Irmgard Griss

Role of national Supreme Courts in the European law system

I. Introduction

European integration has been and is integration by law. The European Union was founded by a treaty and its enlargements are also based on contractual agreements. It is therefore quite clear that a state’s joining the EU has consequences for its legal system. This is particularly true for the position of national courts and essentially the position of the Supreme Courts.

In the context of the EU a national Supreme Court is no longer a court of last resort in the sense that it has the final power to interpret legal rules in significant areas of law. To the extent that there are EU laws, and this is true for constantly increasing areas, interpretation of national law has to be in accordance with EU law. As far as EU law is concerned the Court of Justice in Luxembourg has the exclusive power of interpretation.

It is therefore a legitimate question whether and to what extent national Supreme Courts in the European law system play a role that is different from other national courts’ role. Are they and, if the answer is yes, in what respect are they still “supreme”?

I will try to deal with this question in three different contexts. First, I will deal with the so-called Europeanization of law, the fact that national law is becoming more and more European, then I will turn to the constitutionalisation of law, the fact that fundamental rights are of growing importance also in the field of private law, and I would like to conclude with some thoughts about the cooperation among courts.

II. Europeanization of Law

A unified law remains unified only if the final power of interpretation lies with one court. The EU has developed an ingenious system striking a compromise between national sovereignty and the need for concentration of interpretative power. The national Supreme Courts have still the last word in deciding the case but before coming to a final decision they have to refer questions of EU law to the Court in Luxembourg for a preliminary ruling unless there is an acte clair. If they fail to do so, a party’s right to its statutory judge may be violated and the state may be held liable for damages.

In the pre-EU times in Austria there had been no state liability for Supreme Court decisions but only for lower court decisions and the competence for deciding cases involving state liability lay with the ordinary courts. Following the Köbler judgment (C-224/01) the state can now be liable for Supreme Court decisions too. These claims are not tried by ordinary courts but by the Constitutional Court.

A national judge and particularly a justice of a national Supreme Court therefore has to examine in any case whether the national law he has to apply is compatible with EU law. In Austriathis can be managed since each and every judge and justice has access to the relevant databases.

From my experience as an Austrian judge I can say that the relations with the Court in Luxembourg are mostly smooth and without grave disturbances. Nevertheless, there are a few difficulties the judiciary faces when dealing with EU law and dealing with EU law always means taking into account the judgments of the Court in Luxembourg.

I would like to mention just two of them. Sometimes difficulties are caused by the fact that some judgments of the Luxembourg Court raise more questions than give answers, as for instance in the Lindt Goldhase case. Second, it can happen that the national law lacks provisions that would be necessary to enable the national court to implement the judgment of the Luxembourg Court, as for instance in the Silhouette case.As regards rather vague judgments of the Luxembourg Court, it might be considered an advantage that broad discretion is left to the national court although one of the main objectives of the preliminary ruling procedure, to ensure that like cases involving EU law are decided alike, is hard to achieve if clear guidelines are wanting. As regards deficits of national law this is not the only case where national judges have to prove their creativity.

III. Constitutionalisation of law

Before the entry into force of the Lisbon Treaty and the EU Charter of Fundamental Rights, the European treaties only contained a rather limited number of express written rights which, apart from the fundamental freedoms, primarily concerned certain procedural and civic rights and the prohibition of discrimination. Consequently, the recognition of fundamental rights as part of EU law was mainly left to the Court of Justice in Luxembourg. From the early 1970s onwards, the Court developed an extensive case law on fundamental rights derived from the constitutional traditions common to the Member States and the international treaties for the protection of human rights, in particular the European Convention on Human Rights. The fundamental rights were elaborated on a case-by-case approach. This had the advantage of flexibility and allowed the Court to develop a “best solution” on the basis of a comparative analysis of different approaches in the Member States. The disadvantage was a lack of transparency and certainty. The Court has also been criticised for exceeding its competences by “inventing” new fundamental rights, as particularly for example in connection with the principle of non-discrimination. The best known is the Mangold case; a case concerning a German statutory provision which allowed for employees older than 52 to be given fixed-term employment without limitation on repetition.

The Court’s decision in Mangold is particularly controversial because the period prescribed for the implementation of Directive 2000/78/EC into domestic law had expired neither when the fixed-term employment contract was concluded nor when the decision was handed down. Nevertheless the Court found that the national provision, conflicting with Article 6 of Directive 2000/78/EC and the general principle of non-discrimination in respect of age, must be set aside.

Parallel to the development at the European level, national civil courts have started to take into account fundamental rights when applying national private law. Their sources were more or less detailed catalogues of fundamental rights in the relevant constitutions or – as in the case of Austria where no comprehensive catalogue exists – the European Convention on Human Rights which in Austria has the status of constitutional law. According to the so-called principle of interpretation in accordance with the Constitution (“verfassungskonforme Auslegung”) an interpretation has to be sought which does not contradict the Constitution.

The same holds true, mutatis mutandis, for European law. In all areas falling within the scope of EU law, national law has to be interpreted in accordance with EU law and, since EU law now comprises the EU Charter on Human Rights, in accordance with the Charter. As the Luxembourg Court stated in the Kücükdeveci case national courts must ensure the full effectiveness of the principle of non-discrimination on grounds of age which is codified in Art 21 para 1 of the Charter. That means that the national court must not apply a national provision which it considers to be incompatible with EU law.

When deciding a case the national court therefore has to ascertain first whether the national law which it has to apply falls within the scope of EU law. Second, the court has to interpret the national law in accordance with EU law and particularly in accordance with the principles codified in the EU Charter of Human Rights; so, for example, it is to be assumed that in labour law cases the principle of non-discrimination will play an important role. If, because the provision in question is clear and unambiguous, it cannot be understood in a sense which is not contrary to EU law the national court must decline to apply that provision. It depends on the national law whether the court has authority to ignore a provision it considers to be contrary to the Constitution unless the provision has first been declared unconstitutional by the Constitutional Court. In the Kücükdeveci case the Court stated that the national court is not compelled to make or not to make a reference to the Court for a preliminary ruling. It lies in the national court’s discretion whether it makes such a reference.

The Kücükdeveci judgment shows that the horizontal or third party effect (“Drittwirkung”) of fundamental rights codified in the Charter forms part of the acquis commun. It also shows that it is the task of the national judicial court to ensure that the values codified as fundamental rights permeate also the relationships between private parties.

Although it is not a new task for the national courts it is a challenge. It is quite clear that a general principle of non-discrimination leaves hardly room for the freedom of contract, the freedom to conclude or not to conclude a contract, to choose or not to choose a certain partner. The limitations and the true content of this principle remain to be defined by judicial decisions. Not only this fundamental right but all fundamental rights almost always imply a leeway in decision making.

A similarly important question will be whether the Court in Luxembourg will interpret the vague provisions on socio-economic rights of the Charter in a dynamic way thereby shifting power from Parliaments to the courts. In these areas there is a small borderline between law and politics as will be shown by the following case which was decided by the Danish Supreme Court.

In a small municipal hospital a woman was operated under full anaesthetic. After the surgery she was returned to the ward. 30 minutes later she was found unconscious. And she remained unconscious until she died 5 years later. The accident was not caused by negligence, but due to the fact that the hospital had no special unit for patients coming out of anaesthesia. Such a special unit would require additional staff. In the big hospitals in the Copenhagen the accident would not have occurred.

The court of appeal held the hospital liable for damages. The patients should not suffer because the hospital was understaffed and citizens should be entitled to the same treatment irrespective of where in Denmark they lived. But the Supreme Court came to the opposite result since liability would imply that the hospital might be held liable in cases where it was unable to give patients the optimal treatment due to the lack of economic resources. The court found that the question of allocation of funds to the hospitals was not a legal but a political and economic question. That should be left to the politicians since the courts have neither the expertise nor the mandate to step into the complicated puzzle of allocation of public funds.

The judgement was handed down in 1985. It might be an interesting question whether the case would be decided alike had the provisions of the Charter of Fundamental Rights to be taken into account. According to Art 35 of the Charter everyone has the right to benefit from medical treatment under the conditions established by national laws and practices.

In the area covered by the European Convention on Human Rights the national courts have to follow the rulings of the European Court of Human Rights as guidance. If they fail to do so and the losing party files a complaint with the European Court of Human Rights, the relevant State will be sentenced and may be ordered to pay damages.

In some cases the European Court of Human Rights has reached rather surprising results but in general the impact from Strasbourg has been positive. Sometimes it is useful that somebody looks over the shoulder of national courts.

The ultimate issue in all these cases is not really about what the principles are or should be; it is how to balance the competing principles, or, to put it another way, how the tension between two principles is to be resolved. It is often delicate to find a balance. On the one hand courts must be careful not to block for legislation in the socio-economic field or in the area of, for instance, protection of the environment although some may see the legislation as expropriation. On the other hand the courts have an obligation to defend the rights of a minority when such rights are infringed by the majority.

A possible way may be to make a distinction between new social and economic rights and fundamental rights like the right to life, the prohibition of torture, prohibition of slavery and forced labour, right to liberty and security. In the case of new social and economic rights the courts should leave a very considerable margin to the legislator. The reason is that such legislation always indicates a political decision on the distribution of wealth within society. It is a matter for Parliament, not for judges, to determine the best way in which limited resources should be spent by governments.

On the other hand close control by the courts may be relevant when for example legislation is passed to fight terrorism or other serious crime. Judges have the obligation to see to it that basic principles are respected.

IV. Cooperation among courts

The growing complexity in almost all areas of life has led to an equally growing importance of cooperation and team work. This is evident for scientific research; it is also evident for state authorities who have to meet the challenges caused by social developments and especially by migration. And it is also true for courts which have been used to work – as one might say – in “splendid isolation”. It is true on national level and it is also true on European level.

On European level the need for more cooperation among courts has led to the founding of networks. There are several networks; almost any type of courts and connected institutions has its own network. It is therefore quite natural that there are now initiatives to have more cooperation among networks; one is the initiative to establish a European Law Institute which has been started by academics. The European Law Institute shall also comprise law faculties and legal research institutions.

We will see which of these initiatives will be successful. Any such initiative has to overcome the fear that closer cooperation will diminish influence and importance of those who take part.

As concerns the Network of Presidents of the Supreme Judicial Courts of the EU there is common understanding that closer cooperation among its members will be desirable. The Network has already realised some projects to this end. There is, first, the Common Portal of the Network which provides access to the legal databases of the different states. It is connected with an automatic translation program. The Network also provides a basis for enquiries into national law. So, for example, on behalf of the French Cour de Cassation the Networkdistributed a questionnaire on legal aid among its members since France planned to reform its legal aid system. At the time being a questionnaire on expert opinions in civil and criminal proceedingsis being circulated. The Network facilitates also bilateral contacts. A few weeks ago our courtwas asked by the Czech Supreme Court whether we had rendered any decisions dealing with the term “known creditor” in the insolvency regulation. The Czech Supreme Court intended to make a reference for a preliminary ruling.

The Network facilities and personal contacts initiated and furthered by the Network are important steps towards a closer cooperation among European courts. I am convinced that in the future such cooperation will prove even more necessary.

V. Conclusion

To sum up, I would like to go back to the question formulated at the beginning of my speech. Are national Supreme Courts in the European law system still Supreme Courts?I think that the answer is yes. Although we have to refer questions of interpretation of EU law to the Court in Luxembourg our essential task has remained unchanged. And that is the task to safeguard legal certainty, legal uniformity and the development of the law. These tasks can only be fulfilled on the national level.

But we have to be aware of the fact that the new challenges -Europeanization and constitutionalisation of law– can be met only if we adhere to new methods. And one of the most important methods is more cooperation among courts as it is initiated and facilitated by the Network of Supreme Court Presidents.

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