CYIL vol. 10 (2019)

VÁCLAV STEHLÍK

CYIL 10 ȍ2019Ȏ

3. Evaluation and comments The decision in CCB opens a number of issues which are worth discussing. The following considerations will focus especially on the role of the CCC in relation to its own referrals to the CJEU and the evaluation of the instructions given to ordinary courts in relation to CILFIT criteria. 3.1 Commentary on referrals by the CCC First of all CCB case opened the issue whether the CCC could initiate the preliminary ruling procedure. It may be recalled that up to now the CCC had not clearly stated whether it would be the court under art. 267 TFEU. This issue was first reflected in Sugar Quotas case 52 where the CCC concluded that the decision in this matter may be legitimate at least in relation to proceedings on the abstract norm control . 53 It also referred to the varying practice of other constitutional courts. Whereas some constitutional courts principally refuse to use the preliminary ruling procedure, 54 other courts actively use it. In Sugar Quotas case the CCC did not give a clear answer as to its role in the preliminary ruling procedure; 55 the same is applicable to the subsequent case-law. Consequently, the CCB case is the first decision where the CCC opened the issue, though in the limited context of only one type of procedure, namely the constitutional complaints lodged by individuals, and even more narrowly in relation to the right to statutory judge/fair judicial process guaranteed by the Czech Constitution. Even though the task for the CCC is to decide on the constitutionality issues, including ultima ratiae the constitutionality of the EU law, 56 in principle it should not decline its competence to refer questions to the CJEU so as to ascertain about the accurate content of the EU law. We assume that this procedure could help the CCC to decide whether the EU law, properly and correctly interpreted, is or is not constitutional. 57 In other words, the possible declaration of unconstitutionality should be based not on the estimated or probable interpretation of the EU law, but on the authoritative interpretation given by the CJEU. 52 Judgment of the Constitutional Court, Pl. ÚS 50/04 delivered on March 8 2006, in case Sugar Quotas III; in English available here: https://www.usoud.cz/en/decisions/20060308-pl-us-5004-sugar-quotas-iii-1. 53 See part A-1) of Sugar Quotas Judgement. 54 The CCC refers to the Italian Constitutional Court that refused to be a court under art 237 TFEU. However, this court later changed its position and referred a case to the CJEU, see f.e.: NAVRÁTILOVÁ, Markéta. The preliminary ruling before the constitutional courts, in Vladimír Týč (ed.): International and European Dimension of Law Applied by Institutions of Member States, Masaryk University: Brno, 2008, p. 8, available at: https://www.law.muni.cz/sborniky/dp08/files/3mezinaro.html. For the analysis of the first cases referred by French, Spanish and Italian constitutional courts see f.e. KUSTRA, Aleksandra. The first preliminary questions to the Court of Justice of the European Union referred by Italian Corte Costituzionale, Spanish Tribunal Constitucional, and French Conseil Constitutionnel, Comparative Law Review , no. 16, 2013. 55 Interestingly, the arguments in the case were based on the CILFIT criteria, namely the acte éclairé doctrine. According to the CCC the disputed issue was well clarified in the existing CJEU case-law and, anyway, it would not be necessary to initiate the preliminary ruling procedure. Cf. part A-1) of Sugar Quotas Judgement . 56 As was confirmed also in Sugar Quotas judgment according to which the EU law should not impede the material core the Czech Constitution. The adjudication on this issue is in the competence of the CCC. For a detailed analysis on this see HAMUĽÁK, Ondrej. National Sovereignty in the European Union: View from the Czech Perspective . Cham: Springer International, 2016. 57 Cf. DRINOCZI, Timea, MOHAY, Ágoston. The preliminary ruling procedure and the identity review , in: Dunja Duić and Tunjica Petrašević (eds.): EU and comparative law issues and challenges, issue 1. Osijek: Faculty of Law 2017, p. 207.

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