New Issues, Theories and Methods
Judicial Review and Cooperation series
Edited by Bruno de Witte, Juan A. Mayoral, Urszula Jaremba, Marlene Wind and Karolina Podstawa
Chapter 3: The Simmenthal revolution revisited: what role for constitutional courts?
The reference to Simmenthal in this chapter’s title suggests that it will revisit the landmark case decided in the early days of the European Communities and scrutinize its implications for the position of constitutional courts in the national legal order. Accordingly, one might ask: what is new in this area given that the case is almost as old as the Union? This chapter will show that Simmenthal must be seen as the starting point of a series of judgments by the Court of Justice of the European Union (hereinafter the CJEU) in which the mandate for the everyday application of EU law by national courts was further developed. This has meant important, ongoing changes in the national legal systems, including in the role of constitutional courts and their relation with ordinary courts. Simmenthal is a significant example of the enormous influence of EU law on national courts, be they ordinary courts or constitutional courts. Under Simmenthal, ordinary courts acquired the power to set aside conflicting national law without waiting for a declaration of unconstitutionality by constitutional courts or a repeal of law by the parliaments. Immediate application of EU law placed constitutional courts at the margins of the everyday application of EU law, and gave a new dimension to the relation between courts in the Member States. These shifts in authority, court roles and influence are precisely what is investigated in this chapter. Two main tasks will be undertaken in this chapter. Firstly, a short introduction of the case will establish the necessary context for the subsequent parts of the discussion. Secondly, the refinement of the Simmenthal mandate in the case-law of the CJEU will be discussed. It will be emphasized that the Simmenthal case was the starting point of a judicial revolution directed by the CJEU and accepted by the national judiciary. The implications of this judicial revolution for constitutional courts will be analysed, and the disempowerment of the national constitutional courts will be explained, keeping in mind the division of powers within national legal orders. The chapter will approach Simmenthal from the point of view of constitutional courts and elaborate on the question of whether, in principle, they are bound by the Simmenthal obligation. More generally, it will also analyse their approach to the Simmenthal mandate.
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