Adjudicating Europe

The ECJ has handed its judgment in the Melki case today, although only in French for the time being. The judgment can be accessed here.

In general terms, the ECJ rules out the Cour de Cassation’s interpretation of the “priority question of constitutionality” and gives a clear hint that the referring court was getting it wrong. Although the ECJ is very careful to grant the referring court the last say as to the “correct” interpretation of French law, it is obvious that the ECJ was fully aware of what was going on.

The “correct” interpretation of the French procedure before the Conseil Constitutionnel, however, appears to be compatible with EU Law. This is, of course, the important aspect of the case, and it should come as a true relief for France’s agents, who must have been at true odds to prove that the actual system was quite respectful with the ECJ’s case-law. Finally the ECJ has been sensitive to the fact that the French judge is free to pose the reference to the ECJ at any time, even at the same time that the priority question is raised before the Conseil. The fact that the French judge can make use of interim measures and set provisionally aside the contested national law in the course of the proceedings has also had weight in the ECJ’s reasoning.

However, there is a poisoned section in the judgment.

Paragraphs 54 to 56 pose an interesting point, and not exactly in favour of the French system. The ECJ says quite openly that when the query before a national judge concerns the compatibility with the Constitution and the Treaties of a national Law that transposes imperative provisions of a Directive, the Foto-Frost monopoly in favour of the ECJ might be at stake. Therefore, in those circumstances, it is up to the ECJ to first and foremost state what the answer to the (EU) validity issue is. This is, as some of you might remember, the situation surrounding the Arcelor case, coming, not coincidentally, from the French Conseil d’Etat.

One last dose of poison. At the very end of paragraph 56 the ECJ adds that, in a circumstance as the one just raised, “l’encadrement dans un délai strict de la durée d’examen par les juridictions nationales ne saurait faire échec au renvoi préjudicial relatif à la validité de la directive en cause”.

Clear and sound: the fact that the Conseil has a brief three-month time-period to solve the case is NOT an excuse for refusing to make a reference.

Not such a “sympathique” judgment after all.

-Pescatorius