Constitutional Court of Slovakia

1. Introduction

The general role of the preliminary ruling is to ensure uniform application of the European Union law in all Member States and guarantee that the law of the European Union will be applied in same terms in any Member State.
In a case where the national judge needs assistance in European Law interpretation he or she should file a preliminary reference to the Court of Justice where he or she will seek for answers on questions important for the final judgment. “If the national court does not submit the preliminary ruling in case where it is necessary for establishing a legal framework for the final judgment, acts in contrary with its constitutional duty, that guarantees a right for fair protection of rights and legitimate interests of participants as it is covered by § 1 Slovak Civil Procedure Code…”
“There is a new intriguing frontier for judicial dialogue: the potential beginning of an era of cooperation between the European Court of Justice and some constitutional courts. Recently, the Belgian, Austrian, Lithuanian, and-lastly-Italian Constitutional Courts accepted to raise the preliminary reference to the ECJ. Constitutional Courts are progressively accepting the cooperative mechanism set up by art. 234 of the European Community Treaty.”
Constitutional rights related to submitting preliminary references to the Court of justice will be presented through judgments of the Constitutional court of Slovak republic. As the first decision we would like to mention judgment of the Constitution court of Slovak republic that considers the right for judicial protection  in accordance with art. 46 (1) of the Constitution of Slovak republic.  

According to the Constitutional court: „...it is in the content of fundamental right for the judicial protection belongs also the right to decide a case according legal act that is based in the valid legal order of Slovak republic or in such international agreements ratified by Slovak republic and published according to law. At the same time everyone has the right for a constitutional interpretation of legal act applied within his case. This implies that real guarantee of judicial protection is only provided if the facts are considered using constitutionally interpreted valid and effective legal act.”


2. II. ÚS 90/05


The Slovak constitutional court was already confronted in 2005 with the topic of breaching the obligation to refer by general court.  The participants filed a complaint claiming the right to judicial protection, according to art. 46 (1) of Constitution of Slovak republic and the right to fair trial by independent and impartial court in accordance with art. 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, that were breached by the Regional court in Bratislava as a first instance court and also by the Supreme Court as an appeal court. These courts did not refer a preliminary reference to the Court of Justice during the procedure, and so did not ask for the interpretation of the European Union law, so according to the opinion of the complainant they did not decide according to a relevant legal act. The Constitutional court refused this complaint because of the lack of jurisdiction, but stated that, breaching the duty to refer should be considered as a reason for an extraordinary appeal in accordance with the § 237 Slovak Civil Procedure Code. The Constitutional court stated: “In this case the judicial protection according to art. 46 (1) of the Slovak Constitution and art. 6 of the Convention is provided by the general courts using available legal remedies, that at the same time can be considered as effective legal remedies against the alleged violation of their mentioned fundamental right. The Constitutional court found out that the complainant did not file an extraordinary appeal against the appeal court decision. “The subject matter of the case was the violation of the right to judicial protection for the reason, that the court did not apply and interpret the European Union law and did not use the possibility to refer a preliminary ruling to the Court of Justice according to art. 267 TFEU. Although the decision of the Constitutional court stated, that the complainant did not expressly mention the article 48 (1) of the Slovak constitution about the right to a law-assigned judge, argued in the reasoning of the complaint by the fact that the regional court and subsequently the Supreme Court did not use the discretion to submit a preliminary reference the Court of Justice for interpretation under art. 267 TFEU. Constitutional court had in this case the opportunity to give his opinion on the issue, if not referring to the Court of Justice under the terms of art. 267 TFEU and the related case law of the Court of Justice can under certain circumstances give a conclusion about non-lawful judge and also the conclusion about not-properly court deciding. The constitutional court did not answer these questions in this case; he firstly dealt with this issue in his judgment No. IV. ÚS 206/08.


3. IV. ÚS 206/08


The question of discretion or obligation to refer the preliminary reference to the Court of Justice by himself (i.e. Constitutional Court) has settled the Constitutional court in his judgment so that he admitted the obligation to submit a preliminary reference to the Court of Justice as follows:”… may in the exercise of its power get into a situation, where the duty to refer will be applicable also on him.”  
In above mentioned judgment, the Constitutional court addressed the question whether in a particular case a party may rely on it’s constitutionally protected right to refer a preliminary reference by national court according to art.267 TFEU. “If such a court, as a last instance court, fails to refer a preliminary reference to the Court of Justice, opens the issue of the constitutionality of the procedure with regard to art. 46 (1) (4) and art. 48 (1)  of Slovak Constitution. It should be noted also the duty in accordance to § 1 with connection to § 109 (1) c) Slovak Civil Procedure Code to ensure equitable protection of rights and legitimate interests of the parties.”
Constitutional court at the same time held with regard to the court of last instance in Slovak republic:”Examination has to be done with respect to particular dispute or legal case, whether the court against whose decision there is no allowed judicial remedy, respecting Slovak Civil Procedure Code, its system of judicial remedies and also the jurisprudence of Supreme Court of Slovak republic dealing with the judicial remedies including extraordinary appeal. This implies that according to valid Slovak legal order the court of last instance is the Supreme Court or Constitutional court.” Some authors did not agree with this interpretation of the meaning of last instance court. “On the contrary, the court of last instance that according to the circumstances specified in the art. 234 TEC (now art. 267 TFEU) and relevant case law has an obligation to submit a preliminary reference to the Court of Justice, can be also the district court or regional court according to legal conditions of Slovak republic, in cases when there is no judicial remedy allowed: for example cases of inadmissibility of appeal according to § 202 Civil Procedure Code or cases of inadmissibility of extraordinary appeal according to § 236 to 239 Civil Procedure Code.” 
The Constitutional court also raised the issue of extraordinary appeal because of law-assigned judge and inappropriately seated court in the proceeding where the court has the obligation to refer the preliminary reference to the Court of Justice. The Constitutional court while deciding about this issue refers to the jurisprudence of German constitutional court that already recognized the Court of Justice as a law-assigned judge. Consequently the Constitutional court concluded

“if the judge of Court of Justice did not contribute in the interpretation of European Union law in the dispute before the national court, although this interpretation was essential to decide the case, than the national court was in this part of proceeding inappropriately seated court. This states also the complainant in the complaint when saying that the judgment was not issued by law-assigned judge. … Beyond the abovementioned the Constitutional court states that to support the conclusions of this decision it is important to have in mind the role of Supreme Court in unification of general courts jurisprudence, which lies in the further guidance where they should ask the Court of Justice to decide about the preliminary reference.” 


The indicated above shows opinion of the Constitutional Court on the question of law-assigned judge. “It is important that, in this decision the Constitutional Court remained on that, that in a subsystem of the judiciary is to fulfill the duty (and possibility) to submit the preliminary reference primarily responsible the Supreme Court of the Slovak republic, which has such an obligation by law.”  The law, from which the obligation arises, is the Statute on Courts, while the obligation should also apply to fulfill the duty to refer the preliminary reference according to art. 267 TFEU.
It should be noted that the amendment of Civil Procedure Code, effective from 15. October 2008 extended the enumeration of resolution, which cannot be appealed (§ 202 (3)). Here belong also the resolution by which was rejected the motion for interruption of the proceeding according to § 109 (2) c). Unlike the legal framework valid in the time of this decision of Constitutional Court, the participant does not have the opportunity to appeal against such a decision. This amendment is fully reflecting the judgment of Court of Justice in the case Cartesio .
It is necessary to mention to the question of law-assigned judge that in case if there is an obligation to submit a preliminary reference, the law-assigned judge is the Court of Justice. “The fact that the Court of Justice is the law-assigned judge is possible to derive from art. 220, 267 and 292 TEC.  By interpretations of these articles we will reach the conclusion, that the definite and authoritative interpretation of European Union law belongs solely to the Court of Justice.”

By: Daniela Ježová, attorney at law in Slovakia