Adjudicating Europe

Is the preliminary reference procedure equivalent to a constitutional reference before a Constitutional Court under national law?

The question appears even more important when dealing with national systems with “concentrated” (as opposed to decentralized) systems of judicial review of legislative action (the majority in Europe, by the way). After all, the preliminary reference is a remedy that works in a broader framework that allows judges (via Simmenthal) to set aside illegal provisions. Not so in constitutional references in those Member States, precisely designed to keep and safeguard the monopoly of the Constitutional Court in the review of legislation.

Apparently, they are “equivalent”. And therefore, no unjustified differences must be introduced in the detriment of those who make use of the Community (Union now, sorry) remedy.

This interesting conceptual point was cleared today in Transportes Urbanos. A minor, albeit important, Grand Chamber case.

May you all have a good read!

-Pescatorius