Asked 2nd Dec, 2012

The Ultra Vires Threat from National Constitutional Courts: Is It Becoming a Reality?

The Ultra Vires Threat from National Constitutional Courts: Is It Becoming a Reality?
The German Bundesverfassungsgericht has in several of its judgments threatened that it can decide that acts of the EU institutions are ultra vires. While its statements in this regard have been followed by several other constitutional courts, until recently no court had actually found an EU act ultra vires. This has now changed following the judgment of the Czech constitutional court in Landtova, holding that a ruling of the Court of Justice was ultra vires. Was this an aberration or will we see more challenges to EU law and the Court of Justice courtesy of national constitutional courts

All Answers (3)

11th Feb, 2016
Stefan Nicholas Vella
Ministry within the Office of the Prime Minister
I humbly suggest as a practitioner in EU law and my personal experience in litigation in front of the Maltese Constitutional Court and the First Hall Civil Court, that there is this possible threat of 'ultra vires' dicta on EU legislative instruments. It is only that local courts tend to prefer to use Maltese casuistry to found reasons why the European Law does not apply, and they do this without making any explicit reference to EU law, and avoid applying EU law at all, when:
a) they feel that a person whether natural or juridic, is protected more when it comes to human rights, under the Constitution of Malta; and
b) where they feel that the jurisdiction of the courts in Malta is questioned and they consider that the merits of the case subject to their cognizance is more apt to be judged in the light of local jurisprudence rather than EU law.
17th Apr, 2017
Graça Enes
University of Porto
I believe that we will witness more 'activism' from national courts and the 'ultra vires' argument will be put forward. Nevertheless, the deflected ways Stefan Vella mentioned will continue to be the favourite ones used by national courts. I think that ECJ needs also to assume a truly multilevel approach that it has not done so far, in my opinion, as Opinion 2/13 concerning the ECHR accession proves.
1 Recommendation
17th Apr, 2017
Francisco Javier Donaire Villa
University Carlos III de Madrid
A most interesting question, with multiple and open possible answers. From the view of European Union, the logical legal consecuence would be the procedure against that Member State for failure to fulfill its obligations under EU Law, which may be started by either the Commission (in its role as Guardian of the Treaties) or any other Member State, and which may end, preciselly in the EU Court of Justice, with periodical fines by time intervals of non fulfilment, as it is well known.
In the Melloni Case, the EU Court of Justice discarded any construction or reading of Article 53 of the Charter of Fundamental Rights against primacy of EU Law even when national Constitutions provide a higher level of protection of fundamental rights than that offered by EU Law. Nowadays, in Taricco II, a prejudicial reference recently made (in 2017), the Italian Constitutional Court poses the question of ultra vires, and litterally makes the hypothesis of the clause of Constitutional identity (Article 4.2 of the TEU) as a legal means to be able to declare void in Italy rules of EU derivative legislation in breach of fundamental principles of the national constitutional order. It is the first time that a national Constitutional Court suggests this clause with such a value of limit for EU Law primacy.
Although there is not an EU Court Sentence in the Taricco II case yet, it may be forseeable that any use of this clause will at least require to be explicitly cited in a prejudicial reference by a Constitutional Court when it contends that there is ultra vires. And more foreseeably, the ECJ will not admit easily that this clause may work as a national limit of EU Law primacy. Rather, it might act as a way to appeal a previous EU Court of Justice, if invoked by a Constitutional Court in a prejudicial reference, as it has been suggested by the Italian scholar Davide Paris in a recent, thought-provoking paper on Taricco II.
Mainly because of the new EU legislation on the area of freedom, security and justice (Framework Decision on the European Warrant of Arrest, Article 54 of the Schengen Convention, Dublin Regulations, etc), which  affects to (or even directly regulates and restricts) relevant fundamental rights, such as personal freedom itself, pressumption of innocence, ne bis in idem, due process of law, and several others, preliminary rulings forwarded by national Constitutional Courts to the EU Court of Justice (as, for example, in Melloni) are actually increasing.
And this increase seems to be foreseable in the next future, not totally but perhaps chiefly fuelled by the new EU legislation on the area of freedom, security and justice, in an european example of what American scholars labelled some decades ago as "judicial dialogue". In this case, between the EU Court of Justice and the national Constitutional Courts.
1 Recommendation

Similar questions and discussions

Does the highest court in your country have the possibility to give a preliminary ruling?
34 answers
  • Ruben De GraaffRuben De Graaff
On 1 July 2012, the preliminary reference procedure was introduced at the Supreme Court of the Netherlands. When lower civil courts face controversial points of law, they may refer a question of interpretation to the Supreme Court and request a preliminary ruling. This way, the Supreme Court should be able to provide legal practice with a faster and more specific response to pressing legal questions than through the ‘ordinary’ procedure.
This preliminary reference procedure is not a modern invention. It was already known in Rome, existed in a specific form in France (référé législatif, where a question of interpretation was referred to the legislator), was used at the Italian Corte Costitutionale and has been a powerful tool for the development of EU law by the European Court of Justice in Luxembourg (see the attached blog and article). Furthermore, Protocol 16 to the ECHR will allow highest courts of states that have ratified this Protocol to refer a question of principle to the European Court of Human Rights for an advisory opinion.
I wanted to use ResearchGate for a small comparative exercise. Perhaps you would like to answer the following questions. May lower courts in your country refer a question of interpretation to the highest court(s) in your country? Did such an instrument once exist, or is the introduction of such an instrument currently under consideration in your country?
I am also interested in literature on this subject and in other relevant international examples.
Your help is greatly appreciated,
Blockchain, personal data protection and the EU GDPR
3 replies
  • Christian PaulettoChristian Pauletto
The compatibility of DLT-based applications with the GDPR has been reviewed in the past years, but the conclusions were in general not very sharp. Often, scholars underscored the fact that compatibility or lack thereof can only be assessed on a case-by-case basis. This is at least the conclusion I drew in my article on the matter, available at :
.Yet, I wonder if, with the recent developments in technology and applications, and with the better understanding of how the GDPR is implemented, time has come for a renewed assessment of the relationship between the two. Are there ways to make DLT applications a priori GDPR compatible? if so, how? Or, to the contrary, are DLT a priori not meeting the GDPR requirements? and if so why and what should be fixed when it comes to concrete use cases?
Many thanks for a lively discussion.
Christian Pauletto
Opinions of AG in Fransson C‑617/10 and of the AG in Zambrano C‑34/09 seem to intake slightly different positions. What is your stance on this matter?
Be the first to answer
  • Emanuela A. MateiEmanuela A. Matei
AG Cruz Villalón proposed that the Court should declare that it lacks jurisdiction to reply to the following questions referred to it by the Swedish Court (Haparanda tingsrätt) and related to the Swedish system of penalties applicable to infringements of VAT legislation.
RELEVANT LAW: Article 6 TEU, Articles 50, 51 Charter, VAT Directive - art 273, ECHR- Article 4 of Protocol No 7
The requirement to respect fundamental rights defined in the context of the Union is only binding on the Member States when they act in the scope of Union law (judgment of 13 July 1989, Case 5/88 Wachauf [1989] ECR 2609; judgment of 18 June 1991, Case C-260/89 ERT [1991] ECR I-2925; judgment of 18 December 1997, Case C-309/96 Annibaldi [1997] ECR I-7493).
The central authorities of the Member states have to respect their duties flowing from the protection of fundamental rights in the Union legal order, while implementing EU law, (Kjell Karlsson para 37)
By distinguishing between CAUSA (collecting VAT) and OCCASIO (penalties provided for a specific conduct of a VAT taxable person), AG CRUZ VILLALÓN concludes that the authorities of Sweden do not implement EU law in this case and therefore the CJEU lacks jurisdiction to give a ruling in these proceedings.
AG Sharpston in Zambrano Case C‑34/09 had an interesting proposition:
163. Transparency and clarity require that one be able to identify with certainty what ‘the scope of Union law’ means for the purposes of EU fundamental rights protection. It seems to me that, in the long run, the clearest rule would be one that made the availability of EU fundamental rights protection dependent neither on whether a Treaty provision was directly applicable nor on whether secondary legislation had been enacted, but rather on the existence and scope of a material EU competence. To put the point another way: the rule would be that, provided that the EU had competence (whether exclusive or shared) in a particular area of law, EU fundamental rights should protect the citizen of the EU even if such competence has not yet been exercised.

Related Publications

In deze bijdrage wordt ingegaan op de invloed die het Europese recht heeft op het Nederlandse milieuprivaatrecht. Onder ‘milieuprivaatrecht’ wordt hier in ruime zin verstaan de raakvlakken die het privaatrecht heeft met de milieuproblematiek. Het gaat dan zowel om de doorwerking van milieunormen in privaatrechtelijke rechtsverhoudingen als om de in...
Got a technical question?
Get high-quality answers from experts.