The Czech Ultra Vires Revolution: Isolated Accident or Omen of Judicial Armageddon?

This piece was originally posted on the Verfassungsblog and is reposted here with thanks.

The Czech Constitutional Court’s recent decision to declare a previous CJEU judgment ultra vires has raised considerable concern in the EU legal community. Jan Komarek on this blog accused the CCC of “playing with matches”. Arthur Dyevre analyzes the situation from a game theory and international relations perspective:  


On the face of things, the CCC’s judgment, by declaring an EU act, namely a ruling of the Court of Justice, ultra vires, constitutes a momentous and unprecedented display of judicial defiance. To my knowledge, no domestic court has ever taken this step before in a final judgment on the merits; and certainly not in so explicit a manner. In recounting the background of the case and the sequence of events that led to the CCC’s decision, Jan Komarek points to a number of intriguing aspects of the case. One, which has already been highlighted in connection with the Melki case, is the difficulty for the CJEU to avoid alienating domestic judges when it is dragged into domestic judicial politics by way of the preliminary ruling mechanism. Here, however, my primary interest is in the significance and implications of the CCC’s decision for the EU multi-level legal system. In a non-hierarchical court system, where courts at the upper echelon do not have the power to strike down the decisions of courts at the lower level, judicial cooperation appears to be essential to the effectiveness of the higher-level law. So, by defying the authority of the Court of Justice in such blatant fashion, the CCC’s judgment may be viewed as striking a terrible blow to the authority of EU law. Doomsayers may see it as the first event in a chain reaction that will ultimately bring down the whole constitutional edifice of EU law. From now on, every domestic judge will assume that she can safely ignore EU law whenever she sees fit. Still, while there is no gainsaying that judicial defiance at domestic level may potentially raise major problems, I would nonetheless suggest, borrowing insights from game theory and international relations, that this judgment is more likely to remain an isolated event. An all-out war with the CJEU is not in the long-term strategic interest of any domestic court. Hence there is a fairly good chance that, one way or another, the CCC will soon come to its senses and will repudiate a decision that seems to be driven by anger rather than by reason. If it wants to remain a player in the multi-level judicial game, the CCC should take a closer look at the German Federal Constitutional Court (GFCC), which has so far proved a more thoughtful strategic player in its relations with the CJEU.

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Playing With Matches: The Czech Constitutional Court’s Ultra Vires Revolution

Jan Komarek

This post was originally posted on the Verfassungsblog and is reposted here with thanks.

When the Czech Constitutional Court (CCC) declared the CJEU’s judgment in C-399/09 Landtová “ultra vires”, one of my colleagues commented: “giving Solange into their hands was like to let children play with matches”. I am afraid it is the adequate description of the decision, which is difficult to explain in legal terms and which in my view has much more to do with the psychology of the Court and its individual judges, although other domestic actors, the Supreme Administrative Court and the Government, also played an important role.

I suspect many readers of this blog will have to check the CJEU’s website in order to know what Landtová case was about. From the point of view of EU law it was an ordinary case, decided by the Fourth Chamber, concerning the interpretation of Regulation No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (“the Regulation”). Only at a closer look one could reveal an interesting dimension to it: the Czech Supreme Administrative Court (the SAC) was challenging the CCC’s case law concerning special pension increments that the CCC ordered to be paid to the Czech citizens, who were affected by the dissolution of Czechoslovakia in 1992.

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