Nuclear War between the Court of Justice and Czech Constitutional Court (hopefully) averted

There has been an incessant debate in the last decades which court holds the highest cards in the EU. Is it the Court of Justice or national courts, namely those of constitutional rank? It seems that the judges in Luxembourg argue for their primacy, while at least some of the national ones tend to disagree. Yet the judicial debate was all about dancing around with hints and threats and no direct conflict. No wonder theories such as constitutional pluralism began to dominate the academic discourse.

In January 2012 the Czech Constitutional Court ended the long truce when it declared in its decision Pl. ÚS 5/12 the Court of Justice decision C-399/09 Landtová ultra vires. The background and reasons for this judgment were summarized at this blog by Jan Komárek. For more detailed commentaries I could recommend case notes by Komárek in European Constitutional Law Review (2012, vol. 8, no. 2, pp. 323-337) or me in Common Market Law Review (2012, vol. 49, no. 4, pp. 1475-1492). To sum up analysis in CMLRev, I was highly critical of the Czech Constitutional Court argumentation and claimed that the attack on the Court of Justice was only a collateral damage in its war with the Supreme Administration Court over the Slovak pensions case-law. I however concluded that despite there were conceivable avenues how to further escalate the conflict, I hoped (and believed) all actors would calm down and try to mitigate the damage.

But as the Bible says, “A prophet has no honour in his own country”. I grossly underestimated the determination of Czech courts. On 9 May, the Supreme Administration Court in another case related to Slovak pensions decided to submit set of preliminary questions to the ECJ, reacting to the Constitutional Court’s decision (6 Ads 18/2012) ...

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