B.

National courts
Reinforcing the (domestic) constitutional protection of primacy of EUlaw
Tribunal Constitucional (Spanish constitutional court), Judgment 145/2012
of 2 July 2012, Iberdrola v. Comision Nacional de la Energia
1. Introduction
On 2 July 2012 the Spanish Constitutional Court delivered a landmark
decision concerning the relationship between EU law remedies before
national courts and the recurso de amparo (constitutional appeal for the
protection of fundamental rights). Judgment 145/2012
1
is relevant on many
counts, but mostly because it confirms the Spanish Constitutional Courts
willingness to supervise the correct application of EU law by Spanish
ordinary courts. The judgment thus goes beyond the traditional debate on the
constitutional protection of the obligation to make preliminary references to
the European Court of Justice, and shifts the focus towards a more substantive
dimension: the terms in which Spanish ordinary courts apply substantive EU
law, as previously interpreted by the ECJ, and the remedies guaranteed by the
Constitution in case of (national) judicial error.
Traditionally the Spanish Constitutional Court has been a reluctant player
in EU law. However, the Court has come a long way from its very first
statements in 1989, when it declared the infra-constitutional status of EU
law, to its current and exemplary attitude towards European integration. This
European turn began in 2004 when the Court rendered its Declaracin
(opinion) on the compatibility of the Constitutional Treaty with the Spanish
Constitution. In 2011 the Court sent its first preliminary reference to the
European Court of Justice, only a few months after having recognized the
constitutional relevance of the obligation to refer preliminary references to
Luxembourg. In 2012, in judgment 145/2012, the Court has come full-circle
in its pro-active stance regarding EU law, an event that merits some attention
and, as will be argued, a positive appraisal.
1. Judgment of the First Chamber of the Constitutional Court (Official State Gazette No.
181 of 30 July 2012). This judgment and all other judgments of the Spanish Constitutional
Court referenced in this case note are available in Spanish on the Courts web page at
<www.tribunalconstitucional.es>.
Common Market Law Review 50: 875892, 2013.
2013 Kluwer Law International. Printed in the United Kingdom.
2. Background and content of judgment 145/2012
2.1. The background
In 2005, Gas Natural, a major company in Spains energy sector, launched a
takeover bid over Endesa, also a leading Spanish energy group. In the midst of
a loud political debate (Gas Natural is incorporated in Barcelona and the IPO
was launched at the time a new Estatuto de Autonomia, the regions
Constitution under Spanish law, was being discussed in the Catalan
Parliament) and in light of Gas Naturals low offer to Endesas shareholders,
the German energy company EON came onto the scene improving Gas
Naturals bid. The risk that EONs offer would succeed pushed the
government of the time (who had tacitly supported Gas Naturals move) to
pass a partial reform of the Hydrocarbon Sector Act, granting the Spanish
energy regulator special powers to authorize or refuse any acquisition over
10% of the shares of any corporation operating in the Spanish energy sector.
2
The new rules, popularly known as funcin-14, allowed the regulator to
reject an acquisition on very ambiguous grounds, such as the negative
effects on the activities of the corporation linked to the energy sector, or the
protection of the general interest.
The European Commission took Spain to the ECJ claiming the breach of
Articles 49 and 63TFEU. In a judgment delivered on 17 July 2008,
3
and ruling
without an Opinion of the Advocate General, the ECJ, in very direct terms,
declared that Spain had failed to fulfil its obligations under both Treaty
provisions.
4
The judgment found that the Spanish authorization procedure
was clearly aimed at restricting direct investment in Spanish corporations in
the energy market.
5
Also, and in light of previous case law,
6
the ECJ denied
that the measure would guarantee the protection of national security or the
provision of energy services in Spain, and thus declared the rules incompatible
with EU law.
7
2. The measure was enacted by way of Royal Decree-Law 4/2006 of 24 Feb. 2006 (Real
Decreto-Ley 4/2006), adding Supplementary Provision No. 11, part 3, point 1 to Law 34/1998
of 7 Oct. 1998 on the hydrocarbon sector (Ley 3471998, del sector de hidrocarburos).
3. Case C-207/07, Commission v. Spain, [2008] ECR I-111* summary publication.
4. For an overall anaylsis of the ECJs decision and its impact in the Spanish eneregy
legislation, see Redondo Trigo, La toma de participacin en empresas espaolas energticas a
la luz de la reciente jurisprudencia del Tribunal de Justicia de las Comunidades Europeas, 712
Revista critica de Derecho Inmobiliario (2009), 959971.
5. Commission v. Spain, cited supra note 3, para 39.
6. In particular, Case C-483/99 Commission v. France [1999] ECR I-4781, at para 47, and
Case C-274/06, Commission v. Spain, [2008] ECR I-26, at para 38.
7. Commission v. Spain, cited supra note 3, paras. 49 to 57.
CML Rev. 2013 876 Case law
In 2007, Iberdrola, one of Spains leading energy groups, acquired 20% of
the shares of Medgaz, a joint Spanish, French and Algerian company
incorporated under Spanish law, entrusted with the construction and future
exploitation of the deepwater gas pipeline fromAlgeria to Europe via Spain.
Iberdrola notified the acquisition to the Spanish energy regulator, but did not
request authorization under the funcin-14 rules. After the regulators
repeated requests to Iberdrola, reminding it of the legal obligation to ask for
prior authorization of the acquisition of the shares, Iberdrola claimed that the
authorization procedure was contrary to EU law and refused to comply with
the regulators requests. Consequently, the Spanish energy regulator imposed
on Iberdrola a penalty of 60,101 euros for breach of the conditions established
under the funcin-14 rules. After an unsuccessful but mandatory
administrative appeal before the Spanish energy regulator, Iberdrola appealed
the decision before the Tribunal Superior de Justicia of Madrid.
2.2. The fudgment of the Tribunal Superior de Justicia of Madrid
The Tribunal Superior de Justicia of Madrid delivered its decision on 22April
2010, two years after the ECJ had declared that the funcin-14 rules were in
violation of the Treaties. However, and ruling as a court of first and last
instance (the amount of the penalty precluded access to the Supreme Court)
the Tribunal rejected Iberdrolas claim to set aside the relevant statutory
provisions as a result of the ECJs decision of 2008.
8
According to the
Tribunal, the said judgment of the ECJ was rendered after the attacked
administrative penalty had been enacted and, therefore, the judgment [of the
ECJ] could not have been taken into account by the Spanish energy
regulator.
9
Also, in the Tribunals opinion, the ECJs judgment has not
annulled any rule of the Spanish legal order, it has simply declared Spains
failure to fulfil its obligations regarding the free movement of capital.
10
The
ECJs decision was thus only mandatory for Spain from the moment it was
rendered (but not with retroactive effects). Based on these arguments,
Iberdrolas plea alleging a breach of EU law was dismissed by the Tribunal.
2.3. The fudgment of the Spanish Constitutional Court
Iberdrola filed an appeal for breach of fundamental rights (recurso de amparo)
before the Spanish Constitutional Court (hereinafter SCC), a special appeal
filed against judicial decisions of last instance on the grounds of a breach of a
8. Judgment of the Sixth Chamber, No 10490/2010.
9. Ibid., at point 6.
10. Ibid.
Tribunal Constitucional 877
fundamental right. After the 2007 reform of the SCCs statute, these appeals
are only accepted by the Court when the issues at stake have a special
constitutional significance.
11
The SCC declared this was the case and
decided to rule on the appeal.
In a unanimous judgment, the first chamber of the SCC granted the appeal
and declared that the Tribunal Superior de Justicia had breached both the
plaintiffs fundamental right to an effective judicial protection (Art. 24 of the
Spanish Constitution) and to legality in criminal proceedings (Art. 25 of the
Spanish Constitution). The arguments of the SCC run as follows.
First, the SCC recalled its previous case law on the status of EU law in the
Spanish legal order, highlighting the distinction between supremacy and
primacy as developed in Opinion 1/2004.
12
In that decision, the SCC stated
that supremacv, as the relevant description of the normative power of the
Spanish Constitution, is sustained in the higher hierarchical character of a
regulation and, therefore, is a source of validity of the lower regulations,
leading to the consequent invalidity of the latter if they contravene the
provisions set forth imperatively in the former. On the contrary, EU law
benefits from primacv, a category not based on hierarchy, but rather on the
distinction between the scopes of application of different regulations,
principally valid, of which, however, one or more of themhave the capacity for
displacing others by virtue of their preferential or prevalent application.
Therefore, and in light of the SCCs previous and well-established case law,
the Spanish Constitution recognizes the obligation of all authorities to, in
principle, set aside all domestic rules and decisions incompatible with EU
law.
13
Second, the SCCpoints at the case lawof the ECJ on the temporal effects of
its judgments in general, and in infringement procedures in particular. The
SCC underlines that the interpretative effects of a judgment from the
Luxembourg Court do not exist from the date when the judgment was
delivered, but from the moment the interpreted provision entered into force.
14
Relying on the ECJs decision in Waterkevn and subsequent case law
(including a reference to A.G. Maduros Opinion in Transportes Urbanos),
the SCC emphasizes that the powerful and pseudo-retroactive effects of the
ECJs judgments have been tacitly confirmed by the Treaties in Article 264
TFEU, that allow the ECJ to limit the temporal effects of its judgments.
15
11. See Art. 50(1)(b) of the Organic Law on the Constitutional Court.
12. Declaracion 1/2004 of the Full Court of 13 Dec. 2004 (Official State Gazette No. 3 of
4 Jan. 2005). English version available at <www.tribunalconstitucional.es.>.
13. Judgment, at point 5.3.
14. Ibid., at point 5.4.
15. Ibid, at point 5.5, quoting the ECJs judgments in Joined Cases 314316/81 & 83/82,
Waterkevn, [1982] ECR 4337 and Case 48/71, Commission v. Italv, [1972] ECR 527, at para 7,
CML Rev. 2013 878 Case law
Third, the SCCportrays the ECJs case lawon the practical consequences of
the primacy of EU law. Quoting the relevant decision of the ECJ on the
matter,
16
the judgment states that all Spanish courts and tribunals are under an
obligation to set aside any rule or decision contrary to EU law, whatever its
rank or scope of application under Spanish law.
17
Furthermore, the SCC
quotes the ECJs judgments in Costan:o and CIF
18
and recalls that the said
obligation falls also on all public administrations, including, adds the SCC,
independent regulatory authorities.
19
In light of the above, the SCC comes to the conclusion that the Tribunal
Superior de Justicia of Madrid committed a manifest breach of EU law.
According to the SCC, by refusing to recognize the full effects of the ECJs
judgment of 17 July 2008, the Tribunal violated the referred and
well-established case law of the Court of Justice. At this point, the SCC states
that the Tribunal made an unreasonable and arbitrary choice of applicable
law, a conduct that, according to well-established case lawof the SCC, entails
a breach of the fundamental right to an effective judicial protection enshrined
in Article 24 of the Spanish Constitution.
20
Furthermore, since the attacked
decision before the Tribunal concerned the imposition of an administrative
penalty, the SCC adds another breach of the Constitution, that of the principle
of legality in criminal proceedings.
21
This second consideration allows the
SCC to declare the nullity of both the judgment of the Tribunal and of the
administrative act enacted by the Spanish energy regulator, thus avoiding the
referral of the proceedings back to the Tribunal for a second (and
time-consuming) decision on the matter.
3. Comment
Under this apparently straightforward decision, the SCChas confirmed a shift
in its approach to EU law, a shift that puts the SCC in the vanguard of
Constitutional Courts as regards the always sensitive relations between EU
as well as the Opinion of A.G. Maduro in Case C-118/08, Transportes Urbanos v Servicios
Generales SAL v. Administracion del Estado, [2010] ECR I-635, at para 34.
16. Case 11/70, Internationale Handelsgesellschaft, [1970] ECR-1125, at para 3; Case
106/77, Simmenthal, [1978] ECR-629, at para 24; Case C-213/07, Michaniki, [ECR] I-9999, at
paras. 5 and 51; Joined cases C-188 &189/10, Melki andAbdeli, [2010] ECRI-5667, at para 43,
and C-173/09, Elchinov, [2010] ECR I-8889, at para 31.
17. Judgment, at point 5.6.
18. Case 103/88, Costan:o, [1989] ECR-1839, at paras. 3033, and Case C-198/01, CIF,
[2003] ECR I-8055, at para 50.
19. Judgment, at point 5.6.
20. Ibid, at point 6.3.
21. Ibid, at point 7.
Tribunal Constitucional 879
and national constitutional law. To my knowledge, this is the first time a
national constitutional court grants constitutional relevance to the terms under
which national courts implement the principle of primacy of EU law.
22
This
matter has been traditionally left in the hands of the ordinary courts, restricting
all constitutional scrutiny on the judiciarys application of EU law to very
specific grounds, mainly the duty to make a preliminary reference to the ECJ.
For this but also for other reasons, the judgment deserves very close attention.
3.1. Judgment 145/2012 in context. The evolving case law of the SCC on
EU law
Judgment 145/2012 is the most recent contribution to an interesting evolution
in the SCCs case law on European integration. It is well known that shortly
after the accession of Spain to the then European Communities, the SCC took
a consciously distant approach towards EEC law in both theoretical and
practical terms. In the eyes of the SCC, the law of the European Communities
was nothing more than infra-constitutional law, a sui generis derivative of
international law which drew its special (but in no way extraordinary) status
from Article 93 of the Spanish Constitution, a provision that authorizes
Parliament to transfer sovereign powers to supranational organizations.
23
In
this early stage, the SCC was eager to point out that Article 93 of the Spanish
Constitution was simply an organic-procedural rule, stating the conditions
under which the Kingdom of Spain was to authorize participation in an
organization of the kind.
24
The practical outcome of it all was that EEC law
was not a relevant parameter of validity for the SCC. And since the SCC can
22. However, see the case of the French Tribunal des conflits, a special jurisdiction
entrusted with the allocation of powers between ordinary and administrative jurisdictions in
France. In a landmark judgment of 17 Oct. 2011, and invoking the principle of primacy of EU
law, the Tribunal empowered ordinary courts (le fuge fudiciaire) to scrutinize the legality of
administrative acts alleged to be incompatible with EU law. The Tribunal des conflits is not a
constitutional jurisdiction, but its special powers and the scope of its jurisdiction puts it in a
similar position. See the comment by Ritleng, Le fuge franais se veut bon eleve de lUnion
Larrt SCEA du Cheneau du Tribunal des conflits du 17 octobre 2011, 48 RTDE (2012),
135150.
23. The expression infraconstitutional, although frequently applied in the SCCs case
law, was first applied to EEC law in Judgment 64/1991, at point 4.(a), but the idea was tacitly
present in the SCCs case law shortly before, in Judgment 28/1991, at. point 4.4.
24. According to Art. 93 of the Spanish Constitution, by means of an organic law,
authorization may be granted for concluding treaties by which powers derived from the
Constitution shall be vested in an international organization or institution. The SCC stated in
Judgment 28/1991, at. point 4.4, that the said provision is the basis of [Spanish participation in
European integration], for the acceptance of EUlaw by way of the Treaty of Accession is an
expression of State sovereignty. It should not be ignored, however, that the said constitutional
provision [Art. 93], of an organic procedural character, limits itself to establish the conditions of
CML Rev. 2013 880 Case law
only rule on the interpretation of the Spanish Constitution, the role of EEClaw
was to be left solely in the hands of the ordinary courts.
As a result of this first approach, the SCC systematically refused to
scrutinize the constitutionality of any act (statutes, judgments or
administrative acts) contrary to EU law.
25
Paradoxically, the SCC remained
silent as to the scrutiny of EUlawin light of the Spanish Constitution, a silence
that proved the SCCs tacit willingness to undergo such a scrutiny, but also its
awareness of the tectonic shifts that such an action would eventually entail.
The German Constitutional Court had not yet delivered its Maastricht
decision, and the idea of constitutional control of EU law was still, in the
minds of many, an impure thought not be said out loud.
It all began to change in 2004. The first signs of adjustment arrived from
Opinion 1/2004 on the constitutionality of the Treaty establishing a
Constitution for Europe. The SCC proclaimed for the very first time the
distinction between supremacy and primacy, previously mentioned (a duality
whose task was to make acceptable in the eyes of the SCC the power of
ordinary courts to set aside statutes contrary to EU law),
26
but it also marked
a shift from previous case law on two counts: first, the SCC stated that Article
93 of the Spanish Constitution was not only an organic-procedural rule, but
also a material rule, source of rights and obligations of constitutional
relevance for the Kingdom of Spain.
27
Also, the SCC spoke for the very first
time of the constitutional limits of European integration under saidArticle 93,
but in such an exceptional tone that it practically allowed further integration
with an extraordinarily wide scope of constitutionally permissible action.
28
celebration of a specific type of international treaty, as a result of which only the said Treaties
may be scrutinized in light of Art. 93 of the Spanish Constitution.
25. For an overall view of the SCCs early case law on EU law, see Alonso Garca, El fue:
espaol como fue: comunitario, (Tirant lo Blanch, 2003), pp. 120 et seq.
26. Opinion 1/04, at point 4.3.
27. Opinion 1/04, at point 2.7: Art. 93 CE is undoubtedly a basic constitutional support for
the integration of other legislations into our own, through the transfer of the exercise of
competences resulting from the Constitution, legislations that are required to coexist with
internal legislation and legislations that are of a regional origin. Metaphorically, it could be said
that Art. 93 CEoperates as a door through which the Constitution itself allows the entry of other
legislations into our constitutional system through the transfer of the exercise of competences.
Consequently, Art. 93 CE is given a substantive or material dimension which must not be
ignored.
28. Opinion 1/04, at point 2.10: transfer of the exercise of competences to the European
Union . . . imposes unavoidable limits to the sovereign faculties of the State, acceptable only
when European legislation is compatible with the fundamental principles of the social and
democratic State of Law established by the national Constitution. Consequently, the
constitutional transfer enabled by Art. 93 CE is subject to material limits imposed on the
transfer itself. Said material limits, not expressly included in the constitutional precept, but
which implicitly result from the Constitution and from the essential meaning of the precept
Tribunal Constitucional 881
Opinion 1/2004 was the first sign from the SCC recognizing quite
outspokenly that EU law had transformed into something well beyond
infra-constitutional law.
29
The second sign of adjustment was judgment 58/2004. For the first time, the
SCC confirmed its willingness to scrutinize the application of EU law by
ordinary courts. In a ground-breaking judgment departing from previous case
law,
30
the SCCstated that an ordinary court of last instance, when setting aside
a parliamentary statute contrary to EU law, is under the obligation to make a
preliminary reference in the conditions set by Article 267(3) TFEU and the
ECJs case law.
31
Simply put, the SCC gave constitutional relevance to the
obligation to make a reference and to the exceptions developed by the ECJs
judgments in Da Costa and Cilfit, albeit limited to situations where the
interpretation of EU law will lead to the setting aside of a parliamentary
statute. Since the power to set aside statues is one that the Spanish Constitution
reserves exclusively to the SCC, the SCC is willing to accept such an
exception only if the ordinary courts play by the rules of the game. In other
words: sending references to the ECJ, but onlv under the conditions set bv
Article 267(3) TFEU, as interpreted bv the ECJ,
32
and thus transforming an
obligation of EUlawalso into a duty to refer under Spanish constitutional law.
This line of case law was confirmed, in a full court, in judgment 78/2010.
33
The third step in this evolution took place in the case of Melloni, the first
preliminary reference posed by the SCC on 9 June 2011.
34
Contrary to other
Constitutional Courts, the SCC had never announced in the abstract its
itself, are understood as the respect for the sovereignty of the State, or our basic constitutional
structures and of the systemof fundamental principles and values set forth in our Constitution.
29. For an overviewand comment of Opinion 1/04, see the case note by Castillo de la Torre,
Tribunal Constitucional (Spanish Constitutional Court), Opinion 1/2004 of 13 December 2004,
on the Treatv establishing a Constitution for Europe, 42 CML Rev. (2005), 11691202.
30. Until then, the refusal to raise a preliminary reference would only have constitutional
relevance in cases of manifest and arbitrary unreasonableness, a standard hardly possible to
prove, as the SCCs case law until 2004 showed. See, inter alia, Judgments 180/1993 and
273/1993.
31. Judgment of the Second Chamber of the Constitutional Court (Official Gazette n 120
of 18 May 2004), at point 11.
32. See Alonso Garca, case note, 42 CML Rev. (2005), 535548. See also, inter alia,
Martn Rodrguez, La cuestin prejudicial como garanta constitucional: a vueltas con la
relevancia constitucional del Derecho Comunitario, (2004) Revista Espaola de Derecho
Constitucional, 321 and Ugartemenda Ezeizabarrena, El recurso a la prejudicial (234 TCE)
como cuestin de amparo, (2004) Revista Espaola de Derecho Europeo, . 448 et seq.
33. Judgment of the Full Court (Official Gazette of 18 Nov. 2010), at point 2. The judgment
not only confirms its previous decision in Judgment 58/2004, but it also overrules a diverging
decision rendered in case 196/2006 (Judgment of the Second Chamber of the Constitutional
Court, Official Gazette of 20 July 2006).
34. Order 86/2011 of the Full Court.
CML Rev. 2013 882 Case law
willingness to trigger Article 267 TFEU.
35
In line with the infra-
constitutional status of EU law under the Spanish Constitution, it seemed as
if the SCCwas claiming to be an eager conscientious objector to the use of the
preliminary reference procedure. However, in Melloni the SCC changed the
approach and decided to make a reference to the ECJ on a major point of
constitutional principle. The SCCquestioned whether its previous case lawon
the prohibition to render individuals tried in absentia in another Member
State, breached Framework Decision 2002/584 on the European Arrest
Warrant.
36
In the queries posed to the ECJ, the SCC demanded an
interpretation of the Framework Decision and of Article 53 of the Charter that
might green-light its previous case law, and from the tone of the order for
reference (very cooperative and perfectly conscious of the ECJs case law on
the matter) it seemed as if the SCC would willingly adjust the said case law in
order to avoid a loud collision with EU laws (and the ECJs) demands.
37
3.2. Consequences, part I. Constitutional scrutinv of the interpretation
and application of EU law bv Spanish ordinarv courts
The first and most significant contribution of judgment 145/2012 is the
expansion of the SCCs jurisdiction to scrutinize in rather broad terms, and in
light of the Spanish Constitution, the ordinary courts correct interpretation
and application of EU law. This development must be considered in light of
Spains distribution of powers between the SCC and ordinary courts, an
arrangement in line with that of other States with Constitutional Courts
holding powers to hear direct actions of individuals for the protection of
fundamental rights. In the specific case of Spain, the recurso de amparo was
conceived as a remedy of last resort, only available once all the judicial
remedies before the ordinary courts had been exhausted.
38
This feature has
driven the SCCtowards an intensive (and loudly criticized) scrutiny of judicial
action in light of the fundamental rights enshrined in the Spanish Constitution.
During its first twenty-five years of practice, the SCCs scrutiny proved to be
intensive both in depth and scope: as a result of a wide interpretation of the
35. See e.g. the German Constitutional Courts decision in Honevwell (BVerfG, 2 BvR
2661/06 of 6 July 2010, at para 60.
36. Council Framework Decision of 13 June 2002 (O.J. 2002, L 190/1), as amended by
Council Framework Decision 2009/299/JHA of 26 Feb. 2009 (O.J. 2009, L 81/24).
37. In this vein, see the comments of Torres Prez, Constitutional Dialogue on the
European Arrest Warrant: The Spanish Constitutional Court Knocking on Luxembourgs
Door, 8 EuConst (2011), 105127 andArroyo Jimnez, Sobre la primera cuestin prejudicial
planteada por el Tribunal Constitucional, (2011) InDret, . In the meantime, the ECJ gave its
decision: Case C-399/11, Melloni, judgment of 26 Feb. 2013, nyr.
38. See Prez Tremps, Artculo 41 in Requejo Pags (Ed.), Comentarios a la Lev
Organica del Tribunal Constitucional, (Madrid, 2001), p. 654 et seq.
Tribunal Constitucional 883
right to an effective remedy (Art. 24 of the Spanish Constitution), the SCC
opened the door to the review of an ever-growing number of judgments and
orders rendered by ordinary courts. This line of case lawended up flooding the
SCC with thousands of appeals, until in 2007 its Statute was thoroughly
reformed, transforming the recurso de amparo into a remedy subject to a
decision equivalent to a leave for appeal.
39
The reform of 2007 must also be understood in the context of the difficult
relations between the SCC and the judiciary. The wide interpretation of the
fundamental right to an effective remedy, as developed since the creation of
the SCC in 1981, had seriously damaged the institutional relations between
the SCC and members of the judiciary, particularly the Supreme Court. The
new conditions of access to the recurso de amparo are also a sign of
willingness to recognize the Supreme Courts position at the apex of the
Spanish judiciary, limiting the SCCs powers to either serious breaches of
fundamental rights or particularly relevant issues. Although the 2007 reform
also limited the Supreme Courts powers to indirectly scrutinize the SCCs
decisions (a pathological situation that had occurred in the past),
40
the overall
purpose of the reform was to reach an institutional balance between both
Courts.
Taking this background into account, the SCCs position on EUlawand the
recurso de amparo, limited to situations of non-referral of references to the
ECJ before an ordinary court sets aside a parliamentary statute, was coherent
with the newand exceptional role granted to the recurso de amparo as of 2007.
The SCC would only be willing to scrutinize the application of EU law in
cases that concerned directly or indirectly the prerogatives of two courts: the
jurisdiction of the ECJ to hear references, and the SCCs monopoly to
scrutinize parliamentary statutes. Thus, the pre-2012 stance on EU law,
strategically confined to situations of non-referrals in the mentioned
circumstances, was well in line with the current status and goals of the recurso
de amparo.
39. According to Art. 50(1) of the Organic Law on the Constitutional Court, as amended in
2007, The appeal for constitutional protection is submitted to a decision of admissibility. The
Section, by unanimous vote, shall agree the admission of the appeal in whole or in part by
non-reasoned order (providencia), only where the following requirements concur: . . . That the
case in appeal justifies a decision about the content by the Constitutional Court because of its
special constitutional significance, which shall be seen in terms of its relevance for the
interpretation and application of the Constitution, or for the effectiveness thereof, and for
determining the content or scope of fundamental rights.
40. In this regard, Art. 2(2) of the amended Organic Law states that Constitutional Court
decisions may not be reviewed by any domestic law court of the State. Pursuant to this
provision, the SCC will define the scope of its jurisdiction and shall take all necessary
measures to preserve it, including the declaration of nullity of acts or decisions that undermine
it (Art. 2(1)).
CML Rev. 2013 884 Case law
However, judgment 145/2012 proves that the SCC is willing to use the
recurso de amparo beyond those breaches of EU law in which the SCCs
monopoly to scrutinize parliamentary statutes is at stake. It is true that the
facts of the case involved the refusal of an ordinary court to set aside a
parliamentary statute, but only after the ECJ had previously confirmed the
statutes incompatibility with EU law. The SCC is not inviting the ordinary
courts to make preliminary references to the ECJ in order to guarantee
Luxembourgs jurisdiction. What the SCCis actually doing is to guarantee the
enforcement of a previous judgment of the ECJ, assuring its enforcement in
accordance with the legal effects deployed by the judgment of the ECJ, as
established in its case law. Therefore, the cause of concern of the SCC is not
only the correct application of the principle of primacy of EU law, but the
correct application of the said principle as a result of a previous interpretation
of the relevant EU rule bv the ECJ.
This raises the question of the exact scope of the SCCs decision in
judgment 145/2012. A first query has just been mentioned: contrary to the
SCCs case lawin judgment 58/2004, whereby the constitutional duty to make
preliminary references only applies if an ordinary court of last instance is
about to set aside a parliamentary statute, the requirement on the type of act
being set aside is absent from the SCCs reasoning in judgment 145/2012. In
other words, Iberdrola had a winning argument not because it involved setting
aside the Law on the Hydrocarbon Sector, but due to the existence of a
previous judgment of the ECJ ruling on the conformity of a Spanish act
(legislative, executive or judicial) with EU law. The SCCs arguments show
that it is not worried about the parliamentary nature of the act at stake. The
SCCs concern is the authority of the ECJs decisions.
It is also questionable whether judgment 145/2012 concerns only those
situations in which a previous decision has been rendered by the ECJ in
infringement proceedings. The answer to this query should be in the negative.
It is true that the SCC refers throughout its reasoning to the specific effects of
the ECJs judgments in infringement proceedings. The SCC also highlighted
that the judgment of the ECJ concerned exactly the same Spanish rule that
was later declared applicable by the Tribunal Superior de Justicia of Madrid.
Overall, the scope of judgment 145/2012 seems closely attached to a situation
in which the ECJ has declared the incompatibility of a national statute with EU
law, followed by a decision of an ordinary court continuing to apply the same
statute.
However, the fact that judgment 145/2012 refers to a previous ruling of the
ECJ in an infringement procedure does not preclude in any way the possibility
that the SCCs case law might be applicable to other, yet equivalent,
procedures before the ECJ. The obvious example that comes to mind is a
Tribunal Constitucional 885
preliminary reference questioning the conformity of a Spanish rule with an
interpretation of an EUact. In this situation, the judgment of the ECJ declaring
that the Spanish rule is not compatible with an EU act would deploy the same
effect, since the content of the ECJs ruling in a preliminary reference applies
to the EU act from the moment it was enacted, and not from the date of the
judgment.
41
As is well known, the obligation to set aside a domestic rule
contrary to EUlawfalls on each authority, but does not entail the nullity of the
rule.
42
Therefore, it could be the case that an ordinary court, different to the
one that made the preliminary reference, departs from the ECJs decision. In
these circumstances, the outcome of judgment 145/2012 should also apply in
exactly the same terms.
Nevertheless, the underlying rationale of the SCCs decision is also linked
to the fact that the ECJ had previously interpreted the same Spanish rule.
Therefore, it seems unlikely that the same result would apply when the ECJ
decides on a case concerning a rule fromanother Member State, even if it is of
a similar content to a Spanish rule on the same matter. It is also doubtful if the
solution applies when two similar Spanish rules are at stake, one previously
declared contrary to EU law by the ECJ, and the other not. In these
circumstances we might be missing the same constitutional relevance that the
SCCwas however willing to grant to Iberdrolas situation. After all, judgment
145/2012 faced a situation in which an ordinary court was consciously
departing from a clear and unconditional decision of the ECJ. There was
reluctance on the part of the Tribunal Superior de Justicia that came close to
an outright insurgence that the SCC was not willing to tolerate.
3.3. Consequences, part II. The SCC as privileged guardian of the correct
enforcement of EU law
The Iberdrola case is also a telling illustration of how the SCCs case law has
become inevitably intertwined with the ECJs, thus developing a framework
of direct and indirect cooperation that strongly enforces the status of EU law
in the Spanish legal order. The first and obvious sign of direct cooperation was
given in Melloni, the first preliminary reference posed to the ECJ by the SCC,
as previously described. However, the indirect means of cooperation, those
through which the SCC consolidates the ECJs jurisdiction as ultimate
interpreter of EU law, have now been perfected in judgment 145/2012.
41. In fact, the SCC relies on the ECJs judgment in Waterkevn, cited supra note 14, where
this doctrine was applied in the context of judgments rendered in preliminary reference
procedures.
42. See Joined Cases C-10-22/97, IN.CO.GE.90 and Others, [1998] ECR I-6307, at
para 21.
CML Rev. 2013 886 Case law
The two sides of the SCCs indirect means of cooperation appear reflected,
first, in its case lawon the obligation of ordinary courts to make a reference to
the ECJ, and second, in the case law on the obligation to follow previous case
lawof the ECJ. These are two sides of the same coin, since both strands of case
law are directed to assure that ordinary courts comply with the ECJs
jurisdiction, either by asserting its power to interpret EU law through the
preliminary reference procedure, or by reinforcing the duty to follow the
ECJs decisions. Overall, the SCC is not only recognizing the importance of
having ordinary courts interpret and apply correctly EU law, but also the
pre-eminent position of the ECJ as ultimate interpreter of this legal order. In
this regard, it is noteworthy that judgment 145/2012 has carefully avoided, for
the very first time, the reference to EU law as infra-constitutional law.
43
This recognition and active protection of the ECJs position in the Spanish
judicial landscape is not a gratuitous gesture of good will. On the contrary, the
SCChas assumed that the way to assure its jurisdiction and the authority of its
case law comes through a close collaboration with the ECJ, and not by way of
an outright conflict. Past and recent experiences prove that the role of
Constitutional Courts has been significantly more influential when they have
able to assume a constructive approach towards European integration.
44
This
approach is not in contradiction with the obligation of these courts to assure
the compliance of the Constitution, even vis-a-vis EU acts, as the long saga of
decisions of the German Constitutional Court have proved.
45
In this regard, the
SCC has assumed a strategy similar to that of its German counterpart: since it
is inevitable to work together, better to do so in peace than at war.
This attitude also avoids the risk of over-empowering ordinary courts
through EU law. As is well known, Article 267 TFEU limits the powers of
superior national courts to interfere directly in the references sent by inferior
courts to the ECJ.
46
An active stance of the SCC in support of the ECJs
43. This fact has been highlighted by Requejo Pags, Duque Villanueva, Fossas, Ortega
Carballo, Doctrina del Tribunal Constitucional durante el segundo cuatrimestre de 2012,
(2012) Revista Espaola de Derecho Constitucional, 242.
44. See Mayer, Multilevel constitutional jurisdiction, in Von Bogdandy and Bast (Eds.),
Principles of European Constitutional Law, 2nd ed., (Oxford, 2010), p. 421.
45. For an overall view of the German Constitutional Courts position, see Payandeh,
Constitutional review of EU law after Honeywell: Contextualizing the relationship between
the German Constitutional Court and the EU Court of Justice, 48 CML Rev. (2011), 35 et seq.
46. See Case 166/73, Rheinmhlen-Dsseldorf, [1974] ECR 33, at para 3; Case C-348/89,
Mecanarte, [1991] ECR I-3277, at para 44; Case C-261/95, Palmisani, [1997] ECR I-4025, at
para 20; Case C-210/06, Cartesio, [2008], ECR I-9641, at para 88; Melki and Abdeli, cited
supra note 16, at para 41. As the Court stated in Cartesio, it is for the referring court to draw
the proper inferences from a judgment delivered on an appeal against its decision to refer and,
in particular, to come to a conclusion as to whether it is appropriate to maintain the reference for
a preliminary ruling, or to amend it or to withdraw it (at para 96).
Tribunal Constitucional 887
position helps the former to assume a privileged dialogue with the
Luxembourg court. In the case of Melloni, some commentators have
suggested that if the SCC had not made the reference to the ECJ, an ordinary
court would have done so shortly after.
47
If the SCC is finally forced to adjust
its case law, it will be as a result of a direct and bilateral dialogue between itself
and the ECJ, and not because an ordinary court, in communication with the
ECJ, drives the SCC to such an outcome.
48
However, and even if the SCCs position can be interpreted as a survival
strategy, it is also true that judgment 145/2012 has contributed to improve a
rather sophisticated system of constitutional enforcement of EU law before
national courts. This is truly exceptional in the current European landscape,
for it proves the willingness of a Constitutional Court to act as a guardian of
EUlawand of its ultimate interpreter, putting the Constitution at the service of
EU law. National Constitutions are thus not to be conceived only as limits
defining the perimeter of European integration, but also as instruments that
play in the interest of the Union. That is exactly what the recent case lawof the
SCC proves, as it confirms how a Constitutional Court can monitor the
judicial application of EU law, coming into play through the recurso de
amparo in those situations that deserve special supervision. As has been seen,
these situations (non-referrals and deviations from previous decisions of the
ECJ) have the result of assuring and consolidating the interpretative
jurisdiction of the ECJ.
49
At the same time, the SCC assumes a new role as
watchdog of the ECJs powers, a role that grants both courts a privileged line
of dialogue that benefits both EU law and the Spanish Constitution. A clever
game of empowerment in which the main beneficiary may appear to be the
ECJ, although, in fact, it is the SCC who recovers most of the gains.
47. The President of the SCChas openly recognized that this risk was one of the reasons that
pushed the Court to make the reference, in Sala Snchez, La prejudicialidad en la Unin
Europea. La perspectiva del Tribunal Supremo y del Tribunal Constitucional espaoles, in
Dez-Hochleitner et al. (Eds.), Ultimas tendencias en la furisprudencia del Tribunal de Justicia
de la Union Europea / Recent Trends in the Case Law of the Court of Justice of the European
Union (20082011) (Madrid, 2012), p. 75.
48. The SCChad recently been through a similar experience, when an ordinary court raised
a preliminary reference to the ECJ in the Joined Cases C-483/09 & C-1/10, Gueve and
Salmeron, judgment of 15 Sept. 2011, nyr. These references posed several questions concerning
a Spanish statute whose constitutionality was at the same time being questioned before the SCC.
Although the SCCdelivered its judgment before the ECJ, it is also true that the SCCs judgment
was issued sooner than expected, for reasons the reader can imagine.
49. See Arroyo Jimnez, Hacia la normalizacin constitucional del Derecho de la Unin
Europea (a propsito de la STC145/2012, de 2 de julio), (2013) Revista Espaola de Derecho
Europeo, 139 et seq., 156 et seq.
CML Rev. 2013 888 Case law
4. Conclusion
This brief glimpse at judgment 145/2012 has served as significant proof of
how Constitutional courts are currently assuming a pro-active stance in
European integration. Contrary to previous attitudes of the past, of the times
when these courts considered themselves to be way beyond the technicalities
of a legal order too eccentric to be of any constitutional relevance, there are
now significant signs of change. Constitutional courts have realized that
indifference or hostility towards European integration are losing strategies.
The risk of institutional isolation (both in the international and in the national
scene) and the daunting possibility of being forced to reconsider previous
hostile decisions, have contributed to catalyse a change of approach. The
examples are too numerous to ignore: The German Constitutional Courts
europarechtsfreundlich interpretation of the Fundamental Law in
Honevwell,
50
the Belgian Constitutional Courts chronic use of references of
validity to the ECJ,
51
the Austrian Constitutional Courts decision to
incorporate the Charter of Fundamental Rights in its parameter of
constitutional scrutiny,
52
the French Constitutional Councils reinterpretation
of the question prioritaire de constitutionnalite to save its compatibility with
EU law,
53
the Italian Constitutional Courts use of the amendedArticle 117 of
the Constitution to interpret it in light of EU law,
54
and now the SCCs case
law on the constitutional relevance of ordinary courts interpretation and
application of EU law.
However, the fact that Constitutional courts are willing to accept their new
role as relevant players in the Euro-game does not mean that their attitude is
50. See the Honevwell judgment, cited supra note 35, at paras. 58 et seq. On the idea of an
open interpretation of the Fundamental Law towards European law, as developed in the
Honevwell judgment, see Mayer and Maja, Die aktuelle Entscheidung Die
Europarechtsfreundlichkeit des BVerfG nach dem Honeywell-Beschluss, (2011) JURA
Juristische Ausbildung, 539 et seq.
51. See Case C-303/05, Advocaten voor de Wereld, [2007] ECR I-3633; Case C-305/05,
Ordre des barreaux francophones et germanophone and Others, [2007] ECR I-5305, and Case
C-236/09, Association Belge des Consommateurs Test-Achats and Others, [2011] ECR I-773.
See Vandamme, Prochain Arrt: La Belgique! 4 EuConst. (2008), 127.
52. See Judgments U 466/11 18 and U 1836/1113, both of 14 March 2012, at point 35.
53. See Judgment n 2010-605 DC of 12 May 2010, at points 1115. See, inter alia, Simon
and Rigaux, La priorit de la question prioritaire de constitutionnalit: Harmonie(s) et
dissonances(s) des monologues juridictionnels croiss, (2010) Les Cahiers du Conseil
constitutionnel, 6383 and Sarmiento, Larrt Melki: Esquisse dun dialogue des juges
constitutionnels et europens sur toile de fond franaise, (2010). RTDE, 588598.
54. See, inter alia, judgments n 406 (2005) and 348/349 (2007). See Fontanelli, and
Martinico, Between procedural impermeability and constitutional openness: The Italian
Constitutional Court and preliminary references to the European Court of Justice, 16 ELJ
(2010), 345364.
Tribunal Constitucional 889
one of unconditional surrender. On the contrary, Constitutional courts have
become cooperative partners as a result of a self-interested scheme, and their
involvement in European affairs combine strategically bound decisions as
well as the reminder of constitutional limits. In judgment 145/2012, the SCCs
cooperative attitude towards EU law is the result of the Courts need to
reinforce its institutional position vis-a-vis ordinary courts, but it is also a line
of case law that applies to very specific circumstances in which a domestic
rule or decision has been previously declared in breach of EU law by the ECJ.
The SCC is not assuming the role of a universal supervisor of judicial and
administrative application of EU law, but that of an exceptional and last
instance guardian, bound to be involved only in those cases that endanger both
the SCCs and the ECJs authority. As it was previously mentioned, this new
attitude sends a message of complicity to the ECJ, but at the same time it
pursues an institutional reinforcement of the SCC in the domestic arena.
Is all this relevant to the ECJ? Is the newattitude fromConstitutional courts
a reason for the ECJ to fine-tune its approach towards certain issues? This is a
difficult question that begs a well-thought answer, but at a first glance the
answer should be positive. The reasons why the ECJ has taken a harsh stance
in questions such as the autonomy of inferior courts to make references,
55
State liability for judicial action,
56
or the scope of application of EU law,
57
are
closely tied to the presence of a highly decentralized system of judicial
enforcement, where some traditionally uncooperative courts, such as
Constitutional courts, seemed ready to ruin the effectiveness of EU law at any
given moment. This attitude has changed, and it has done so, among other
reasons, with the purpose of ensuring the ECJs interpretative pre-eminence in
the European judicial landscape. Therefore, the ECJ could certainly be more
receptive to this trend by relaxing some previously harsh pronouncements,
whose underlying rationale was no other than (in part) certain distrust towards
domestic judicial attitudes.
In fact, the ECJ seems willing to adjust. In Melki, the ECJ recognized the
French Constitutional Councils efforts to amend the question prioritaire de
constitutionnalite and introduced a minor nuance to the Simmenthal and
Rheinmhlen case law, allowing, although under strict conditions and an
exception, compulsory references from ordinary and administrative judges to
the Constitutional Council before making a reference to the ECJ.
58
The recent
tendency to make use of the national identity clause, as established in Article
55. See cases cited supra note 45.
56. Case C-224/01 Kbler, [2003] ECR I-10239; Case C-129/00, Commission v. Italv,
[2003] ECR I-14637; Case C-154/08, Commission v. Spain, [2009] ECR I-187.
57. See, inter alia, Case 5/88, Wachauf,[1989] ECR 2609; Case C-260/89, ERT, [1991]
ECR I-2925 and Case C-60/00, Carpenter, [2002] ECR I-6279.
58. See Melki and Abdeli, cited supra note 16, at paras. 53 to 56.
CML Rev. 2013 890 Case law
4(2) TEU, is also good proof of the ECJs willingness to overcome absolute
primacy, as von Bogdandy and Schill have recently described.
59
In Akerberg
Fransson, the ECJ openly accepted national standards of fundamental rights
protection, even in areas of implementation of EU law, when EU
harmonization is not exhaustive.
60
Other examples could be brought to the
ECJs attention. To mention but one, the strict application of the Rheinmhlen
doctrine, allowing inferior courts to disregard decisions of their superior
courts, could be subject to minor exceptions in circumstances such as the ones
raised in the Elchinov case, as the Advocate General invited (unsuccessfully)
the ECJ to do.
61
It is obvious that some of the instruments and doctrines of the 1970s will
eventually need to be revised. The exact scope and degree of such a revision is
something that deserves serious consideration, as well as a cautious approach.
Not all domestic Constitutional courts have shifted in the same way, and some
attitudes are still a legitimate cause of concern.
62
However, judicial authority
in a changing political context will only assert itself by way of its ability to
accommodate the needs and efforts of other institutional players. So far,
Constitutional courts have been the latest ones to make a relevant move. They
might rightly expect the ECJ to take its turn now.
Daniel Sarmiento
*
59. Von Bogdandy,and Schill, Overcoming absolute primacy: Respect for national identity
under the Lisbon Treaty, 48 CML Rev. (2011), 14171453.
60. Case C-617/10, Akerberg Fransson, judgment of 26 Feb. 2012, nyr, para 29.
61. Case C-173/09, Elchinov, [2010] ECR I-8889.
62. The judgment of the Czech Constitutional Court in the Landtova case (Pl. S 5/12, of
31 Jan. 2012) is the paradigm of a problematic and non-cooperative approach. See Zbral,
Czech Constitutional Court, judgment of 31 January 2012, Pl. S 5/12. A Legal revolution
or negligible episode? Court of Justice decision proclaimed ultra vires, 49 CML Rev. (2012),
14751491; Dyevre, Judicial non-compliance in a non-hierarchical legal order: Isolated
accident or omen of judicial armageddon?, forthcoming.
* Professor of EU and Administrative Law (Universidad Complutense de Madrid) and
referendaire at the European Court of Justice. Many thanks to Ricardo Alonso Garca, Holger
Hestermayer, Juan Luis Requejo Pags and the three anonymous reviewers for very useful and
insightful comments. All views (and all errors) remain my own.
Tribunal Constitucional 891
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