Cautious Openness: the Spanish Constitutional Court’s approach to EU law in recent national case law
By Mario García
In recent months, the Spanish Constitutional Court (SCC) has issued a series of decisions related to EU law that show an interesting combination of both openness toward the European legal order and a certain degree of apprehension to the growing role of the Court of Justice of the European Union (CJEU) in constitutional matters. In these cases the SCC has arrived at fairly pro-EU results: the SCC decided that preliminary references from Spanish courts to the CJEU take precedence over constitutional questions submitted to the SCC, and that a non-transposed, directly-effective EU Directive can be taken as a factor in the interpretation of a constitutional provision. But, as discussed below, the details subtly suggest that the SCC does not fully agree with the ways in which the CJEU has asserted its institutional position, and prefers to avoid potential conflicts in the future.
This post hypothesises that this may be the result of the way in which the CJEU handled the SCC’s first (and so far, only) preliminary reference. First, I briefly explain these developments. Then, I provide a comment.
The SCC wants the CJEU to speak first: EU preliminary references take precedence over constitutional questions
Under Article 163 of the Spanish Constitution, ordinary judges may submit a ‘constitutional question’ to the SCC when, in the midst of a case, they are confronted with an applicable and relevant legal provision that they think is inconsistent with the Constitution. When judges refer a constitutional question to the SCC, among other requirements, they must explain why their ruling depends on the constitutionality of the provision. This is called the ‘relevance test’. If a referral does not meet the relevance test (i.e. the judge has not explained why the questioned legal provision is relevant for the specific case), the SCC dismisses the question and remands the case back to the ordinary court.
In October and November 2016, the SCC issued Orders 168/2016, of 4 October (published on 15 November), and 183/2016 and 185/2016, both of 15 November (published on 26 December) rendering inadmissible constitutional questions that had been submitted by Spanish judges simultaneously with EU preliminary references (i.e. the judges had considered that certain provisions could breach both the Constitution and EU law and had referred the cases to the SCC and the CJEU, respectively).
In these three orders, the SCC concluded that the constitutional questions did not meet the relevance test because, under the principle of primacy of EU law, a national provision that is found to be incompatible with EU law must be displaced and cannot be applied by the national courts when deciding a case. Thus, a national law that is inconsistent with EU law is not ‘applicable’ or ‘relevant’ to the case in the terms of Article 163 of the Constitution. When an EU preliminary reference is pending, the requisite of applicability and relevance has not been proven and therefore the constitutional question is inadmissible.
Accordingly, when a Spanish judge thinks that a law may breach both the national Constitution and EU law, he or she must first make a preliminary reference to the CJEU. Only if the law is found to be compatible with EU law (and thus the law is found to be applicable) can the judge then proceed to submit the question to the SCC. Simultaneous referrals to the SCC and to the CJEU questioning the compatibility of a law with both the Constitution and EU law are not permitted.
While the reasoning contains some points on EU law (the SCC mentions the cases of Melki and Abdeli [Joined Cases C‑188/10 and C‑189/10], A v B and Others [C-112/13] and Kernkraftwerke Lippe-Ems GmbH v Hauptzollamt Osnabrück [C-5/14] to explain that national constitutional proceedings cannot hinder EU preliminary references), the conclusion is reached mostly on the basis of Spanish constitutional law.
With this, the SCC avoids simultaneous talk with the CJEU and facilitates that EU law-related questions have already been solved when proceedings reach the constitutional jurisdictional level, thus dealing with constitutional cases with all cards on the table.
The SCC has applied EU law in constitutional cases – without asking the CJEU
In its recent decisions, the SCC has used EU law to solve constitutional cases. Some of these cases were fairly obvious ones. For example in STC 232/2015, the SCC found that a court had breached the fundamental right to a fair trial of an interim public employee by ostensibly refusing to apply clear and consistent CJEU case law regarding the prohibition of discrimination between interim and career public employees.
In STC 148/2016 and STC 223/2016, the SCC found that a court had breached the fundamental right to a fair trial of the claimant consumer by suspending an individual action brought by the consumer pending a final judgment concerning an ongoing collective action brought by a consumer association, in manifest breach of CJEU case law.
Finally, in cases regarding whether regional law had overstepped into the domain of national legislation, the SCC has used EU law and CJEU decisions to construe the meaning of national legislation and define the perimeter in which regional laws can validly operate (see STC 157/2016).
The application of EU law in these cases was reasonably straightforward, given that the meaning of the relevant EU provisions was well-established by CJEU decisions. However, a very different case can be seen in one of the most recent decisions of the Court.
In STC 13/2017, published on 10 March 2017, the SCC found that the police and a lower court had violated the right to personal freedom of two detainees whose lawyer had not been given access to the arrest file, as provided by article 7 of Directive 2012/13/EU on the right to information in criminal proceedings. In that case, the detainees’ public defender had applied to see the materials of the case in order to challenge the arrests. The Guardia Civil denied the request and the lawyer filed a habeas corpus petition before a court decrying that the arrests were illegal due to lack of information. The lower-court judge rejected the petition explaining, first, that although article 7 of Directive 2012/13/EU provided for such right of access, Spain had not yet transposed the Directive into national law. And second, that in any case the file was not complete because the agents were still preparing the relevant documents.
In its judgment, the SCC explained that even though EU law is not itself part of the constitutional canon, “both international treaties and agreements, including European secondary legislation, may provide valuable interpretative criteria of the meaning and scope of the rights and freedoms that the Constitution recognises,” taking into account the interpretive decisions rendered “by the bodies of guarantee established under those same international treaties and agreements.” Although Directive 2012/13/EU had not been duly transposed, the SCC found –mentioning the CJEU’s general case law on the direct effect of EU directives – that its article 7 was binding given that it contains unconditional and sufficiently clear and precise provisions that could be immediately enforced. Furthermore, the Court explained that access to the file could not be denied with the excuse that agents were still preparing the documents, because the arrests had been prompted by several complaints and those had to be accessible in some format. Therefore, the SCC concluded that the lower court’s decision was not justifiable under Directive 2012/13EU and had consequently violated the Spanish Constitution’s personal freedom clause by not having granted the habeas corpus petition.
This case poses some obvious questions for constitutional scholars. For example: is the Court really saying that the meaning of constitutional provisions may change whenever the EU legislature passes a new piece of secondary legislation? Although the Court had previously stated that international and EU rules should be taken into account when interpreting the Spanish Constitution, the consensus seemed to be that the resulting interpretation would be permanent and only would be overruled in extraordinary situations. The way in which the SCC applied article 7 of Directive 2012/13/EU in this case suggests a more flexible approach toward constitutional interpretation.
From the point of view of EU law, what is really noteworthy is the decision of the Court not to refer the case to the CJEU to confirm (a) whether article 7 of Directive 2012/13/EU really was unconditional and sufficiently clear and precise to be directly applicable in the absence of transposition, and (b) whether the scope of the right of access to the arrest file is as wide as the SCC thought or as narrow as the lower court had originally interpreted. The SCC made no apparent attempt to decide whether it was obliged to submit the reference under Article 267 TFEU or to apply the criteria established by the CJEU in the Cilfit case.
This brief account of the SCC’s recent decisions shows that the Court is more than willing to resort to EU law when deciding cases. Most of these uses of European provisions in constitutional cases come up naturally when analysing matters that are increasingly intertwined with EU law. As AG Cruz Villalón put it in a high-profile opinion, “the intensification […] of the EU legal order is prompting the courts of the Member States with a specifically constitutional role to behave increasingly as courts or tribunals within the meaning of Article 267 TFEU” (see Opinion of AG Cruz Villalón of 14 January 2015, Gauweiler, C-62/14, par. 40).
Still, while this “intensification” has made the constitutional courts of the Member States, and specifically the SCC, apply EU law more often, it is difficult to say whether these courts are actually submitting preliminary references to the CJEU whenever they have to address an EU law issue or whether they only do so exceptionally. In the case of the SCC, the STC 13/2017 judgment seems to suggest that the Spanish court prefers not to ask the European one.
The origin of this attitude may be traced back to 2011, when the SCC submitted its first-and-only preliminary reference and received a controversial response from the CJEU. After that, the SCC has not referred a case to the CJEU ever again.
As explained at length in two previous entries in this blog, in 2011 the SCC was confronted with the Melloni case, concerning a direct collision between national constitutional case law and EU legislation on the European Arrest Warrant. For that reason, the SCC submitted its first-ever preliminary reference to the CJEU questioning, in the sensitive part, whether under Article 53 of the EU Charter of Fundamental Rights the Spanish Constitution could grant a higher level of protection than that provided for under EU law. In its controversial judgment of 26 February 2013, the CJEU said ‘no’: where an EU legal act harmonises the law between the Member States, national constitutions cannot provide higher levels of protection. On the same date of the Melloni decision, the CJEU issued the judgment in the Åkerberg Fransson case (C-617/10), containing the same doctrine.
The CJEU’s Melloni and Fransson decisions had the obvious effect of carving away the power of national constitutional courts to determine the meaning of their state constitutions in cases where the law has been fully harmonised by EU law. Given that these situations are completely governed by EU law, the level of protection afforded to the parties can only be that of the Charter, the ultimate interpretation of which falls to the CJEU. As a result, Melloni and Fransson tipped the balance of constitutional jurisdictional power in favour of the European court, in detriment to state ones.
Almost a year later, the SCC issued its unanimous judgment in the Melloni case reversing its own case law. The reading of the decision showed, however, that the SCC was not entirely happy. While accepting the result, the Court did not expressly adopt the CJEU’s interpretation of Article 53 of the Charter. The opinion also included a warning in passing: “in the hardly conceivable case that the future dynamics of European Union law were deemed irreconcilable with the Spanish Constitution, without these hypothetical excesses of European law … being remedied through the ordinary processes provided for [by EU law],” the SCC may need to step up to guarantee “in the last resort the preservation of the sovereignty of the Spanish people and of the supremacy of the Spanish constitution.”
The judgment had three concurring opinions. Two of them, drafted by Justices Adela Asua and Encarnación Roca, were fairly more favourable to the CJEU than the judgment itself. The third one, though, written by Justice Andrés Ollero, complained that the judicial dialogue between the SCC and the CJEU had “unnecessarily [been given] a sense of a monologue where assent is compulsory.”
It is difficult not to feel that the result of the first preliminary reference submitted by the SCC was not satisfactory for the Spanish court and that at least some of the Justices felt that the CJEU had not engaged in this contact in a constructive, bilateral manner, but rather in an imposing way.
The CJEU’s position in Melloni and Fransson has also triggered responses elsewhere. In 2013, a couple of months after these decisions were issued, the German Federal Constitutional Court took the opportunity in a fundamental rights case to mention the Fransson judgment to openly warn legal operators (the CJEU included) that the CJEU’s doctrine “must not be read in a way that would view it as an apparent ultra vires act or as if it endangered the protection and enforcement of the fundamental rights in the Member States” (Judgment of the First Senate of 24 April 2013 – 1 BvR 1215/07 – para. 91).
Melloni and Fransson seem to increase the chances of constitutional clashes between national high courts and the CJEU. This possibility is no longer hypothetical. After the 2012 Landtová showdown between the Czech Constitutional Court and the CJEU, in December 2016 the Danish Supreme Court issued its decision in the Dansk Industri case openly defying a CJEU judgment. To borrow Jan Komarek’s expression, it seems that some national courts are now willing to ‘play with matches.’
Based on the way the SCC has approached EU-themed cases recently, the Spanish court has taken a more subtle route to avoid similar controversies in the future. First, the SCC has applied EU law without referring the cases to the CJEU even when, under the requirements of the Cilfit doctrine, it appears that it should have done so. This way, the SCC escapes any risk of direct collision with the European court (at least, as long as the Commission does not launch an infringement procedure and brings a case before the CJEU). Second, by giving preference to EU preliminary referrals over national constitutional questions, the SCC has ensured that the CJEU and the national court do not ‘speak simultaneously’.
The behaviour of the SCC may herald a new pattern among the more cautious national high courts: applying EU law without consulting the CJEU. If this were the case, and while the concerns of national constitutional courts are understandable, the non-referral of constitutional cases to the CJEU would have the undesirable consequence of depriving the legal community of a much-needed, European-wide constitutional dialogue.
A very interesting analysis putting forward the fundamental constitutional issues that the relation between the EU and its Member States faces at the moment. The ECJ approach neglects the negative effects on fundamental principles built by a national constitutional consensus and enshrined in the Constitutions, such as legal certainty in criminal matters (v.g. the Taricco case) and to that constitutional courts cannot look the other way.
We may well have reached the limits of the ‘functionalist’ way of building a constitutional Union. Even if we follow Tully’s plural constitutional proposals, as I believe we should, the question of the limits and competencies of the Union have to be discussed, especially as the answer may rely on more european legislation…
Faculty of Law, University of Porto