Constitutional review of member state action: The virtues and vices of an incomplete jurisdiction

Conflict resolution; Constitutional review; Courts; Discretion; Disputes; Europe; European Court of Justice; European law; European Union; International Court; International Law; Judicial behaviour; Judicial power; Judicial Review; Judiciary; Jurisdiction; Law; Member states; Power relations; Subordination

Abstract :

[en] In providing preliminary rulings on the interpretation of EU law, the European Court of Justice carries out essentially review of constitutionality of Member State action. The ECJ enjoys discretion in determining the specificity of its ruling. It may give an answer so specific that it leaves the referring court no margin for maneuver and provides it with a ready-made solution to the dispute (outcome cases); it may, alternatively, provide the referring court with guidelines as to how to resolve the dispute (guidance cases); finally, it may answer the question in such general terms that, in effect, it defers to the national judiciary (deference cases). The degree of specificity is not a random exercise but a conscious judicial choice. The ECJ's discretion in this respect operates as a constitutional valve and illustrates the direct use of judicial power. This article seeks to examine the varying degrees of specificity, the types of case where each is used, the reasons which determine variations, and whether any conclusions can be drawn as to the optimum approach that the Court should take.

Disciplines :

European & international law

Author, co-author :

TRIDIMAS, Takis ; University of Luxembourg > Luxembourg Centre for European Law (LCEL)

External co-authors :

Language :

English

Title :

Constitutional review of member state action: The virtues and vices of an incomplete jurisdiction

Publication date :

2011

Journal title :

International Journal of Constitutional Law

ISSN :

1474-2640

eISSN :

1474-2659

Publisher :

Oxford University Press

Volume :

Issue :

3-4

Pages :

737–756

Peer reviewed :

Peer reviewed

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since 30 January 2025

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This role is reflected in Article 19(1) TEU which replaces in substance the old Article 220 EC and states that the role of the EU judiciary is to "ensure that in the interpretation and application of the Treaties the law is observed."
Direct review takes place through the action for annulment (Article 263 TFEU [Article 230 EC]) and the action for failure to act (Article 265 TFEU [Article 232 EC]). Indirect review takes place through the plea of illegality (Article 277 TFEU [Article 241 EC]) and the preliminary reference procedure Article 267 TFEU [Article 234 EC]). Another form of indirect review may be said to be an action in damages under Article 340(2) TFEU [Article 228(2) EC].
See Articles 258-259 TFEU [Articles 226-227 EC].
Thus, it has become obvious from the inter-judicial dialogue that the ECJ and the national judiciaries disagree on the issue of competenz-competenz. The ECJ takes the view that it has exclusive jurisdiction to determine the validity of EU measures while the overwhelming majority of national courts reserve to themselves the ultimate authority to determine the outer limits of EU competence and the compatibility of EU measures with their national constitutions: see e.g. the judgment of the Danish Supreme Court in Norup Carlsen v the Prime Minister [1999] 3 CMLR 854, and of the German Constitutional Court in the Maastricht Treaty case (Brunner [1994] 1 CMLR 57) and the Lisbon Treaty case, judgment of 30 June 2009. Cf. Case 314/85 Foto-Frost v Hauptzollamt Lübeck-Ost [1987] ECR 4199.
In the period 2001 to 2005, enforcement actions accounted for 17.7% of the case law while preliminary references on issues of interpretation accounted for 25.3%.
See Takis Tridimas & Gabriel Gari, Winners and Losers in Luxembourg: A statistical analysis of Judicial Review before the European Court of Justice and the Court of First Instance: 2001-2005, 35 Eur. L. Rev. 131, 138 (2010).
See, e.g., Case C-67/89 Berkenheide [1990] ECR I-2615, para 16.
See, e.g., Case C-315/92 Verband Sozialer Wettbewerb v Clinique Laboratories and Estée Lauder [1994] ECR I-317; Case C-383/97 Van der Laan, [1999] ECR I-731. For an interesting example of a difference in view between the Court and the Advocate General as to the provisions of EC law applicable in the case, see Case 367/89 Richardt [1991] ECR I-4621.
See, e.g., Case C-83/91 Meilicke [1992] ECR I-4871. Similarly, the Court will refuse to answer where the issues of Community law on which the referring court seeks guidance bear no relation to the actual nature of the case or to the subject-matter of the main action: Case C-343/90 Lourenco Dias [1992] ECR I-4673.
See, e.g., Joined cases 320-322/90 Telemarsicabruzzo SpA v Circostel [1993] ECR I-393.
See, for example, Case C-63/01 Evans v Secretary of State for the Environment, Transport and the Regions and the Motor Insurers' Bureau [2003] ECR I-14447. In that case, the ECJ provided an outcome in relation to whether the national procedure satisfied the requirements of the right to judicial protection, also an outcome in relation to the issue whether an award of compensation should include interest but only basic guidance on whether the failure to cover the costs of proceedings made it excessively difficult to protect Community rights. For another example, see Case C-341/08 Petersen, judgment of 12 January 2010, discussed below.
Note that, to determine to which category a judgment belongs, one needs to have regard not only to the ruling but also to the reasoning of the Court as articulated in the grounds of the judgment.
See, e.g., for a recent case where it was for the national court to establish, subject to the guidelines given by the ECJ, whether the principle of non-discrimination was breached: Case C-453/08 Karanikolas v Ministry of Agriculture, judgment of 2 September 2010.
Joined Cases C-158 & C-159/04 Alfa Bita Vassilopoulos AE v Greek State, [2006] ECR I-8135.
Case C-322/01 Deutscher Apothekerverband eV v DocMorris and Watervel, [2003] ECR I-14887.
Joined Cases C-267/91 and C-268/91 Keck and Mithouard [1993] ECR I-6097.
By way of example, for measures found to be incompatible with Article 28 (now Article 34 TFEU), see Case C-315/92 Verband Sozialer Wettbewerb v Clinique Laboratories SNC [1994] ECR I-317; Case C-470/93 Mars [1995] ECR I-1923; Case C-239/02 Douwe Egberts v Westrom Pharma, [2004] ECR I-7007. For measures found to be compatible, see Keck, supra note 15, Joined Cases C-401 and 402/92 Tankstation T Heukske and Boermans [1994] ECR I-2199; Joined Cases C-418 etc/93 Semeraro Casa Uno v Sindaco del Commune di Erbusco [1996] ECR I-2975. For national measures found compatible with the freedom to provide services, see, e.g. Alpine Investments [1995] ECR I-1141; Case C-134/03 Viacom Outdoor Srl v Giotto Immobilier SARL, [2005] ECR I-1167; Joined Cases C-544/03 & C-545/03 Mobistar SA v Commune de Schaerbeek, [2005] ECR I-7723.
See, e.g., for recent examples, Case C-304/08 Zentrale zur Bekämpfung unlauteren Wettbewerbs eV v Plus Warenhandelsgesellschaft mbH, judgment of 14 January 2010 (Directive 2005/09 on Unfair Commercial Practices; Case C-226/08Stadt Papenburg v Bundesrepublik Deutschland, judgment of 14 January 2010 (Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora).
Case C-255/00 Grundig Italiana SpA v Ministerodelle Finanze [2002] ECR I-8003. See further: Joined Cases C-216/99 and C-222/99 Riccardo Prisco Srl v Amministrazione delle Finanze dello Stato [2002] ECR I-6761; and Case C-62/00Marks & Spencer plc v Commissioners of Customs and Excise [2002] ECR I-6325.
See Arsenal Football Club Plc v. Reed (No.2) [2003] 1 All E.R. 137. The case generated controversy because, following the ruling of the ECJ, Laddie J held that the ECJ had exceeded its jurisdiction by making findings of fact and refused to follow the ruling. His judgment was however reversed on appeal.
See, e.g., Case C-255/02 Halifax v Commissioners of Customs and Excise [2006] ECR I-1609, para 77; Case C-238/05 Asnef-Equifax and Administración del Estado [2006] ECR I-11125, para 40; Case C-79/01 Payroll and Others [2002] ECR I-8923, para 29.
Case C-368/95 Vereinigte Familiapress Zeitungsverlags- und Vertreibs GmbH v Bauer Verlag [1997] ECR I-3689.
Para 30.
Para 31.
Para 34.
See, e.g., Joined cases C-46 and 48/93 Brasserie du Pêcheur v Germany and the Queen v SS for Transport ex parte Factortame [1996] ECR I-1029 where the ECJ explained which conditions of liability applicable under English and German law made excessively difficult the protection of Community rights.
Case C-67/98, Questore di Verona v Diego Zenatti ("Zenatti") [1999] ECR I-7289.
National lotteries legislation is an area where the case law has vacillated but, in general, allowed ample discretion to the Member States.
For a review of cases, see Dimitrious Doukas & Jack Anderson, Commercial Gambling without Frontiers: When the ECJ Throws, the Dice is Loaded, Oxford Y.B. Eur. L. (2008).
Case C-405/98 Gourmet [2001] ECR I-1795, can also be characterized as an amber light case in favour of the national choice. The ECJ held that the Swedish prohibition on advertising of alcohol was a restriction on free movement and found that, in principle, it was justified unless it was apparent that, in the circumstances of law and fact which characterized trade in Sweden there were less restrictive alternatives which was for the national court to decide.
See, e.g., Case C-372/04 Watts [2006] ECR I-4325. In that case, English law required a patient to receive prior authorization in order to be eligible for reimbursement of expenses incurred for receiving medical treatment in another Member State. The ECJ listed a number of conditions for authorization which were not acceptable under Community law and which therefore had to be set aside, and also listed a number of variables to be taken into account by the national authorities and the national court in deciding whether to grant authorization.
Joined Cases C-414 to 416/99 Zino Davidoff v A & G Imports [2001] ECR I-8691.
First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1).
Para. 46.
For a further example of detailed guidance, see Case C-228/03 Gillette v LA-Laboratiroes Ltd Oyi [2005] ECR I-2337 (determination of whether use of a trademark is in accordance with honest practices under Directive 89/104).
Case C-438/05 International Transport Workers Federation & Finnish Seamen s Union v Viking Line ABP [2007] ECR I-10779; see also Case C-341/05 Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet [2007] ECR I-11767. Another example where the ECJ provided detailed guidance to the national court (on the impact of the right of establishment on national corporate tax laws) is Case C-446/03 Marks & Spencer plc v David Halsey (Her Majesty's Inspector of Taxes) [2005] ECR I-10837.
Para. 82.
For other examples, see Case C-12/02 Grilli [2003] ECR I-11585, where the ECJ left the issue whether German rules on motor-vehicles could be justified by public policy and public order and, if so whether they were proportionate entirely to the national court: see para 47 of the judgment. Elements of the deference approach can also be found in Case C-388/07 The Queen on the application of Age Concern England v Secretary of State for Business [2009] ECR I-1569, discussed below.
Case C-302/97 Konle v Republic of Austria [1999] ECR I-3099.
Case C-260/89 ERT [1991] ECR I-2925.
For an example in competition law, see Case C-198/01 Consorzio Industrie Fiammiferi (CIF) v Autorità Garante della Concorrenza e del Mercato [2003] ECR I-8055 (on the issue of whether national legislation may be anti-competitive).
OJ 2000, L 303/16.
Case C-144/04 Mangold v Helm [2005] ECR I-9981.
Case C-555/07 Kükükdeveci v Swedex GmbH, judgment of 19 January 2010.
Case C-88/08 Hütter [2009] ECR I-5325.
Case C-229/08Wolf v Stadt Frankfurt am Main, judgment of 12 January 2010.
Case C-341/08 Petersen v Berufungsausschuss für Zahnärzte für den Bezirk Westfalen-Lippe, judgment of 12 January 2010.
This was also the case in Palacios de la Villa, discussed below, where the ECJ gave the green light to Spanish legislation on the ground that it pursued sound social objectives even though these objectives were not articulated in the law itself.
Case C-411/05 Palacios de la Villa [2007] ECR I-8531.
Case C-388/07 The Queen on the application of Age Concern England v Secretary of State for Business [2009] ECR I-1569.
See, e.g., Davidoff, supra note 31; Case C-255/02 Halifax v Commissioners of Customs and Excise [2006] ECR I-1609 (where the issue of whether deduction of VAT as provided by the 6th Directive was an abuse of right was a matter for the national court to decide on the facts); Case C-228/03 Gillette v LALaboratiroes Ltd Oyi [2005] ECR I-2337 (determination of whether use of a trademark is in accordance with honest practices under Directive 89/104).
See, e.g., C-302/97 Konle v Republic of Austria [1999] ECR I-3099, where the question whether the breach of Community law was serious so as to trigger State liability in damages could only be determined on the basis of the interpretation of Austrian law. Similarly, in Case C-173/03 Traghetti del Mediterraneo SpA v Italy [2006] ECR I-5177, the question whether Italian law was in breach of the ECJ case law on state liability dependent on its interpretation which was only for the Italian courts to ascertain.
Case C-63/01 Evans v Secretary of State for the Environment, Transport and the Regions and the Motor Insurers' Bureau [2003] ECR I-14447.
Compare, e.g., Joined Cases C-69 and 258/93 Punto Casa [1994] ECR I-2355 and Joined Cases C-401 and 402/92 Tankstation T Heukske and Boermans [1994] ECR I-2199, with cases such Case C-67/97 Ditlev Bluhme [1998] ECR I-8033, Case C-254/98 Schutzverband gegen unlauteren Wettbewerb v TK-Heimdienst Sass GmbH [2000] ECR I-151 and, more recently, Case C-142/05 Aklagaren v Mickelsson and Roos [2009] ECR I-4273; and on advertising compare Case C-412/93 Leclerc- Siplec [1995] ECR I-179 and Joined Cases C-34 to C-36/95 KO v De Agostini and TV Shop [1997] ECR I-3843 with Case C-405/98 KO v Gourmet International Products AB (GIP) [2001] ECR I-1795 and Case C-322/01 Deutscher Apothekerverband eV v DocMorris and Watervel [2003] ECR-I 14887.
See, e.g., Case C-48/05 Adam Opel AG v Autec AG [2007] ECR I-1017, para. 25.
See below.
A prime example here is provided by Case C-348/04 Boehringer Ingelheim KG v Swingward Ltd [2007] ECR I-3391. See also the cases concerning the defence of "passing on": Case 199/82 Amministrazione delle Finanze dello Stato v San Giorgio [1983] ECR 3595; Joined cases C-192 to C-218/95 Comateb and Others v Directeur Général des Douanes et Droits Indirects [1997] ECR I-165; cf. Case C-147/01 Weber's Wine World and others [2003] ECR I-11365.
Directive 93/13, OJ 1993 L 95/29.
In relation to the Unfair Terms Directive, the ECJ has defined the meaning of unfair terms but has held that it cannot rule on the application of general criteria to a particular term: see e.g. C-237/02 Freburger Kommunalbauten [2004] ECR I-3403, para. 19, paras. 20-22; Case C-243/08 Pannon GSM Zrt v Erzsébet Sustikné Györfi [2009] ECR I-4713, para. 22. It has however been assertive in specifying the duties of the national courts in applying the directive and drawing the legal consequences of including an unfair term in a contract: see e.g. Case C-168/05 Mostaza Claro [2006] ECR I-10421; Case C-473/00 Cofidis [2002] ECR I-10875; Joined cases C-240 to C-244/98 Océano Grupo Editorial and Salvat Editores [2000] ECR I-4941. In other areas, see by way of example, Case C-489/07 Messner v Firma Stefan Krüger [2009] ECR I-7315, where the ECJ provided guidance on the interpretation of Directive 97/7/EC on the protection of consumers in respect of distance contracts (OJ 1997 L 144/19) but left ample flexibility to the national court.
Case C-453/99 Courage Ltd v Bernard Crehan [2001] ECR I-06297 (the Court held that Article 81 EC (now 101 TFEU) precludes a rule of national law under which a party to an anti-competitive contract is barred from claiming damages on the sole ground that the claimant is a party to it. The judgment set aside a traditional common law rule under which the party to an unlawful contract cannot claim damages under it but left to the national court the articulation of the consequences of the ruling); see also C-253/00 Munoz Cia SA and Superior Fruitcola v Fumar Ltd and Redbridge Produce Marketing Ltd [2002] ECR I-7289; Joined Cases C-295/04 to C-298/04 Manfredi [2006] ECR I-6619.
Cases C-267/91 and C-268/91 Keck and Mithouard [1993] ECR I-6097.
Case C-224/01 Köbler v Austria [2003] ECR I-10239.
Case C-260/89 ERT [1991] ECR I-2925.
See Case C-112/00 Schmidberger, Internationale Transporte und Planzüge [2003] ECR I-5659; Case C-60/00 Carpenter v. Secretary of State for the Home Department [2002] ECR I-6279; Case C-36/02 Omega Spielhallen- und Automatenaufstellungs v Oberbürgermeisterin der Bundesstadt Bonn [2004] ECR I-9609. See further Case C-71/02 Herbert Karner Industrie-Auktionen GmbH v. Troostwijk GmbH [2004] ECR I-3025 and Joined Cases C-20 and C-64/00 Booker Aquaculture Ltd & Hydro Seafood GSP Ltd v Scottish Minister [2003] ECR I-7411 where the ECJ also provided outcomes in relation to the application of fundamental rights.
For a subsequent case where the ECJ provided guidance on liability for judicial acts, see Case C-173/03 Traghetti del Mediterraneo SpA v Italy [2006] ECR I-5177.
[5] U.S. 137.
This is a paraphrase from Robert McCloskey, The American Supreme Court 42 (1960).
See, e.g., the following line of cases: C-91/92 Faccini Dori v Recreb [1994] ECR I-3325; Case C-129/94 Bernáldez [1996] ECR I-1829; Case C-441/93 Pafitis [1996] ECR I-1347; Case C-373/97 Diamantis [2000] ECR I-1705; Case C-194/94 CIA Security International v Signalson SA [1996] ECR I-2201; Case C-443/98 Unilever Italia SpA v Central Food SpA [2000] ECR I-7535; Case C-159/00 Sapod Audic v Eco-Emballages SA [2002] ECR I-5031; Case C-397/01 Pfeiffer and others [2004] ECR I-8835; Case C-144/04 Werner Mangold v Rüdiger Helm [2005] ECR I-9981.
Case 33/76 Rewe v Landwirtschaftskammer für das Saarland [1976] ECR 1989; Case 45/76 Comet v Productschap voor Siergewassen [1976] ECR 2043.
Case C-280/00 Altmark Trans GmbH v Nahverkehrsgesellschaft Altmark GmbH [2003] ECR I-7747.
For a case where the guidelines provided by the ECJ gave rise to uncertainty and needed to be interpreted by the UK Supreme Court, see OB v Aventis Pasteur [2010] UKSC 23.
Case C-349/95 Loendersloot [1997] ECR I-6227, at 6239.
See Case C-348/04 Boehringer Ingelheim KG v Swingward Ltd (Boehringer II) [2007] ECR I-3391, Opinion of Sharpston AG, para 3. In that case, the Court of Appeal made a reference seeking detailed guidance on the application of the conditions for lawful repackaging laid down in Joined Cases C-427/93, C-429/93 and C-436/93 Bristol-Myers Squibb [1996] ECR I-3457, having made a number of findings which differed from those of the High Court in the same litigation. The High Court had already received guidance by the ECJ in Case C-143/00 Boehringer Ingelheim and Others [2002] ECR I-3759 (Boehringer I). In her Opinion, at para 3, Sharpston AG stated as follows: "It seems to me that after 30 years of case-law on the repackaging of pharmaceutical products it should be possible to distil sufficient principles to enable national courts to apply the law to the constantly replayed litigation between manufacturers and parallel importers. I will attempt to articulate such principles in this Opinion. I would then hope that national courts will play their part robustly in applying the principles to the facts before them without further requests to fine-tune the principles. Every judge knows that ingenious lawyers can always find a reason why a given proposition does or does not apply to their client's situation. It should not however in my view be for the Court of Justice to adjudicate on such detail for evermore.".
Cohens v Virginia 19 U.S. (6 Wheat.) 264, 404 (1821).
Case C-348/04 Boehringer Ingelheim KG v Swingward Ltd (Boehringer II) [2007] ECR I-3391.