CYIL vol. 10 (2019)

VÁCLAV STEHLÍK CYIL 10 ȍ2019Ȏ references to the CJEU. The courts of last instance would keep initiating this procedure when they would find it necessary for their decision of the case. A different practice would equal to the breach of conditions formulated in the case-law of the CJEU in relation to the art. 267 TFEU. Second, one of the reasons for Pfizer -like decisions and constitutional-based liability was the absence of proper justification in previous case-law of the supreme courts. In this regard the CCB decision which lowers the CILFIT criteria in the context of Czech constitutional law could lead to the deterioration of the current practice of these courts. Still – as was indicated above – it may be expected that the number of constitutional complaints to the CCC for the breach of the Czech Charter ( Pfizer -like decision) does not have to be much limited as the parties will try to test individual conditions of admissibility as formulated in the CCB decision. This does not have to be true in the long term perspective. In case of continuous restrictive approach of the CCC the impact could cause a substantial reduction of admissible as well as successful complaints to the CCC. Third, the more complicated way to get to the CCC could compromise the rights of parties. The means currently available are not much effective to afford them the protection. The Köbler -based liability for the damage caused by national courts and their non-referrals is difficult to enforce in practice and, even though it would be more actively used, it still means to initiate a new procedure for individuals to go through, including, e.g. appellate courts. Similarly, the infringement procedure suggested by the CCC does seem to be a solution as it does not afford any formal status to individuals and is not designed to solve the claims of parties. From this perspective the constitutional complaint is a unique, straightforward and comparatively efficient tool for private parties. Fourth, the apriori refusal of the preliminary ruling procedure in the constitutional complaints initiated by individuals may result in the disapplication of the EU law and a conflict with the CJEU in cases which might be solved via the 267 TFEU procedure. This would be true especially if the CCB conclusions would spread behind the application of CILFIT . Although the direct conflict between national constitutional courts and CJEU is very exceptional, it cannot be fully excluded as the tensions between national and EU level might be increasing. However, we could imagine that – despite its conclusions in CCB – in such a situation the CCC would accept the individual complaint as admissible and – due to a specific circumstance of the case – could even initiate the procedure. The change of attitude of constitutional courts in this regard has already happened – we may refer to the developments with the Italian Constitutional Court and its originally reserved approach to its own initiation of the 267 TFEU procedure. Fifth, the CCC applied the general assumptions on the current case and concluded that the Czech Charter was not breached and the applicant lost the case. However, the broader actual effects of the decision will be seen in a long-term perspective. It must be respected that the CCC has the competence to restrict its status in relation to the 267 TFEU procedure as well as its supervision on the use of preliminary ruling procedure by ordinary courts. The enhanced constitutional guarantees of 267 TFEU procedure are not obligatory or required by the EU law and do not have to be introduced by all EU Member States. Similarly the extent of their application may differ. Yet, the effects on the rights of individuals are apparent

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