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

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.

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.

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.