal Constitutional Court is not competent to answer the question of whether a norm of ordinary municipal law is incompatible with a provision of Community law invested with priority. The settlement of such a conflict of norms is a matter left to the courts with competence over the trial proceedings’.24 However, it is submitted that the jurisdiction of the ordinary courts should not exclude jurisdiction of the Constitutional Court. In cases coming within its jurisdiction, i.e. cases brought before it regularly and in accor- dance with the procedural requirements, the Bundesverfassungsgericht should also review the compatibility of German law with Community law and possibly annul legislation, or otherwise set aside this legislation.25 14.1.3.3. The Arbitragehof
The Belgian Arbitragehofdenies jurisdiction to review the compatibility on Statutes and Decrees26with treaties directly, arguing that it has only been given jurisdiction, under Article 142 of the Constitution and the Special Act on the Court of Arbitration, to review the compatibility of Statutes with certain specified provisions of the Constitution.27This is not differ- ent for Community law, even if the jurisdiction could in this case be derived directly from Community law itself under Simmenthal. On the other hand, the Arbitragehof does review the compatibility with treaties
24 Bundesverfassungsgericht, decision of 9 June 1971, Alphons Lütticke, BverfGE 31, 145;
Oppenheimer, The Cases, 415, at 418.
25 The Bundesverfassungsgerichtdoes not only annul legislation and declare it void. It may also arrive at other conclusions, for instance declare that a particular rule may become unconstitutional in time, or that a particular situation is in fact unconstitutional, but that reparation is left to the legislature. Some of these decisions may also apply in the context of Community law. However, the last example may not pass the standards imposed by the Court of Justice, which requires the absolute unenforceability of conflicting national law. On the various types of decisions of the Bundesverfassungsgericht, see W Rupp-von Brünneck, ‘Admonitory Functions of Constitutional Courts. Germany: The Federal Constitutional Court’, 20 AJCL, 1972, 387.
26 Primary legislation deriving from the federated entities.
27 Twice, in 1983 and 1989, has a proposal been tabled to give the Arbitragehofjurisdiction to annul legislation for violation of Community law, in a direct action for annulment, alongside the competence of all the ordinary courts to review legislation in the case at hand, see H Bribosia, ‘Applicabilité directe et primauté des traités internationaux et du droit communautaire. Réflexions générales sur le point de vue de l’ordre juridique belge’, RBDI, 1996, 33, at 70.
and Community law indirectly, through violation of the reference standards in the Constitution. As the Court has held on numerous occasions, Articles 10 and 11 of the Constitution28 have general scope in that they forbid all discrimination irrespective of its nature, so that the constitu- tional rules of equality and non-discrimination apply with respect to all rights and liberties that have been granted to Belgian citizens, either by the Constitution or by directly applicable rules of international treaties.
The latter category also includes the directly applicable provisions of Community law, including secondary Community law.29
The technique of reviewing the respect for Community law through the constitutional principles of non-discrimination and equality aims at ensuring the primacy, at least in practice, of Community law. But it is arti- ficial and sometimes far-fetched. The Cour d’arbitragedoes not want to be seen as assuming new competences which it has not been given in the Constitution or in the Special Act on the Court of Arbitration. The tech- nique of indirect control does attain the effects required by Community law, and it does imply that a statute or decree could be declared uncon- stitutional and be annulled accordingly, since it infringes Community law and therefore also Articles 10 and 11 of the Constitution.
14.1.3.4. The Corte costituzionale
In the case of the Italian Corte costituzionalea distinction is made between direct actions and preliminary rulings.30In the latter case, the review of the compatibility of an Italian Act is a matter for the referring court. As has been discussed,31since Granital32the Corte costituzionalehas accepted that
28 The Articles on equal treatment and the prohibition of discrimination, which do operate as constitutional reference standards.
29 See e.g. Arbitragehof, decision n. 13/2000 of 2 February 2000, Radio Flandria SA et al, www. arbitrage.be; Arbitragehof, decision n. 7/95 of 2 February 1995, NV Solvay and NV Bru Chevron et al, www.arbitrage.be. The condition that the provision is directly effective does not require it to create rights for individuals; the Cour d’arbitragecontrols whether the authorities under scrutiny have complied with their obligations. See M Melchior and P Vandernoot, ‘Controle de constitutionnalité et droit communautaire dérivé’, RBDC, 1998, 3, at 4–5.
30 The functions of the Corte costituzionaleare described in Art. 134 of the Constitution. The Court reviews the constitutionality of national and regional statutes and settles jurisdic- tional conflicts (conflicts over the attribution of competence) between the different branches of the State; between the State and the Regions and between the Regions.
Review cases can be brought directly by specified applicants (roughly State and Regions), not by individuals; or indirectly, by way of a reference for preliminary ruling from an ordinary court. The latter category counts for three quarters of the Court’s work- load. (In addition, under Art. 134 the Corte costituzionalerules on impeachments of the President according to the norms of the Constitution).
31 See Part 1.
32 Corte costituzionale, decision n. 170/84 of 8 June 1984, Granital, Giur. Cost. I 1098; English translation in Oppenheimer, The Cases, at 642.
Community law is given effect directly and immediately as against con- flicting Italian law by all the ordinary courts, without the need to refer the issue to the Cortefirst. Thus every Italian court reviews the compatibility of national and regional statutes with Community law and sets them aside in case of a conflict with directly effective provisions of Community law.
The courts consider the conflicting Italian measures inapplicable. The Corte costituzionale denies jurisdiction to review such statutes and leaves the issue entirely to the referring court, including, in a relevant case, the refer- ence for a preliminary ruling to the European Court. References to the Cortefrom ordinary courts are declared inadmissible.
On the other hand, where it is the only and principal judge, the Constitutional Court does review the compatibility with Community law, in terms of the constitutionality of the act under revision, through the parameter of Article 11 of the Constitution.33 In decision n. 384/94,34in the context of a direct procedure brought by the State against a regional statute before its entry into force, the Corte costituzionaledeclared that the regional act infringed a Community Regulation and that therefore there was a violation of Article 11 of the Constitution.35This way, the violation of Community law by a regional entity of the State – which entails the lia- bility of the State under Community law – is prevented. As explained extra judicially by a former President of the Corte costituzionale, Renato Granata, the main reason for the difference in approach between direct actions against regional statutes and cases brought before the Corte by way of preliminary reference, is that in the former case there simply is no referring court which could disapply the Italian norm conflicting with Community law.36The role of guardian of correct adaptation of national law to Community law can only be assumed by the Constitutional Court itself.37 With the declaration of unconstitutionality conflicting regional
33 This used to be the stance of the Corte costituzionalebefore Granitalin relation to every case of conflict between an Italian statute and a provision of Community law: a breach of Community law was considered to constitute a violation of Art. 11 of the Constitution, see Corte costituzionale, decision n. 183/73 of 27 December 1973, Frontini, 18 Giur. Cost. I 2401; English translation in Oppenheimer, The Cases, 629; [1974] 2 CMLR 372; French ver- sion in RDI, 1989, 64 and Corte costituzionale, decision n. 232/75 of 30 October 1975,ICIC, 20 Giur. Cost. I 2211; English summary in CML Rev(1975) 439.
34 Corte costituzionale, decision n. 384/94 of 10 November 1994, Regione Umbria, Foro italiano, 1994, I, 3289, available on www.giurcost.org.
35 On this case law see e.g.G Amoroso, ‘La giurisprudenza costituzionale nell’anno 1995 in terme di rapporto tra ordinamento comunitario e ordinamento nazionale: verso una
“quarta” fase?’, Foro italiano, 1996, V, 73; see also G Tesauro, ‘Community law and national courts – An Italian Perspective’, in D O’Keeffe and A Bavasso (eds), Judicial Review in European Union Law. Liber Amicorum in Honour of Lord Slynn of Hadley, Vol I, (The Hague, Kluwer Law International, 2000), 391, at 394–95.
36 See B Genevois, ‘Entretien avec le Président de la Cour constitutionnelle italienne: Renato Granata’, www.conseil-constitutionnel.fr/cahiers/ccc6/entretien.htm.
37 See G Tesauro, ‘Community law and national courts – An Italian perpective’, in D O’Keeffe and A Bavasso (eds), Judicial Review in European Union Law. Liber Amicorum in Honour of Lord Slynn of Hadley, Vol I, (The Hague, Kluwer Law International, 2000), 391, at 394.
legislation does not come into existence and the State complies with its obligation under Community law to remove inconsistencies and with the constitutional principle of legal certainty.
In decision 94/95 this position was extended and now applies to all direct actions brought either against regional acts or acts adopted by the Provinces or against national statutes in so far as the infringement of Community law entails a violation of the constitutionally guaranteed competences of the regions.38Since, in these cases, the Corte costituzionale is the only court involved in the procedure, the question of the possibility – or duty – of sending references for preliminary ruling to the Court of Justice becomes even more acute.39While this stance may be difficult to understand in the light of the position of the Court in indirect procedures, it does make perfect sense in practical effect. The mere ‘non-application’
of the conflicting norm would in this type of case before the constitutional court not comply with the duty imposed on the State to do everything necessary to give full and correct effect to Community law, and, in the Italian logic, with the obligation under Article 11 of the Constitution, to give full and correct effect to the Community obligations.40In addition, it does not conflict with the Simmenthalduty of ordinary courts to disapply conflicting national law in cases coming within their jurisdiction.
However, it is submitted that also in cases on reference from an ordinary court, the Corte should review the compatibility of Italian law with Community law, as it is ‘a court’ under the Simmenthalmandate.
14.1.3.5. Concluding Remarks
It thus appears that only in Belgium and in certain cases in Italy, the con- stitutional court may actually annul legislation on grounds of incompati- bility with Community law. Nevertheless, it is submitted that all constitutional courts are under a Community obligation to include Community law in their control of the lawfulness of acts submitted to them. Under the principle of equivalence, and assuming that the consti- tutional courts fall under the notion ‘all courts’ in Simmenthal, the consti- tutional courts must in cases coming within their jurisdiction also include Community law in their review, and where they have competence to annul legislation, the minimum requirement of disapplication would in their case transform into an obligation to annul. Most constitutional
38 Corte costituzionale, decision n. 94/95 of 30 March 1995, Regione Siciliana, Foro italiano, 1995, I, 1081; confirmed in Corte costituzionale, decision n. 482/95 of 7 November 1995, Regione Emilia Romagna et al, Rivista italiana di diritto pubblico comunitario, 1996, 749 and decision n. 520/ 95 of 28 December 1995, Regioni Lomardia e Veneto, Rivista italiana di diritto pubblico comunitario, 1996, 768, see G Amoroso, art. cit., at 81–82.
39 See supra.
40 See Corte costituzionale, decision n. 94/95 of 30 March 1995, Regione Siciliana, Foro italiano, 1995, I, 1081.
courts have not followed suit and refute the Simmenthal mandate for themselves.
14.2. COMMUNITY LAW AND THE NATIONAL CONSTITUTIONAL COURTS’ MANDATE
It has been demonstrated that the national constitutional courts do not, or only to a limited extent, act upon the Simmenthal mandate themselves, even if they expect the ordinary courts to do so. However, the direct effect and supremacy of Community law have additional consequences on the constitutional courts, at least in the Community orthodoxy. Let us again very shortly revise the Community doctrines of direct effect and supremacy of Community law. Community law that is directly effective must be given effect and be applied in the courts of the Member States, with priority over national law, however framed and including, even, the national Constitution. In Internationale Handelsgesellschaft the Court expressly established the precedence of Community law over Member States’ national constitutions, considering that ‘the validity of a Community measure or its effect within a Member State cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that State or the principles of a national constitutional structure’.41 It follows that the national constitutionality of rules of primary and secondary Community law cannot be examined. In addition, under Foto-Frost, all national courts, including the national constitutional courts are precluded from declaring acts of the Community institutions invalid. The Court of Justice has exclusive jurisdiction to declare void an act of a Community institution, and the coherence of the Community legal system requires that where the validity of a Community act is challenged before a national court the power to declare the act invalid must also be reserved to the Court of Justice.42
The consequences for the mandate of the national constitutional courts are straightforward from the point of view of Community law: they too must give effect to Community law, whether primary or secondary, with precedence over national law, including the Constitution. They may not, therefore, review the validity of the Treaties, or of secondary Community law, and must, where necessary, set aside or disapply national constitu- tional provisions in order to give full effect to Community law. To put it bluntly: national constitutional values, fundamental rights and core principles of the Constitution must all give way to Community law; and
41 Case 11/70 International Handelsgesellschaft v Einfuhr- und Vorratstelle für Getreide und Futtermittel [1970] ECR 1125, paragraph 3.
42 Case 314/85Firma Foto-Frost v Hauptzollamt Lübeck-Ost [1987] ECR 4199, paragraphs 15 and 17.
their natural guardians, the constitutional courts, must suspend the exer- cise of their usual function when it comes to Community law.43
Now, while this picture may represent the strict Community ortho- doxy, it does not do justice to reality. National constitutional values and fundamental rights are not simply deleted when Community law comes on their path. Community law does not make tabula rasa. These constitu- tional values may have their corollary in the Treaties or may be protected by the Court of Justice and national courts as general principles of Community law. As is well known, the common constitutional heritage of the Member States serves as a source of inspiration for the Court, so it claims, in developing its case law on the general principles of Community law and in interpreting rules and principles already established in Community law. It does mean, however, that the national principles and values are replaced by Community counterparts.
When it comes to the mandate of the constitutional courts therefore, the direct effect and supremacy of Community law entail primarily a neg- ative command not to enforce the Constitution and constitutional norms as against Community law. The impact of Community law on the national constitutional courts’ mandate may be broken up into four elements.
Firstly, Community law does not prevent the prior review of the constitu- tionality of the Treaties, i.e. the scrutiny of the compatibility with the Constitution of the Treaties beforetheir ratification. Secondly, Community law does prevent the review of the constitutionality of the Treaties and of membership upon the entry into force of the Treaties. Thirdly, and coming to secondary Community law, ex antescrutiny of secondary Community law will be considered. And fourthly, in the same way as review of the constitutionality of the Treaties is prohibited upon their entry into force, so can secondary Community law never be reviewed on its constitution- ality. These elements will be considered in turn. For each case, the issue of the mandate of the constitutional courts will be considered first from a European angle. Subsequently, the perspective will change to that of the national constitutional courts.
43 For a nuance of the classic approach to supremacy, defending the position of the ECJ see J Wouters, ‘National Constitutions and the European Union’, LIEI, 2000, 1, esp at 46ff.