Constitutional Courts, Preliminary Rulings and the 'New Form of Law': The Adjudication of the European Stability Mechanism

Abstract

n 2012 and 2013, we observed how the European Stability Mechanism (ESM) was adjudicated by “EU courts, plural”: a number of high courts of the Member States (among them “Kelsenian” constitutional courts as well as representatives of a more hybrid model of judicial review of constitutionality) and the European Court of Justice (CJEU) were seized by challenges to the mechanism. What attracted attention was the fact that only one court, the Supreme Court of Ireland, decided to submit a preliminary reference to the CJEU, while the other courts, as would appear from their judgments, did not even consider the option. This was a suboptimal example of judicial dialogue in the case of ESM adjudication.

There were three possible reasons for this course of events that could be identified. First, the courts of the Member States might have been protective of their own constitutional authority. Second, the time normally necessary for the delivery of a judgment of the CJEU in a preliminary ruling might have served as a deterrent. Third, the innovative legal character of the ESM might be too complex for the existing mechanism of judicial dialogue operating within the EU courts, plural.

This Article takes into account the new developments in the adjudication of the financial crisis. First, the fact that two more constitutional courts ruled on the ESM: the Austrian Verfassungsgerichtshof and the Polish Trybunal Konstytucyjny. Second, the recent decision of the German Federal Constitutional Court that, for the first time in its history, submitted a reference for a preliminary ruling to the CJEU in a case connected to the adjudication of the ESM is taken into consideration. In addition, the paper takes into account a broader image of legal innovation in the law of the Economic and Monetary Union (EMU) more precisely, and looks at the increased importance of the “new form of law” in devising measures to reform the EMU.

Keywords: European Stability Mechanism, judicial dialogue, constitutional court, preliminary ruling