Talking to Luxembourg: the Experience of the Constitutional Court of the Republic of Latvia
President of the Constitutional Court of the Republic of Latvia
Paper presented at the trilateral meeting of the Constitutional Courts of Latvia, Belgium and Czech Republic
Brno, 25 October 2016
I would like to thank, in my own name and also on behalf of the Constitutional Court of the Republic of Latvia, the Constitutional Court of the Czech Republic for their kind hospitality in organising this trilateral meeting. I would especially like to underline the careful thought that has obviously been given to the organisation of the substantive part of our meeting. The preparations for this presentation and particularly for the discussion scheduled for this afternoon gave me an opportunity to look at the practice and case-law of the Latvian Constitutional Court in a different light. In the following minutes I would like to share with you some of the insights I gained during this process.
I will start by addressing the question of whether there are any situations when the Constitutional Court of the Republic of Latvia might be required or might need to make a preliminary reference to the Court of Justice of the European Union. To clarify that point I will proceed to the normative regulation of the proceedings before the Constitutional Court and will highlight the limits of the Court’s competence as well as certain procedural challenges that would need to be taken into account when making a preliminary reference. I will then move on to describe the practical realities of the work of the Constitutional Court and its interaction with ordinary courts. I will conclude my presentation by sharing some thoughts on what the future of interaction with the CJEU holds for the Constitutional Court of the Republic of Latvia.
The EU and the Constitutional Court of the Republic of Latvia
At the outset, I need to make a confession that during more than 12 years of Latvia’s membership in the European Union the Court has never made a preliminary reference to the CJEU. However, in my opinion this does not mean that we have nothing to contribute to today’s discussion. Quite the opposite, I believe that this passivity might well serve to complete the illumination of the spectrum, at the other end of which we find our Belgian colleagues who have been described as seeming “rather comfortable with the procedure”.
So is the Constitutional Court of the Republic of Latvia uncomfortable with the preliminary ruling procedure? Is it ill-equipped to talk to the CJEU? Or perhaps it has not needed to do so (yet)? I would suggest that the answer lies in all of the above.
The Constitutional Court of the Republic of Latvia was established in 1996. The Law on the Constitutional Court, which is the primary source for the rules of the procedure of the Court, was drafted the same year, hence eight years prior to Latvia’s joining the European Union. After 2004 no changes to the Law have been made in connection with the joining of the European Union; in fact, the Law does not contain the words “European” or “Union” at all. Although the Parliament felt the need to amend the Law on Civil Procedure, the Law on Criminal Procedure and the Law on the Administrative Procedure to explicitly enable the respective courts to submit a preliminary reference, no such amendments were made to the Law on the Constitutional Court. Nevertheless, a specific law of 2007 recognising the jurisdiction of the (then) European Court of Justice authorises all Latvian courts to resort to a preliminary reference procedure.
The Constitutional Court of the Republic of Latvia is, however, “a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law”, therefore, should it be seized of a case involving a question concerning the interpretation of the Treaties or the validity and interpretation of acts of the EU, it would, according to Article 267(b) TFEU, be obliged to “bring that matter before the” CJEU. To determine whether EU law could become relevant for the Constitutional Court of the Republic of Latvia, I will now briefly describe the scope of the Court’s competence.
The Competence of the Constitutional Court
According to section 16 of the Law on the Constitutional Court and insofar as it might be relevant for the present discussion, the Constitutional Court of the Republic of Latvia adjudicates upon questions of a) the conformity of international agreements to which Latvia is a party with the Constitution; b) the conformity of “normative acts” (other than laws adopted by the Parliament and international treaties signed or ratified by Latvia) with norms (acts) with “a higher legal force”.
Since, as I mentioned before, the Law on the Constitutional Court does not mention the EU law, one needs to understand the hierarchy of legal norms applicable in the Latvian legal system and especially the place of EU law in that hierarchy. Could a provision of the EU law be understood as a “normative act”, the legality or constitutionality of which might be controlled by the Constitutional Court? Or could EU law be understood to be “a norm (act) with a higher legal force”, the compatibility with which could be the standard of review for the Constitutional Court?
As regards the Treaties, the Latvian position is rather clear: section 13 of the Law on International Treaties of the Republic of Latvia explicitly provides for the prevalence of the norms of international treaties over conflicting national laws. On the other hand, the Constitution prevails over international treaties (this implicitly derives from the fact that the Constitutional Court has the competence to review the compatibility of international treaties with the Constitution). Hence, one could easily fathom a situation where the Constitutional Court could be asked to review the compatibility of an EU treaty with the Constitution or the compatibility of a provision of national law with an EU treaty.
The situation is less obvious with regard to the hierarchical place of the secondary EU law. The legal norm that comes closest to offering a coherent theory in this respect is section 5(3) of the Law of Civil Procedure, which, in case there are relevant “legal norms of the European Union that are directly applicable in Latvia”, instructs the courts to apply Latvian law only insofar as such application is compatible with the EU law. Hence the “directly applicable” norms of EU law appear to have a higher legal force than Latvian laws.
Such an interpretation appears to be consistent with the case-law of the Constitutional Court, which has indicated (even more broadly) that “Latvian legal acts are to be interpreted in such a way as to avoid all contradictions with the Latvian obligations towards the European Union”. However, the very same sentence of the previously cited judgment concludes with an important caveat: “unless this is contrary to the basic principles included in the Constitution”. Therefore it is impossible to come to a straightforward conclusion about the place of EU law (primary law, secondary law with direct effect, secondary law without direct effect) in the hierarchy of legal norms applicable in the Latvian legal system.
The Constitutional Court of the Republic of Latvia exercises an ex post constitutional review (except for questions of the compatibility of international treaties with the Constitution, when a review prior to the ratification of the treaty is possible) after receiving a corresponding request from one of the authorised subjects. The Law on Constitutional Court authorises a wide range of public institutions to petition the Constitutional Court but a large majority of applications are submitted by individuals. Hence, for the Constitutional Court to be seized of a matter raising a question of the interpretation of the Treaties or the validity and interpretation of EU acts, the subject of constitutional review (or the Court itself) would be required to formulate a coherent theory with regard to the place of EU law in the Latvian hierarchy of legal norms. Such a situation has not yet happened in practice.
Procedure of the Constitutional Court
When a case involving the interpretation of an unclear norm of EU law or the possible invalidity of a clear norm of EU law will eventually reach the Constitutional Court, there will be some procedural obstacles to be addressed before a referral is made to the CJEU. For instance, the Law on Constitutional Court prescribes a rather strict time-schedule for examining a case. Even allowing for all the extensions that the law permits, the period from the moment application has been received at the Court to the final decision cannot exceed 15 months. The Court has never in its history exceeded this time-limit and is quite rightly proud of this fact. Given that the average ordinary preliminary ruling procedure in the CJEU lasts approximately sixteen months, there evidently is a potential for a conflict with the national judicial tradition. The CJEU has explained that “imposing a strict time-limit on the examination [of a domestic case] by the national courts cannot prevent the reference for a preliminary ruling”. Hence the Constitutional Court would be faced with a choice of either ignoring the requirements of the domestic law and its history of rather fast decision-making or finding another procedural solution.
A procedural solution that would need to be engaged has been incorporated in the very Law on the Constitutional Court, section 26(1) of which explicitly authorises the Court to decide upon procedural questions not covered by the Law or by the Rules of the Court. Since, as has been mentioned before, the Law on the Constitutional Court does not contain any provisions concerning the procedure for making a referral to the CJEU, it seems likely that the Court would consider itself authorised to decide on an appropriate procedure for such an occasion, including the suspension of the adjudication of the case and accordingly of the running of the time-limits.
Another feature of the proceedings before the Constitutional Court of the Republic of Latvia might help explain the fact that no preliminary references have to date been made by that Court. Namely, the requirement of using all other available and potentially effective remedies before bringing a claim to the Constitutional Court. In majority of cases the remedies to be used include ordinary courts, which tend to be rather active users of the preliminary reference scheme. Hence it is often the case that the EU law question is resolved before the case reaches the Constitutional Court (if it ever does).
An example of the triangular relationship between the Latvian ordinary courts, the Luxembourg court and the Constitutional Court is a recent judgment of the Constitutional Court in a case that concerned the amount of insurance compensation payable in cases of road traffic accidents. The case came to the Constitutional Court in part due to a reference made by the Civil Cases Department of the Supreme Court, which had doubts about the constitutionality of a legal provision (a paragraph of the Rules of the Cabinet of Ministers) which limited to 150 euros the liability of insurance companies with respect to non-pecuniary damage caused by the death in a traffic accident of close relatives. Since the legal provision in question was related to the transposition of two EU Directives, the Supreme Court had previously made a preliminary reference to the CJEU, which had given a reply, which made the Supreme Court believe that the specific liability limit was too low. After receiving a response from the CJEU, the Supreme Court once again suspended the proceedings before it and this time referred the case to the Constitutional Court, which found that the legal provision in question was not unconstitutional but was void because it was contrary to a law which had correctly transposed an EU Directive into the Latvian legal system.
The “Insurers’ case” I have described before would certainly be one example of a situation in which, should this case have directly reached the Constitutional Court, the latter might have felt compelled to make a preliminary reference to the CJEU. However, the Court has discussed or contemplated this possibility before, and I will now give some examples of such discussions.
Case-law of the Constitutional Court Concerning the Preliminary Reference
The first time an explicit request to make a referral to the (then) ECJ was received by the Constitutional Court in 2008 in the context of a case concerning money laundering. The applicant in that case doubted whether the impugned norm had correctly implemented Directive 2005/60/EC. The Constitutional Court rejected the request to make a referral because it considered that a decision on the question was not necessary to enable it to give judgment. The Court went on to declare the impugned norm to be unconstitutional.
In a later case that arose in the context of a state takeover of a private bank the Court at a preliminary stage asked for an opinion of an expert on EU law. The expert considered that the Court ought to refer a question to the CJEU. The Constitutional Court, however, first established that the impugned norm violated the constitutionally protected right to property and subsequently indicated that the Constitution provided for a higher standard of protection of the said right than Directive 77/91/EEC and that for this reason a referral to the CJEU was not necessary for giving the judgment.
Lastly, in the context of a case that dealt with the aftermath of the takeover of the bank that was discussed in the previously described judgment, both the Parliament and the Ombudsman invited the Court to consider the possibility of making a referral to the CJEU. The judgment of the Court pointed out that the Court in its case-law had already examined the norms of EU law that pertained to state support to failing credit institutions. Furthermore, several persons and institutions had indicated that the EU law in that area was clear and equivocal. Therefore the Court held that there was no need to make a preliminary reference. It is interesting to note that, while preparing for the examination of this case, the Constitutional Court of the Republic of Latvia entered into informal contacts with the Constitutional Court of Slovenia, which had in fact made a referral to the CJEU concerning a related question.
Outlook for the Future
I would like to conclude my presentation for the first half of the day with an attempt of a prognosis of what the future holds for the relationship between the Constitutional Court of the Republic of Latvia and the Luxembourg Court. In my opinion, the day of the first Latvian referral is not too distant. That is especially so, taking into account the ever growing field of application of the Fundamental Rights Charter, which, if the CJEU really meant what it held about “implementing Union law” in the Åkerberg Fransson decision, is going to grow exponentially. The Parliament or the Constitutional Court itself will need to adapt the procedure of the Constitutional Court to allow for a smooth making of Luxembourg referrals.
Before that day comes, I would once again express my gratitude to the Constitutional Court of the Czech Republic for this opportunity to benefit from the experience of our Belgian and Czech colleagues.
Thank you for your attention!
 Claes M. Luxembourg, Here We Come? Constitutional Courts and the Preliminary Reference Procedure. In: 16 German Law Journal No. 6 (2015), p. 1338.
 Section 51. The English translation of the Law is available: http://www.vvc.gov.lv/export/sites/default/docs/LRTA/Likumi/Civil_Procedure_Law.pdf.
 Section 39(3). The English translation of the Law is available: http://vvc.gov.lv/export/sites/default/docs/LRTA/Likumi/Criminal_Procedure_Law.pdf.
 Section 1041. The English translation of the Law is available: http://www.vvc.gov.lv/export/sites/default/docs/LRTA/Likumi/Administrative_Procedure_Law.doc.
 The Law on Recognition of the Jurisdiction of the European Court of Justice Pursuant to Article 35 of the Treaty on European Union.
 The Constitutional Court of the Republic of Latvia is clearly to be considered a judicial authority entitled to make a reference for a reliminary ruling: see the judgment of 30 June 1966 in Case 61/65, Vaassen Gobbels. This has also been recognized by the Constitutional Court as well; see the judgment of 28 May 2009 in case No. 2014-36-01, paragraph 14 (the judgment has not yet been translated into English).
 Available in English: http://vvc.gov.lv/export/sites/default/docs/LRTA/Likumi/On_International_Treaties_of_the_Republic_of_Latvia.doc.
 It is, however, unclear, if this means the same thing as “EU law norms with a direct effect”.
 Judgment of 17 January 2008, case No. 2007-11-03, paragraph 25.4. The judgment is available in English translation: http://www.satv.tiesa.gov.lv/wp-content/uploads/2007/05/2007-11-03_Spriedums_ENG.pdf
 Ibid. This caveat has been called “the Maastricht decision of the Constitutional Court”, referring to the famous decision of the German Constitutional Court. Žukova G. Eiropas Savienības tiesību piemērošana Latvijā [The Application of the Law of the European Union in Latvia]. Jurista vārds, 29.04.2008., Nr. 17 (522).
 Millet F. and Perlo N. The First Preliminary Reference of the French Constitutional Court to the CJEU: Révolution de Palais or Revolution in French Constitutional Law? In: 16 German Law Journal No. 6 (2015), p. 1488.
 Judgment of 22 June 2010 (Grand Chamber), cases C-188/10 and C-189/10, Melki and Abdeli, para. 56.
 As was implicitly done by the French Conseil Constitutionnel when it made its first reference to the CJEU. See Millet F. and Perlo N. The First Preliminary Reference of the French Constitutional Court to the CJEU: Révolution de Palais or Revolution in French Constitutional Law? In: 16 German Law Journal No. 6 (2015), pp. 1477-1478.
 Section 192(2) of the Law on Constitutional Court.
 According to the statistics of the CJEU, between 2008 and 2014 Latvian courts referred to Luxembourg on 37 occasions.
 Case No. 2014-06-03, judgment of 29 December 2014 (not yet available in English translation).
 72/166/EEC and 84/5/EEC.
 Judgment of 24 October 2013, Case C-277/12.
 Judgment of the Constitutional Court of 28 May 2009 in the case No. 2008-47-01 (English translation available: http://www.satv.tiesa.gov.lv/wp-content/uploads/2008/11/2008-47-01_Spriedums_ENG.pdf).
 Paragraph 15.2. of the judgment.
 Judgment of the Constitutional Court of 19 October 2011 in the case No. 2010-71-01 (English translation available: http://www.satv.tiesa.gov.lv/wp-content/uploads/2010/11/2010-71-01_Spriedums_ENG.pdf).
 Paragraph 24 of the judgment.
 Judgment of the Constitutional Court of 13 October 2015 in case No. 2014-36-01 (not yet available in English translation).
 Paragraph 14 of the judgment.
 CJEU Grand Chamber decision of 26 February 2013 in Case C‑617/10 Åkerberg Fransson.