In its Judgment (Grand Chamber) of 15 January 2013 in case C-416/10 Križanand Others, the Court of Justice of the EU (CJEU) has reiterated its constant case law whereby internal constitutional rules cannot trump or diminish its role as the only authentic interpreter of EU Law (art 267 TFEU).
The protection that CJEU has built around its ultimate jurisdiction concerning EU Law interpretation has been strengthened in several decisions adopted since 2010 and, in my view, the wording of the Križanand Judgment is definitive:
68 A rule of national law, pursuant to which legal rulings
of a higher court bind another national court, cannot take away from the latter
court the discretion to refer to the Court of Justice questions of
interpretation of the points of European Union law concerned by such legal
rulings. That court must be free, if it considers that a higher court’s legal
ruling could lead it to deliver a judgment contrary to European Union law, to
refer to the Court of Justice questions which concern it (Case C‑378/08 ERG and Others [2010] ECR I‑1919, paragraph 32; and [Case C-173/09 Elchinov [2010] ECR I‑8889], paragraph 27).
69 At this stage, it must be noted that the national court,
having exercised the discretion conferred on it by Article 267 TFEU, is bound,
for the purposes of the decision to be given in the main proceedings, by the
interpretation of the provisions at issue given by the Court of Justice and
must, if necessary, disregard the rulings of the higher court if it considers,
in the light of that interpretation, that they are not consistent with European
Union law (Elchinov, paragraph 30).
70 The principles set out in the previous paragraphs apply
in the same way to the referring court with regard to the legal position
expressed, in the present case in the main proceedings, by the constitutional
court of the Member State concerned in so far as it follows from
well-established case-law that rules of national law, even of a constitutional
order, cannot be allowed to undermine the unity and effectiveness of European
Union law (Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125,
paragraph 3, and Case C-409/06 Winner Wetten [2010] ECR I-8015, paragraph 61).
Moreover, the Court of Justice has already established that those principles
apply to relations between a constitutional court and all other national courts
(Joined Cases C-188/10 and C-189/10 Melki and Abdeli [2010] ECR I‑5667, paragraphs 41 to 45). [...]
72 Finally, as a supreme court, the Najvyšší súd Slovenskej
republiky [Slovak Supreme Court] 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. (C-416/10 paras 68 to 72, emphasis added).
In my view, paragraph 72 of the Križanand Judgment broadens the scope of the obligations of national Supreme Courts and imposes a counterintuitive (and somehow extensive) interpretation of the concept of domestic court "against whose decisions there is no judicial remedy under national law" (interpreting "remedy" as "full review", I would say). A straightforward reading of the Križanand Judgment seems to imply that all Supreme Courts and all Constitutional Courts of the Member States (where both of them exist) are bound to submit preliminary references under Article 267 TFEU, regardless of the system of checks and balances between both institutions established under the relevant national constitution.
This seems a logic consequence of the supremacy of EU Law and the central position of the CJEU in its interpretation. However, it may generate an even larger number of preliminary references to CJEU--which volume is already generating significant management difficulties. As I already indicated, the preliminary reference system is under significant pressure and risks hypertrophy.
In my view, this implies that we need to allow all domestic courts, including the highest courts of the Member States against whose decisions there is no judicial remedy under national law to "ask responsibly". Otherwise, we face a significant risk of hypertrophy of the preliminary ruling instrument. Therefore, in my opinion, the boundless wording of the Križanand Judgment scenifies the CJEU putting a noose around its own neck.
