'Solange, chapter 3': Constitutional courts in Central Europe - Democracy - European Union

European Law Journal

Volumn 14, Issue 1, 2008, Pages 1-35

  Sadurski, Wojciech ^a,b  

^a EUROPEAN UNIVERSITY INSTITUTE   (Italy)

^b UNIVERSITY OF SYDNEY   (Australia)

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EID: 65349170069     PISSN: 13515993     EISSN: 14680386     Source Type: Journal    
DOI: 10.1111/j.1468-0386.2007.00400.x     Document Type: Article

References (161)

1. I need to emphasise that the description provided is extremely stylised and fails to record the subtleties and complexities of developments of the attitudes of various constitutional courts of the 'old Europe' towards the supremacy of EC/EU law. After Solange 1 and Solange 2, mentioned in the text above, the German Federal Constitutional Court adopted a number of other extremely important decisions, which can be seen as belonging to the same tendency, with some apparently departing from the position reached in Solange 2, in particular theMaastricht Treaty Case, 89 BVerfGE 155 (1993), where the German Court established that it would control observance by Community institutions of the Treaty-based limits to their powers, and the compatibility of Community law with the fundamentals of the German Constitution. This is all very well described in the literature (see, eg, B. de Witte, 'Direct Effect, Supremacy, and the Nature of Legal Order', in P. Craig and G. de Burca (eds), The Evolution of EU Law (Oxford University Press, 1999), and such an analysis would go beyond the scope of this article.
2. Judgment of 29 May 1974, 37 Entscheidungen des Bundesverfassungerichts 271.
3. Judgment of 22 October 1986, 73 Entscheidungen des Bundesverfassungerichts 339.
4. For instance, on several occasions, the French Conseil Constitutionnel reviewed the EC Treaties under the French Constitution, thus forcing France to amend its Constitution in 1992 and 1999; see its Maastricht and Amsterdam Treaties decisions, respectively, decisions of 9 April 1992, 92-308 DC and of 31 December 1997, 97-394 DC. (The analogy with Germany is weak, though, as the decisions of the French Conseil Constitutionnel were more like calls for constitutional amendments than strong objections to European legal supremacy; on the other hand, they were analogous in that they reasserted the role of the Conseil as a guardian of constitutionality vis-à-vis the EC/EU.) In Italy, the Corte costituzionale established in Frontini in 1973 (Frontini v Ministero delle Finanze, judgment of 27 December 1973) that fundamental rights are the limits to the transfers of sovereignty to the EC. This was reasserted in the Fragd ruling of 1989 (Spa Fragd v Amministrazione delle Finanze, judgment of 21 April 1989), where the court claimed that it could review particular rules of EC law under the fundamental standards of the Italian Constitution, and in particular its provisions on rights (though it has not exercised this power of scrutiny so far). See deWitte, n 1 supra, at 202, n 111. For a discussion of similar situations in Spain and Belgium, see ibid, at 204; for a discussion of the so-called Danish MaastrichtDecision see P. Craig and G. De Burca, EU Law: Text, Cases, and Materials (Oxford University Press, 3rd edn, 2003), at 312-313. In a summary description by de Witte, 'In most other countries too, the Constitution is still the uncontroverted summit of the pyramid of the sources of law, and Community law is reluctantly given a para-constitutional status at most', de Witte, n 1 supra, at 204 (footnote omitted).
5. For a prediction that they will, see, inter alia, Z. Kühn, 'The Application of European Law in the New Member States: Several (Early) Predictions', (2005) 6 German Law Journal 563, 572.
6. A terminological matter should perhaps be clarified from the outset: when talking about supremacy, I will be referring at times to EC law and at times to EU law (and sometimes, generically, to 'European' law, meaning EU/EC law, as will clearly be dictated by the context), but nothing special is indicated by the distinction. The use of 'EC law' is at times necessitated by the historical context, as it would be nonsensical to refer to the EU before its existence. But I will avoid the controversy of whether the principle of supremacy which has been long coined by the ECJ with respect to Community law, can also apply to EU law (that is, to the second and third pillar norms) with equal force. I will simply assume, arguendo, that it does (for a recent strong argument why this should be the case, see K. Lenaerts and T. Corthaut, 'Of Birds and Hedges: The Role of Primacy in Invoking Norms of EU Law', (2006) 31 European Law Review 287, 289-290), and will revisit the matter only when a particular decision discussed marginally here may have warranted the distinction between third-pillar rules and the norms of Community law, see n 89 unfra.
7. For a general study of the emergence and development of constitutional justice in CEE after the fall of Communism, see W. Sadurski, Rights Before Courts: A Study of Constitutional Courts in Postcommunist States of Central and Eastern Europe (Springer Scientific, 2005)
8. see also H. Schwartz, The Struggle for Constitutional Justice in Post-Communist Europe (University of Chicago Press, 2000) and R. Prochàzka, Mission Accomplished: On Founding Constitutional Adjudication in Central Europe (CEU Press, 2002).
9. On imitation as a source of legitimacy in Central European democratic transitions, see C. Offe, 'Designing Institutions in East European Transitions', in R. E. Goodin (ed), The Theory of Institutional Design (Cambridge University Press, 1996), 199, at 213-214.
10. W. Sadurski, 'The Role of the EU Charter of Rights in the Process of Enlargement', in G. A. Bermann and K. Pistor (eds), Law and Governance in an Enlarged European Union (Hart, 2004), 61, at 71-75.
11. J. Habermas, So, Why Does Europe Need a Constitution?, Robert Schuman Centre Policy Papers, Series on Constitutional Reform of the EU, 2001-02, at 7, available at http://www.iue.it/RSCAS/e-texts/ CR200102UK.pdf.
12. Sadurski, n 9 supra, at 76-80
13. see also A. Albi, EU Enlargement and the Constitutions of Central and Eastern Europe (Cambridge University Press, 2005), at 122-130.
14. For illuminating illustrations of the persistence of the sovereignty rhetoric in Czech political life, see J. Komarek, European Constitutional Pluralism and the European Arrest Warrant: Contrapunctual Principles in Disharmony, Jean Monnet Working Paper No 10/05, available at http://www.jeanmonnetprogram.org/papers/05/051001.html.
15. For further developments on this point, see W. Sadurski, 'Accession's Democracy Dividend: The Impact of the EU Enlargement upon Democracy in the New Member States of Central and Eastern Europe', (2004) 10 European Law Journal 371.
16. See, inter alia, the decisions referred to in the concluding section of this article.
17. The metaphor of chain novel as applied to judicial decisions is Dworkin's; see R. Dworkin, '"Natural" Law Revisited', (1982) 34 University of Florida Law Review 165.
18. Article 9, paras 2 and 3 of the Czech Constitution.
19. There is also a third aspect, which played a more marginal role in the judgment, where the court referred to democracy, by invoking the principle of stare decisis (or, as the court called it, the continuity of its own case-law); see Part A3 of the Decision discussed in this section of the article. In that Part, the court considered whether it is bound by its earlier decision which considered the relationship between production quotas and the principle of equality, but this precedent was found not to be operative in the present case.
20. Decision Pl ÚS 50/04, Part VI.
21. Part VI.
22. ibid.
23. Part A3.
24. Here is the text of this reference: 'the Constitutional Court cannot disregard the fact that several high courts of older Member States, including founding members, such as Italy (Case No 183/73, Frontini v Ministero delle Finanze, 27 December 1973, Constitutional Court; Case No 232/1989, Fragd v Amministrazione delle Finanze dello Stato, 21 April 1989, Constitutional Court) and Germany (Case No 2 BvR 197/83, Wünsche Handelsgesellschaft (Solange II), 22 October 1986, Federal Constitutional Court; Case Nos 2 BvR 2134 and 2159/92, Maastricht Treaty 1992 Constitutionality Case, 12 October 1993, Federal Constitutional Court), and later acceding Member States such as Ireland (Society for the Protection of Unborn Children (Ireland) Ltd v Grogan, 19 December 1989, Supreme Court and Attorney General v X, 5 March 1992) and Denmark (Case No I-361/1997, Carlsen and Others v Rasmussen, 6 April 1998, Supreme Court), have never entirely acquiesced in the doctrine of the absolute precedence of Community law over the entirety of constitutional law; first and foremost, they retained a certain reserve to interpret principles such as the democratic law-based state and the protection of fundamental rights': Part VI of the Decision.
25. Part VI.
26. ibid.
27. ibid.
28. ibid.
29. ibid.
30. ibid.
31. European Commission Regulation (EC) 1972/2003 of 10 November 2003 on transitional measures to be adopted in respect of trade in agricultural products on account of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia, [2003] OJ L293/3, as amended by Regulation (EC) 230/2004 of 11 February 2004, [2004] OJ L39/13 and Regulation (EC) 735/2004 of 20 April 2004, [2004] OJ L114/13; also Regulation (EC) 60/2004 of 14 January 2004 laying down transitional measures in the sugar sector by reason of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia, [2004] OJ L9/8.
32. See R. Uitz, 'EU Law and the Hungarian Constitutional Court: Lessons from the First Post-Accession Encounter', in W. Sadurski, J. Ziller and Karolina Zurek (eds), After Enlargement: Legal and Political Responses in Central and Eastern Europe (Robert Schuman Centre, 2006), 41, at 46.
33. According to Section 7(1) of the Surplus Act: '[t]his Act shall enter into force on the 45th day following its promulgation'. 'The 45 days were required because under the National Expenditure Act tax-payer obligations cannot apply before 45 days from promulgation': A. Sajó, 'Learning Co-operative Constitutionalism the Hard Way: The Hungarian Constitutional Court Shying Away from EU Supremacy', (2004) 2(3) Zeitschrift für Staats- und Europawissenschaften 351, 356.
34. Decision 17/2004 (V.25) AB.IV.1.
35. Part IV.4.
36. ibid.
37. Part V.
38. Part III.
39. n 29 supra.
40. n 29 supra.
41. Part III, numbers of paragraphs added.
42. Similarly Sajó, n 31 supra, at 364.
43. See, similarly, Uitz, n 30 supra, at 48.
44. I am grateful to Bruno de Witte for discussions on this point.
45. As Andras Sajó puts it, while the court 'apparently avoided a head on collision', the strategy adopted 'opens up the court to criticisms of judicial hypocrisy': Sajó, n 31 supra, at 368.
46. Zdenek Kühn's reading is even harsher: The Hungarian Court's decision exemplifies for him 'a clear danger that constitutional courts might ignore EU law and pursue their task of protecting national constitutions as if nothing had happened with Accession': Kühn, n 5 supra, at 574.
47. Part IV.
48. Constitutional Court Decision No 11/1992 of 5 March 1992, reproduced in L. Sólyom and G. Brunner (eds), Constitutional Judiciary in a New Democracy: The Hungarian Constitutional Court (University of Michigan Press, 2000), at 214-218.
49. Law of 4 November 1991 on the Right to Prosecute Serious Criminal Offences Committed Between 21 December 1944 and 2 May 1990 that Had not Been Prosecuted for Political Reasons; English translation published in (1994) 1 Journal of Constitutional Law in Eastern and Central Europe 129.
50. Solyom and Brunner, n 46 supra, at 219.
51. The legislature subsequently amended its initial law by suspending the statutes of limitations only with respect to crimes against humanity and war crimes. For a more detailed description of this legislative-judicial exchange, see Sadurski, n 7 supra, at 251-253, and R. Uitz, 'Constitutional Courts and the Past in Democratic Transition', in A. Czarnota, M. Krygier andW. Sadurski (eds), Rethinking the Rule of Law after Communism (CEU Press, 2005) 235, at 244-248.
52. This is my view, defended in Sadurski, n 7 supra, at 255258. For an excellent comment from a point of view of the US legal scholarship, see S. J. Schulhofer, comments in the symposium 'Dilemmas of Justice', (1992) 1:2 (Summer) East European Constitutional Review 17, 18.
53. See Decision 17/2004 (V.25) AB.Part IV, where this case-law is summarised and various citations to earlier cases are given. According to the practice of the Constitutional Court followed since the very beginning of its operation, the requirement of legal certainty is an indispensable element of the principle of a democratic state under the rule of law.
54. Part IV of the Decision.
55. Part IV.3 of the Decision.
56. Milk Quota Case, Decision No 410/2001, discussed by Kühn, n 5 supra, at 567-568.
57. Quoted in ibid, at 568.
58. ibid, at 566-567.
59. On the other hand, as Kühn has shown elsewhere, both in the Czech Republic and in Slovakia, EU law had been rarely 'brought into play' as an 'interpretational tool', and on balance, an 'anti-European approach' had prevailed prior to accession: Z. Kühn, 'Application of European Law in Central European Candidate Countries', (2003) 24(4) European Law Review (2003) 554.
60. Decision 30/1998 (VI.25) 25 June 1998 III.I, discussed in J. Volkai, The Application of the Europe Agreement and European Law in Hungary: The Judgment of an Activist Constitutional Court on Activist Notions, Harvard Jean Monnet Working Paper (1999), 8, at 9, available at http://www.JeanMonnetProgram.org/papers/99/990801.html
61. A. Sajó, 'Accession's Impact on Constitutionalism in the New Member States', in G. A. Bermann and K. Pistor (eds), Law and Governance in an Enlarged European Union (Oxford, 2004), 415, at 429.
62. Volkai, n 58 supra, at 31.
63. Uitz, n 30 supra, at 49.
64. Decision 30/1998 (VI.25).
65. Concluding section of Decision 30/1998. Article 2 provides, inter alia: '(1) The Republic of Hungary is an independent, democratic constitutional state. (2) In the Republic of Hungary supreme power is vested in the people, who exercise their sovereign rights directly and through elected representatives'.
66. Concluding section of Decision 30/1998.
67. This constitutional amendment, adopted in 2002, provided for the participation as a Member State of the EU by virtue of an international agreement (to be ratified by two-thirds of the Parliament) and for 'exercising certain constitutional powers jointly with other Member States'. It is significant, for the argument in the main text, that the constitutional drafters carefully and deliberately avoided the language of 'transfer' or 'surrender' of constitutional competencies. As Andras Sajó observed, the text of the amendment 'indicate[s] a desire to emphasise nationhood to the fullest extent possible'; see Sajó, n 58 supra, at 419-420.
68. See A. Harmathy, The Presentation of Hungarian Experiences, International Conference on Position of Constitutional Courts Following Integration into the European Union (Bled, Slovenia, 30 September-2 October 2004), available at http://www.us-rs.si/pcceu/ index.php?sv_path=589.
69. Uitz, n 30 supra, at 49.
70. ibid, at 52, footnote omitted.
71. Decision K 18/04.
72. As one Polish commentator observed, the tribunal's reasoning was 'based on fears' of 'losing sovereignty, or not retaining "enough" of it': K. Kowalik-Bańczyk, 'Should We Polish It Up? The Polish Constitutional Tribunal and the Idea of Supremacy of EU Law', (2005) 6 German Law Review 1355, 1365.
73. Part 6.
74. 'The Republic of Poland may, by virtue of international agreements, delegate to an international organisation or international institution the competence of organs of state authority in relation to certain matters.'
75. Part 7.
76. Part 8.
77. Part 11.
78. Part 14.
79. ibid.
80. Judgment of 11 May 2005, K 18/04, Principal Reasons for the Ruling, point 20.
81. ibid, point 27.
82. ibid, point 28.
83. See Decision 18/2004 (V.25) AB of the Hungarian Constitutional Court discussed in part III of this article below.
84. Articles 12 and 13 of the EC Treaty, referred to in Part 18 of Decision K 18/04.
85. See the challenges discussed in points 1-11 of the judgment.
86. See the challenge discussed in point 29 of the judgment.
87. A similar analysis, pointing to the tension between the reasoning and the outcome, could be carried out also with respect to another decision of the Constitutional Tribunal taken soon after accession, namely the one concerning the compatibility of the elections to the European Parliament with the Polish Constitution, Decision K 15/04 of 31 May 2004. The tribunal found nothing unconstitutional about granting voting rights for the European Parliament elections organised in Poland to EU citizens who were not Polish citizens, but on the road to this conclusion, it emphasised, inter alia, the very limited role of the European Parliament (Part III.2 and III.3 of the Decision) and the fact that the constituency of the European Parliament is an aggregate body composed of the nations of the Member States (Part III.3).
88. W. Sadurski, '"It All Comes Out In the End": Judicial Rhetorics and the Strategy of Reassurance', (1987) 7 Oxford Journal of Legal Studies 258.
89. Decision P 1/05 of 27 April 2005.
90. The Decision was triggered by a 'legal question' from a regional court as to whether the provision of the code of criminal procedure, implementing the European Arrest Warrant (EAW) Framework Decision was consistent with the express constitutional prohibition against the 'extradition' of Polish nationals. The tribunal stated that while the Polish legislator has a constitutional duty to implement framework decisions, this duty does not preclude constitutional scrutiny of the conformity of European secondary law with the Polish Constitution. In this case, the 'surrender' under the EAW rules was found by the tribunal to be equivalent to the concept of 'extradition' as used in the Constitution, and so the explicit constitutional ban on extradition prevailed over the statutory implementation of the EAW Framework Decision. At the same time, the tribunal suspended the effects of its decision for 18 months in order to give the legislator enough time to sort out the conflict, for instance by amending the Constitution.
91. A Polish commentator expressed an opinion that, in this decision, the tribunal 'implicitly accepted the supremacy of EU law over constitutional norms': Kowalik-Bańczyk, n 69 supra, at 1361. For an analysis of the 'Euro-friendliness' of this judgment by a Czech legal scholar, see Komarek, n 12 supra, at 10.
92. An additional distinguishing feature between the two decisions was that the decision on the EAW was made with reference to a rule of the 'third pillar'. The court could therefore have treated it as part of an ordinary international law treaty, without the special features of supremacy and direct effect, which concern (as the argument goes) only Community law (first pillar). In EU legal scholarship the distinctiveness of the status of third pillar rules is a contested issue (see De Witte, n 1 supra, at 184, n 24); for a position in favour of absolute supremacy applicable to all three pillars with equal stringency, see, recently, K. Lenaerts and T. Corthaut, 'Of Birds and Hedges: The Role of Primacy in Invoking Norms of EU Law', (2006) 31 European Law Review 287, 289-290; but in any event the tribunal did not exclude the supremacy of third pillar acts, but stated that it would not change anything since the operation of the principle of supremacy of European norms (of whatever pillar) is limited by the principle of protection of fundamental rights; see Part III.3.4 of the Decision.
93. Point 5.9 of the EAW Decision.
94. As always, the judicial rhetoric about an alleged impossibility of any other decision due to plain textual meaning of the constitutional provision has to be taken with a grain of salt. There were various options available to the tribunal in order to distinguish constitutional 'extradition' from surrender, as defined by the EAW; for example under the constitutionally mandated limits on constitutional rights based on the necessity to protect democracy, public security or public order (such an argument had actually been submitted to the tribunal during the proceedings - see Point 4.1 of Decision P 1/05), or as I would suggest (though I could find no traces of such an interpretation produced by anyone before the proceedings), on the basis of a purposive interpretation of the constitutional ban on extradition, namely that it was motivated by the fear that the extradition of Polish citizens could be used as a political weapon against the 'undesirables', but that when no such danger occurs, the reluctance to surrender Polish citizens to another country is unfounded. Whether such an interpretation is convincing is besides the point here; all that matters is that the tribunal, as always, faced a choice rather than being forced to pronounce the 'right answer' allegedly predetermined by the text of the Constitution.
95. M. Grzybowski, The Competence of the Constitutional Tribunal and the 2003 Treaty of Accession, International Conference, n 65 supra.
96. ibid.
97. A possibility of such interpretation is hinted at (though not necessarily endorsed) by an eminent Polish scholar, Stanislaw Biernat, in his critical comment on this judgment: S. Biernat, 'Glosa nr 2', (2005) 5(4) Kwartalnik Prawa Publicznego 185, 205.
98. Some Polish scholars and observers suggested such a distinction; see eg D. Leczykiewicz, 'Case Note', (2006) 43 Common Market Law Review 1181, 1187.
99. Uitz, n 30 supra, at 57.
100. Decision 18/2004 (V.25.) AB., Part II, para 1.
101. ibid, para 1.
102. ibid, Part II.1.1.
103. ibid, Part II.1.1.
104. The challenged amendments provided: 'Section 269 (1) Anyone who in front of a large public gathering provokes hatred or calls for committing a forcible act against any nation or any national, ethnic, racial or religious group, or against any group among the population, commits a felony and is to be punished by imprisonment for a period of up to three years. (2) Anyone who hurts human dignity in front of a large public gathering by disparaging or humiliating others on the basis of national, ethnic, racial or religious identity commits a misdemeanour and is to be punished by imprisonment for a period of up to two years' (emphases added). The italicised words were challenged by the President, and eventually found unconstitutional by the court.
105. Part III.3 of the judgment.
106. Part V.2 of the judgment.
107. Part V.2.3 of the judgment.
108. Recommendation No R (97) 20 of the Committee of Ministers of the Council of Europe.
109. Decision 18/2004, Part II.
110. A Hungarian legal scholar suggested that the opinion of the court in this decision may serve as a source of inspiration for the Hungarian delegation's position in the debates within the EU concerning the Framework Decision; see Uitz, n 30 supra, at 62.
111. Proposal for a Council Framework Decision on Combating Racism and Xenophobia, Commission of the European Communities (2001/0270 (CNS), 6, 28 November 2001).
112. On 15 July 1996, the Council adopted a Joint Action concerning action to combat racism and xenophobia: [1996] OJ L185/5.
113. The Joint Action leaves the Member States choice whether to incriminate these forms of conduct or to derogate from the principle of dual criminality.
114. Articles 3, 4 and 5.
115. Article 6.
116. Article 12.
117. Article 13.
118. Article 15.
119. Article 4(a).
120. Article 4(b) (emphasis added).
121. And the Explanatory Memorandum of the Council does not provide any further comment on this Article; see Proposal for a Council Framework Decision on Combating Racism and Xenophobia, COM/2001/0664 final - CNS 2001/0270, [2002] OJ C75E/269.
122. For an account of these developments, see Sadurski, n 7 supra, at 161-163.
123. Solyom and Brunner, n 46 supra, at 229.
124. Decision No 30/1992 (V.18) AB of 18 May 1992, reprinted in (1995) 2 East European Constitution Case Reports 8.
125. Decision 36/1994 (VI. 24) AB.
126. Decision 12/1999 (V.21) AB.
127. Decision 18/2000 (VI.6) AB.
128. For an excellent analysis, comparing the US and European approaches on restrictions of hate speech, see S. Douglas-Scot, 'The Hatefulness of Protected Speech: A Comparison of the American and European Approaches', (1999) 7 William &Mary Bill of Rights Journal 305. Douglas-Scot observes that 'controls on free speech long have been permitted in many European countries to curb incitement to race hatred and other undesirable motivations': Ibid, at 309 (footnote omitted).
129. Uitz, n 30 supra, at 62.
130. Maduro writes about 'the two different narratives on the question of ultimate authority developed by the European Court of Justice and national constitutional courts': M. Poiares Maduro, 'Contrapunctual Law: Europe's Constitutional Pluralism in Action', in N. Walker (ed), Sovereignty in Transition (Hart, 2003), 501, at 502.
131. K. J. Alter, 'The European Court's Political Power', (1996) 19 West European Politics 458, 459, quoted by De Witte, n 1 supra, at 193.
132. De Witte, n 1 supra, at 201.
133. Article I-6 of the proposed Treaty Establishing a Constitution for Europe provided: 'The Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the Member States'. In turn, the adoption of the Reform Treaty is to be accompanied by the Declaration of the Inter-Governmental Conference: "The Conference recalls that, in accordance with well settled case law of the EU Court of Justice, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law": Presidency Conclusions (20 July 2007), 11177/1/07, REV 1, CONCL 2.
134. Perhaps at this point I should state that, in this article, I have deliberately put to the side the issue of whether constitutional courts see themselves as 'courts' underArt 234 of the EC Treaty, for the purpose of referring preliminary questions to the ECJ. While this question - notoriously contested in the theory and practice of Western European constitutional courts - is an important one, so far CEE constitutional courts have left this question unanswered: The prevailing answer seems to be a tentative 'yes', but no practical consequences have followed from it at this point. See various papers by constitutional court judges at the conference Position of Constitutional Courts Following Integration into the European Union, n 65 supra, remarks by Jiri Mucha (Czech Constitutional Court), Jan Mazak (Slovakia), Mirjam Skrk (Slovenia); in turn Marian Grzybowski (Poland) was much more sceptical about the Constitutional Tribunal's duties under Art 234, while the judges of other CEE constitutional courts did not tackle this issue at all.
135. See, eg, Maduro, n 127 supra
136. N. Walker, 'Late Sovereignty in the European Union', in Walker, n 127 supra, 3-32
137. N. MacCormick, Questioning Sovereignty (Oxford University Press, 1999)
138. M. Kumm, 'The Jurisprudence of Constitutional Conflict: Constitutional Supremacy in Europe before and after the Constitutional Treaty', (2005) 11 European Law Journal 262.
139. See, similarly, Kumm, n 132 supra, at 294.
140. My preference for the second approach may have purely auto-biographical sources: I am no EU law expert, while I have been researching constitutional developments within CEE post-communist states, with a particular focus on constitutional courts; see Sadurski, n 7 supra.
141. See, similarly, Kumm, n 132 supra, at 281.
142. L. Favoreu, La politique saisie par le droit (Economica, 1998), at 30.
143. Sadurski, n 7 supra.
144. More about it in ibid, at 27-40.
145. Decision of 23 March 2006.
146. Decision of 19 January 2006.
147. Decision of 26 October 2005.
148. Decision of 19 April 2006.
149. I am grateful to Professor Jiri Priban for helpful comments on this point.
150. O. Szantova, Opposition Treaty Continues, Radio Praha (12 March 2001), available at http://www.radio.cz/en/article/10973.
151. For a detailed description, see Z. Kühn and J. Kysela, 'Nomination of Constitutional Justices in Post-Communist Countries: Trial, Error, Conflict in the Czech Republic', (2006) 2 European Constitutional Law Review 183, 196-205.
152. ibid, at 198.
153. Pl. ÚS 18/06.
154. Brozova remains Supreme Court Chairwoman - Constitutional Court, ČeskéNoviny.Cz (12 September 2006), available at http://www.ceskenoviny.cz/news/index_view.php?id=209019.
155. Klaus considers Constitutional Court ruling on Brozova Erroneous, available at http://www.ceskenoviny.cz/news/index_view.php?id=209019.
156. V. Klaus, 'Freedom and its Enemies: Problems of Re-Establishing Freedom and Democracy in the European Context', (2005) 25(2) Economic Affairs 46, 47.
157. I am grateful to Mr Jan Komarek for his comment on that and other points related to the Czech Constitutional Court.
158. I am grateful to Dr Renata Uitz for comments on this point; it should not be inferred that some, or all, of the opinions described in this paragraph are actually shared by her.
159. See C. Boulanger, 'Europeanisation through Judicial Activism? The Hungarian Constitutional Court's Legitimacy and the "Return to Europe"', in W. Sadurski, A. Czarnota and M. Krygier (eds), Spreading Democracy and the Rule of Law? The Impact of EU Enlargement on the Rule of Law, Democracy and Constitutionalism in Post-Communist Legal Orders (Springer, 2006), at 275-276
160. see also Prochàzka, n 7 supra, at 17-20.
161. See, eg, B. Ackerman, 'The Rise of World Constitutionalism', (1997) 83 Virginia Law Review 771, 776.