CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ CONSTITUTIONAL REVIEW AND THE PRELIMINARY RULING PROCEDURE … One could object that in case of uncertainty about the correct interpretation the CCC could instruct ordinary courts deciding the case concerned to refer the questions to the CJEU and get the correct interpretation as a basis for their subsequent decision as well as the CCC itself. In other words as the CCC refused its competence to refer questions to the CJEU, it could “force” courts of last instance to initiate this procedure “instead” of its own referral. However, such an approach could evoke also negative consequences. The exclusivity of referral by ordinary courts would be a longer way disrespecting the requirement for quick and efficient procedure as the CCC could do it directly. It would also seem rather clumsy if the CCC would get a case and, just because of uncertainty in interpretation of a substantial question of the EU rules, it would annul the decision with the message for the court of last instance (supreme court) to refer a case to the CJEU on the correct interpretation. Eventually it might happen that the court of last instance would not decide fully in line with the CCC’s instructions or would ask questions which would not fit the CCC’s needs. The question is how these considerations are applicable for the breach of the Czech Charter by the failure to initiate the preliminary ruling procedure by supreme courts. Such a referral to the CJEU would be logic if the core of the constitutional complaint would concern the constitutionality of the 267 TFEU procedure or the interpretative conditions set up by the CJEU. In this dispute the CCC should be bound by the above considerations and before the decision on constitutionality it would be advisable to refer a question to the CJEU. A more complicated and principally different question is whether it itself should search for the correct interpretation of substantive EU law which would otherwise be given by the CJEU if the ordinary court would initiate the procedure. In this regard we might accept the argument that the CCC would refuse the referral as the constitutional complaint itself is about the breach of procedural rights and not the substantive rights which should be the core of the preliminary ruling procedure. This conclusion is also acceptable based on the argument that the CCC is not “another instance” to enforce the EU law. 58 Even more complex questions concern the EU law which was implemented into national law. The Czech theory as well as practice confirmed that the Czech law implementing EU law will undergo constitutionality control in very limited circumstances. 59 In this situation we think that the CCC could initiate a preliminary ruling procedure so as to ascertain about the proper interpretation of the EU law. Again, it was not part of the dispute in the case in CCB . Consequently, in the above-outlined context the conclusion of the CCC not to initiate the preliminary ruling procedure in the context of acte clair doctrine can be accepted and in practice we expect that the impact will be rather limited. 58 A different situation would be if the EU law would be comprehended as a part of the Czech constitutional order and the CCC would be called to protect it. This might be important especially in relation to the EU Charter of Fundamental Rights as the parties could complain about the clash of Czech (ordinary) law and the EU Charter (as part of the Czech Constitutional order). However, this is not the case. 59 Such as the evaluation of discretion in the choice of the form of implementation or the impact on the material core of the Czech Constitution as outlined in Sugar Quotas . For more see KRÁL, R.: Uznání i rozpaky nad “komunitárním” nálezem Ústavního soudu ve věci cukerných kvót, in David Kosař, Filip Křepelka, Ladislav Vyhnánek: Kompendium Evropského ústavního práva , MU Brno: MUNI Press, Brno 2017, p. 61-62, further see KÜHN, Z., K přezkumu ústavnosti českých aktů implementujících evropské právo nejen ve vztahu k tzv. eurozatykači, Trestněprávní revue , no. 3, 2005, p. 97-62. ZEMÁNEK, J.: Evropskoprávní meze přezkumu ústavnosti transpozice rámcového rozhodnutí o euro-zatykači. Právní rozhledy , 2006, no. 3, p. 90-95.

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