European briefing | The relationship between national courts 'and the ECJ: a clear answer

Although C-416/10 Krizan (Grand Chamber, 15 January 2013) breaks no new ground, it does starkly raise some important questions about the basic structure of the EU legal order, and in particular about the relationship between the ECJ and national courts.

It is a fundamental principle of European Union law that EU law is ‘supreme’. If there is a conflict between an apparent legal rule derived from national legal sources, and a legal rule derived from EU legal sources, the EU rule prevails. Although the implications of this principle remain politically controversial, as a legal rule the principle of supremacy is firmly established: without any qualification, so far as the ECJ is concerned and, since the late 1980s, without any practical qualification so far as national courts are concerned.

It is also a fundamental feature of the EU legal system that the European legal system lacks any direct means of enforcement. There is no European tipstaff who can be sent to execute the judgments of the ECJ; no European policeman to effect arrests. The ECJ is like a brain in a vat. It can think, but it cannot do. It must turn parasite: co-opting the national legal systems to do its work, persuading national judges to present it with questions it can answer.

This has proved a largely effective technique, but not an entirely simple one. The most persistent difficulty has been this: how far must the ECJ take its ‘host’ as it finds it? To what extent can it attempt not only to use, but also in some ways to reform them?

National court systems are, for good reasons, normally organised hierarchically. A decision of a court of appeal in a particular case trumps that of the lower court; a decision of the Supreme Court trumps that of the court of appeal. But suppose a superior court gets EU law wrong: is the lower court bound by that decision? Things may be even more complicated in systems which have separate courts for, for instance, private law questions and constitutional questions. Such systems will usually ensure that the pecking order is clear. Can that pecking order be subverted by permitting one court, in effect, appeal over the head of the notionally superior court, to the ECJ.

That was the issue in Krizan. A decision of the Slovak Supreme Court in a complex environmental case had been overturned on appeal to the Constitutional Court, and remitted for reconsideration. Under Slovak law, the lower court was bound to reconsider in a manner consistent with the appeal court’s judgment. But the Supreme Court still had doubts about the compatibility of the contested measure with EC law. It therefore referred the question to the ECJ, asking whether its doubts were justified, and (if so) whether it was entitled to ignore the Constitutional Court’s view, even though under Slovak law it was purportedly binding.

The ECJ thought that the doctrine of supremacy provides a clear answer: if a national court must apply EU law, then a national court must apply EU law. If that is not done, it is no excuse that the national judge was following the orders of a ‘superior’: the obligation involves some direct relationship between the EU and each national judge, whereby the national judge owes allegiance directly and primarily to the EU. The procedural reflection of this bond of allegiance is the national judge’s correlative right (or obligation) to refer EU questions to the ECJ. The answer to the question “Can an inferior court appeal to the ECJ over the head of its superior?” is yes.

That is not new; it reflects the established way of looking at the relationship. But does it sufficiently reflect the complexity of the situation? An alternative way of looking at the matter would be to see the Treaties as establishing a relationship not between national legal orders and the Luxembourg court. The ECJ’s view sees just one fundamental objective: to ensure the correct application – case by case – of EU law. But might there not also be an interest in maintaining some semblance of structured orderliness within the national legal system? Sometimes these two objectives point in different directions. If a lower court is bound by a higher court’s erroneous decision, justice may not be done in the individual case. But the price for undermining that order is a destabilisation of the order, or the architecture, of a national judicial system, which carries its own costs.

The ECJ’s reply would presumably be that the reference procedure prevents the sort of chaos that might ensue if every court were free to go its own way: for in the end the interpretation of EU law will be for the ECJ. But there is still a heavy price, potentially, to be paid: by litigants forced to bear the cost and delay of references to the ECJ (and, after all, how often will lower courts be right in their second guesses?), and by the ECJ itself – a court struggling under a workload which imposes its own risks for the quality of decisions. Although the ECJ’s answer in Krizan reflects conventional thinking on the matter, it remains worth asking whether the conventional thinking is truly sound, or whether a more realistic view would accord much greater weight to the procedural rules by which national legal systems maintain an orderly relationship between courts.