National constitutional courts’ use of the ECJ's precedents: The case study of Czechia
| Published date | 01 June 2024 |
| DOI | http://doi.org/10.1177/1023263X241260048 |
| Author | Marek Pivoda,Štěpán Paulík,Sebastian Křepela |
| Date | 01 June 2024 |
National constitutional courts’
use of the ECJ’s precedents:
The case study of Czechia
Marek Pivoda* , Šte
̌pán Paulík**,
and Sebastian Kr
̌epela***
Abstract
This article interrogates how Member States’constitutional courts make use of the case-lawof the European
Court of Justice. Instead of focusing on the extreme instances of open backlash, we put forward a data-driven
methodological approach to the study of Europeanization of national constitutional courts. Drawing on the
use of automatic text analysis, we suggest that searching for the formal citations of the rulings of the European
Court of Justice in the constitutional courts’case-law contributes to nuanced understanding of their role
within the EU. By means of a case study of the Czech Constitutional Court’s case-law (more than 71 000
decisions issued between the years 2004 and 2022), we demonstrate a way to explore the so far under-
researched area of EU law adjudication where the majority of strategic behaviour might be taking place.
Keywords
Europeanization, European Court of Justice, constitutional courts, European Union
1. Introduction
While having to deal with numerous crises over the past years –those of climate, pandemic, late
capitalism and many others –the European Union’s project of integration through law has been
moving forward in quantitative terms.
1
Given the steady increase in the number of EU’s regulatory
*
Department of Constitutional Law and Political Science, Masaryk University, Brno, Czech Republic
**
Humboldt Universität zu Berlin, Law and Society Institute, Berlin, Germany
***
An Independent Researcher, Brno, Czech Republic
Corresponding author:
Marek Pivoda, Department of Constitutional Law and Political Science, Masaryk University, Vever
̌í 70, 611 80 Brno, Czech
republic.
Email: marek.pivoda@law.muni.cz
Correction (September 2024): Table 2 in the article has been updated since its original publication.
1. On the notion of the ‘integration through law’, see M. Cappelletti, M. Seccombe and J. Weiler (eds), Integration Through
Law: Book 1: A Political, Legal and Economic Overview (De Gruyter, 1986), p. 4. A growing critique of that conception
Article
Maastricht Journal of European and
Comparative Law
2024, Vol. 31(3) 360–384
© The Author(s) 2024
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1023263X241260048
maastrichtjournal.sagepub.com
instruments, the process of Europeanization
2
of Member States’legal orders becomes more and
more evident.
3
This expanded reach of EU law dynamically affects the position of all national insti-
tutions, and national constitutional courts (CCs)
4
are no exception in that regard.
From the perspective of the centralized constitutional courts of the Member States, the heat of the
Europeanization process has been spreading bottom-up. Multiple doctrines of the European Court
of Justice (ECJ) –primacy principle, doctrine of direct effect and principle of consistent interpret-
ation, to name just a few
5
–together with Article 267 TFEU preliminary reference procedure –have
empowered all ordinary national judges to effectively circumvent any piece of domestic legislation
they deemed incompatible with EU law.
6
In other words, all domestic ordinary courts were materi-
ally enabled to perform a form of diffuse judicial review of national legislation even though this was
not a traditional role assigned to them by their respective national constitutions.
7
As a result, these
ordinary domestic courts have swiftly assumed their new role of the ‘European union courts’.
8
Understandably, this radical bottom-up development has put national constitutional courts under
significant amount of pressure.
The effects of the new system of diffused judicial review were further strengthened in 2009 when
the Charter of Fundamental Rights of the European Union (EU Charter) entered into force. Since
then, constitutional courts must share their central agenda of human rights protection not only
claims that the model of integration though law has been a failure in the qualitative sense (see Editorial Comments, ‘The
Critical Turn in EU Legal Studies’,52CMLR (2015), p. 881).
2. The concept of Europeanization with regards to judiciary reflects the idea that the national courts/judges are expected to
act as decentralized European Union (EU) judges. See U. Jaremba and J. Mayoral, ‘The Europeanization of National
Judiciaries: Definitions, Indicators and Mechanisms’,26Journal of European Policy (2019).
3. One older study indicates that in the period from 2002 to 2005, already almost 40% of German federal legislation was
Europeanized. In: A. Töller, ‘Measuring and Comparing the Europeanization of National Legislation: A Research
Note’,48Journal of Common Market Studies (2010), p. 417.
4. We use the term ‘constitutional court’in the broad sense. Traditionally, the European model of constitutional review has
been characterised by five constituent components: (1) CCs possess monopoly to declare infra-constitutional legal norms,
including statutes, as well as individual legal acts unconstitutional; (2) CCs primarily deal with the disputes concerning
interpretation and application of constitutional norms; (3) CCs resolve the cases in which specifically designated author-
ities or individuals ask questions challenging the constitutionality; (4) CCs are formally detached not only from legislative
and executive branches of government, but they also stand outside the structure of ordinary courts; and (5) most CCs may
review constitutionality of statutes or international treaties in abstracto meaning that they are empowered to review the
acts independently on a specific case before or after they have been enforced; other courts may also review legal acts in
concreto. See A. Stone Sweet, ‘Constitutional Courts’, in M. Rosenfeld and A. Sajó (eds.), The Oxford Handbook of
Comparative Constitutional Law (OUP, 2012), p. 819.
5. For a good overview of fundamental doctrines which place high expectations on national judges, see T. Nowak and
M. Glavina, ‘National Courts as Regulatory Agencies and the Application of EU Law’,43Journal of European
Integration (2021), p. 739, 740–741.
6. W. Mattli and A.M. Slaughter, ‘Revisiting the European Court of Justice’,52International Organization (1998),
pp. 190–196; See also K. Alter, ‘Explaining National Court Acceptance of European Court Jurisprudence: A Critical
Evaluation of Theories of Legal Integration’, in A.M. Slaughter, A. Stone Sweet and J.H.H. Weiler, The European
Court and National Courts—Doctrine and Jurisprudence (Hart Publishing, 1998), p. 249.
7. J. Weiler, ‘The Transformation of Europe’, 100 The Yale Law Journal (1991), p. 2426; A. Voßkuhle, ‘Multilevel
Cooperation of the European Constitutional Courts: Der Europäische Verfassungsgerichtsverbund’,6EuConst (2010),
p. 176.
8. I. Maher, ‘National Courts as European Community Courts’,14Legal Studies (1994), p. 22; Monika Claes wrote about
national courts operating under a ‘Community mandate’, in M. Claes, The National Courts’Mandate in the European
Constitution (Hart Publishing, 2006); Jaremba explains how national judges are expected to function as ‘decentralised
EU law judges’, in U. Jaremba, National Judges as EU Law Judges: the Polish Civil Law System: The Polish Civil
Law System (Brill, 2013), pp. 47–112.
Pivoda et al. 361
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