THE FIRST PRELIMINARY QUESTIONS TO THE COURT OF JUSTICE OF THE EUROPEAN UNION REFERRED BY ITALIAN CORTE COSTITUZIONALE, SPANISH TRIBUNAL CONSTITUCIONAL, AND FRENCH CONSEIL CONSTITUTIONNEL

Abstract

The article concerns the issue of constitutional courts’ preliminary references to the CJ. So far only a few centralized constitutional courts have accepted raising the preliminary reference to the CJ. Three of them are courts which initially had denied such possibility, but later changed their minds: Italian Corte Costitutionale (the Italian Constitutional Court; further: ICC); Spanish Tribunal Constitucional (the Spanish Constitutional Tribunal, further: SCT) and French Conseil Constitutionell (the French Constitutional Council; further: FCC). The first reference addressed to the ECJ by ICC came after more than a decade of explicit denial of having the status of a court in the meaning of the current Article 267(3) TFUE. The change of the ICC’s position towards the preliminary ruling procedure was based on the juxtaposition of two ways in which a constitutional review proceeding may be initiated in the Italian legal system: via incidentale and via principale. The SCT denied its status as a court in the meaning of Article 267(3) TFUE till 2011. The change of the SCT’s position, in contrast to the ICC case was not followed by any in-depth argumentation favouring such “judicial volt”. The FCC for the first time referred to the CJ in 2013. The profound change in the FCC’s attitude towards EU law was triggered by the introduction of Priority Preliminary Question on Constitutionality proceedings (QPC) in 2008.