Electronic copy available at: http://ssrn.com/abstract=2557759

EFFET UTILE

Luboš Tichý, Michael Potacs,

Tomáš Dumbrovský (eds.)

Centre for Comparative Law

of the Faculty of LawCharles University in Prague

Prague 2014

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Electronic copy available at: http://ssrn.com/abstract=2557759

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TABLE OF CONTENTSFOREWORD 5

CHAPTER ITHE CONCEPT OF EFFET UTILE 9

Origins, Scope and Meaning of Eff et UtileJean-Louis Bergel 9

Eff et Utile as a Method of InterpretationMichael Potacs and Claudia Mayer 17

CHAPTER IIEFFET UTILE IN EUROPEAN UNION PRACTICE 29

Eff et Utile and the Four FreedomsRudolf Streinz 29

Eff et Utile as an Arbitrary Instrument of the CJEU? Diff erences between its Application in Public and Private LawLuboš Tichý 39

Eff et Utile and Citizenship of the UnionMatthias Niedobitek 55

Eff et Utile in Competition LawWulf-Henning Roth 73

CHAPTER IIIEFFET UTILE IN THE MEMBER STATES PRACTICES 93

Eff et Utile as a Unifying Doctrine in a Constitutionally Pluralist EuropeTomáš Dumbrovský 93

Eff et Utile in the Enforcement of EU Law by National JudiciariesJiří Zemánek 115

CHAPTER IVEFFET UTILE BEYOND THE EUROPEAN UNION 119

Eff et Utile in Corporate Law beyond the European UnionFriedrich Rüffl er and Julia Told 129

Eff et Utile – Towards a General Principle of Law?Robert Rebhahn 147

LIST OF CONTRIBUTORS 167

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EFFET UTILE AS A UNIFYING DOCTRINE IN A CONSTITUTIONALLY PLURALIST EUROPE

Tomáš Dumbrovský

IntroductionWhy is eff et utile a problematic idea? It would seem, at fi rst sight, that our actions

always aim at results and to think about a  legal provision that did not aim to be eff ective seems odd. Nonetheless, eff et utile is a problematic idea for two interrelated reasons. First, much as we care about results, we also care about the process to achieve these results. Second, to focus only on the eff ect might lead to neglecting the legitimate interests of others without good reason. To put it diff erently, the eff et utile of one legal provision might endanger the eff et utile of another legal provision.

Th ese two reasons may be illustrated by the following example from criminal law. If a prosecutor obtains hard evidence proving a suspect’s guilt beyond reasonable doubt, he still cannot convict the suspect if the evidence was obtained illegally. In other words, we cannot give full eff ect to the relevant provision of the criminal code that says somebody who commits a murder shall be sentenced. Although this provision of the criminal code is clear, we still give the process primacy over the result.

Th e issue in our example can also be constructed diff erently to highlight the second reason for eff et utile being a problematic instrument. Th e fact that illegally obtained evidence is not to be taken into account signifi es not only that we care about the process as much as we care about the result, but under the term “procedural rights of a defendant” we subsume a wide range of substantive rights of defendants. We may say that in such a situation a clash occurs between the eff et utile of the criminal law provision that murderers shall be sentenced and the eff et utile of criminal and constitutional law provisions that nobody is to be convicted but through the due process of law.

In his contribution to this volume, Jean-Louis Bergel outlines various ways in which we deal with such a confl ict of the eff et utile of two provisions within one legal order. Th e clash of the eff et utile of two provisions appears more problematic when we deal with two provisions that are parts of diff erent and autonomous legal orders, as is the case in the relationship between European Union law and a Member State’s constitutional law, or the European Convention on Human Rights and a State party’s

CHAPTER IIIEFFET UTILE IN THE MEMBER STATES PRACTICES

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constitutional law. Th ese situations are close to the one that Jean-Louis Bergel deals with in the case of treaties. Yet, they diff er in a signifi cant way: both the EU Treaties and the Convention have been constitutionalized, and we are in the situation that on the territory of each EU Member State three legal orders and their respective courts operate. To aff ord eff et utile to a provision of one legal order might lead to neglecting a legally signifi cant interest of a subject of another legal order. In the case of the EU-Member State relationship, we will often face a situation of a clash of the eff et utile of two provisions – one protecting the interest of the Union (an EU citizen, a company, a third party national) and one protecting the interest of the Member State (a citizen or a company). However, if this is true, and we have eff et utile on both sides of the equation, mathematics would advise us to cancel the eff et utile on both sides as one eff et utile neutralizes the other. What we are left with is a proportionality test. Th at is, to balance these interests; for interests are variables, while eff et utile is a constant in such a situation.

While at fi rst sight eff et utile was an obvious part of our action (we act in order to achieve results), at a second glance we end up with eff et utile being an irrelevant category. And yet neither of these two extremes seems to be the case.

I. Eff et utile and the enforceability problemTridimas in his General principles of EU Law writes: “[O]ne of the key features of

judicial constitution building at Community level has been the derivation from the general principles of primacy and direct eff ect of a specifi c duty on national courts to provide full and eff ective protection of Community rights”.1 In a similar way we may conceptualize the two-decade-long eff ort of the Czech Constitutional Court to derive from the national constitution a specifi c duty of the Czech general courts to provide full and eff ective protection of constitutional rights.

In this eff ort, the Czech Constitutional Court clarifi ed two interrelated issues: the extent to which the decisions of the Constitutional Court bind the general courts; and the extent to which the general courts are obliged to interpret provisions of general law 2 in the light of provisions of constitutional law.

Th e fi rst issue, which occupied the highest Czech judicial institutions for most of the 1990s, was in fact a struggle between the Constitutional Court and the Supreme Court on the question of who is the fi nal arbiter within the Czech legal order. At the heart of this struggle was the question of whether the decisions of the Constitutional Court carry a precedential impact. In Article 89 para 2, the Constitution only stipulates that “[e]nforceable decisions of the Constitutional Court are binding on all authorities and persons.” While the Constitutional Court repeatedly declared an obligation of the Supreme Court to respect its case law, the Supreme Court opposed

1 Tridimas, T., Th e General principles of EU Law, Oxford 2006, 421.2 A category of laws having lower than constitutional status within the Czech legal system.

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such an “absolute” binding force of the Constitutional Court’s decisions. Th e Court acknowledged the problem in a decision of 1998: “the binding force of Constitutional Court judgments which, in the present state of the law and in spite of the fact that it represents the sine qua non condition of the constitutional judiciary, brings no small amount of diffi culties in its wake”.3 While the Court asserted “cassation” binding force, it left the question of a “precedential” binding force of its decisions open for further discussion. Th e general courts eventually accepted the unconditional “cassation” binding force.4 In 2011, the Constitutional Court reviewed the discussion. It summed up that both the general highest courts (the Supreme Court and the Supreme Administrative Court) had accepted the unconditional “cassation” binding force and that a consensus had been reached on the functioning of the “precedential” binding force: while the “cassation” binding force is unconditional, within the tenets of the “precedential” binding force, “there is a possibility for a general court to (not) refl ect the legal opinions of the Constitutional Court when the general court in good faith outlines a dissenting reasoning and hence starts a constitutional dialogue with the Constitutional Court…”.5

Th e Czech Constitutional Court’s critique of an “exalted formalism” practised by the general courts represents the second round of the Constitutional Court’s eff ort to assert the eff ect of fundamental rights within the area of general law. Th is “exalted formalism”, according to the Constitutional Court, rested in a strict adherence by the general courts to a textual interpretation of the provisions of general law. Various constitutional provisions on fundamental rights, the Constitutional Court repeatedly held, nonetheless oblige the general courts to search for the purpose and sense of the provisions of general law.6 In its view, the general courts should interpret provisions of general law in the light of constitutional provisions, especially those aff ording rights to individuals.7 In an opinion of 2009, the Constitutional Court went as far as to oblige

3 Czech Constitutional Court, II.ÚS 425/97 [1998] published as N 42/10 SbNU 285, paras 6-8.4 Cf. inter alia decisions of the Czech Supreme Administrative Court, 6 Ads 62/2003 [2008] and the

Czech Supreme Court, 30 Cdo 610/2012 [2013].5 Czech Constitutional Court, IV.ÚS 1642/11 [2011] published as N 191/63 SbNU 219, para 21.6 See i.a. Pl. ÚS 21/96 [1997] published as 63/1997 Coll.; Pl. ÚS 19/98 [1999] published as 38/1999

Coll.; I. ÚS 2232/07 [2010] published as N 119/57 SbNU 467 (where the Court held that “a general court is not bound by the textual meaning of a statute absolutely; it may and shall diverge from [the textual meaning of the provision] if the purpose of the statute, history of its origin, systemic coherence, or a principle rooted in the constitutionally-conforming legal order understood as a value system require so… Fundamental rights and freedoms function within the area of general law as regulative ideas…” Ibid. at part IV., para 1-2).

7 In 2006 the Czech Constitutional Court held: “Th e Constitutional Court has repeatedly emphasized the duty of general courts to interpret individual provisions of procedural law from the point of view of purpose and sense of the constitutionally guaranteed fundamental rights and freedoms, which “radiate” through the entire legal order”. I. ÚS 287/05 [2006] published as N 121/41 SbNU 515, part III, para 4. For the genesis of the concept of radiation adapted from the German doctrine of Ausstrahlung [more or less correctly captured in the above cited decision I. ÚS 2232/07 (n. 6 above)] and its misinterpretation by the Czech Constitutional Court (as well as the CJEU) in the area of EU law, see Tichý, L.,

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a general court to give full eff ect to the fundamental right of freedom to contract by interpreting, from accompanying evidence, the fairly clear wording of a private contract and the respective provisions of the Civil Code in a way that allowed the original will of the parties to lead to the intended eff ect.8

A comparison between the use of the eff et utile argument by the CJEU in its interaction with national courts,9 captured in the contributions in Chapters II and III in this volume, and the use of similar arguments by the Czech Constitutional Court towards general courts 10 reveals certain similarities. Th e two courts use legal provisions over which their jurisdiction is undeniable to permeate another set of laws (Czech general law or a MS legal order) over which their jurisdiction is disputable in order to “restore the sense” of legal relations they are asked to adjudicate on; or in other words to rule inapplicable the provisions of the other set of laws which obstruct the eff ectiveness of the provisions in their jurisdiction. Th e eff ectiveness of a legal provision is thus often endangered by separation of a right/obligation from the tools for its enforcement. Th is means not only that the court which grants a right or imposes an obligation must rely on other courts to enforce its judgment, but more importantly that a court that is competent to enforce the judgment might lack procedural competences to do so.11 Th is is more obvious in the case of EU rights and obligations, where substantive provisions are part of one legal order and procedural provisions belong mostly to another.12 In such a situation, eff et utile then works as an argument to enlarge the

Dumbrovský, T., Between Two Legal Orders: A Relativist Doctrine for a Member State Constitutional Court?, in H. Koch, K. Hagel-Sørensen, U. Haltern, J. H. H. Weiler (eds.) Europe. Th e New Legal Realism. Essays in Honour of Hjalte Rasmussen, Copenhagen 2010, 757.

8 Czech Constitutional Court, IV. ÚS 128/06 [2009] published as N 235/55 SbNU 267 (the Court held that “the text of a contract is but an early stage in asserting the meaning of the contract, which the parties have wished to establish through their actions. If the will of the parties aimed at diff erent meaning and if the parties are successful in clarifying this meaning in the process of evaluation of facts and legal questions, such mutual will of the parties to the contract shall precede the textual interpretation of the contract.”). Cf. also decisions of the Czech Constitutional Court I. ÚS 331/98 [2000] published as N 86/18 SbNU 233; I. ÚS 436/05 [2008] published as N 129/50 SbNU 131.

9 See i.a. Case 6/64 Costa v ENEL [1964] ECR 585; Case 9/70 Grad [1970] ECR 825; Case 41/74 Van Duyn [1974] ECR 13337; Case 106/77 Simmenthal [1978] ECR 629; Joined cases C-6/90 and C-9/90 Francovich and Bonifaci v Italy [1991] ECR I-5357; Case C-200/02 Zhu and Chen v Secretary of State for the Home Department [2004] ECR I-9925; Case C-34/09 Zambrano [2011] ECR I-1177; and others.

10 Pl. ÚS 21/96 (n. 6 above); Pl. ÚS 19/98 (n. 6 above); I. ÚS 287/05 (n. 7 above); I. ÚS 2232/07 (n. 6 above); I. ÚS 331/98 (n. 8 above); I. ÚS 436/05 (n. 8 above); IV. ÚS 128/06 (n. 8 above); and others.

11 See more on the “procedural autonomy” problem in the contribution by Jiří Zemánek to this volume.12 Th is problem arises from the fact that the EU lacks its own enforcement apparatus in most of the areas

of its competences. (Rare but important exceptions can be found in competition law as well as in the monetary policy of Eurozone countries). Most of the EU constitutional issues are therefore concerned with constructing an alternative to direct enforcement: the principles of sincere cooperation, trust, or for that matter, eff et utile. For an excellent analysis of the centrality of cooperation based on “liberal fi delity” in the EU in comparison with the U.S. and German federal systems, see Halberstam, D. Of Power and Responsibility: Th e Political Morality of Federal Systems, Virginia Law Review, 2009, 731.

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procedural competences of a national court to make it able to enforce these rights and obligations. I will call this an enforceability problem.

An increased emphasis on eff et utile can be seen in courts operating in the European constitutional space, namely those separated from general national judiciary systems organized in a basically holistic and self-suffi cient manner with relatively clear jurisdictions and hierarchical dependencies: national constitutional courts, the CJEU, and the European Court of Human Rights (ECtHR). What happens to the eff et utile doctrines of these courts representing diff erent legal orders when they engage in mutual interactions?

I inquire into two recent cases. Th e fi rst one, Landtová-Slovak Pensions,13 shows the interactions among the CJEU, a national constitutional court, and a national high general court. Th e second case, Centro Europa,14 then presents still rather rare interactions among all three actors in the European constitutional space, the CJEU, the ECtHR, and a national constitutional court. It demonstrates the use of eff et utile by the ECtHR.

I argue that the way to resolve the enforceability problem and the puzzle of confl icting provisions of multiple legal orders should be sought in constructing the eff et utile of governance in the European constitutional space. Such composite eff et utile would present a tool for offi cials and institutions to interpret the legal provisions of overlapping legal orders – the EU, the ECHR, Member States – in such a way that leads to the best possible result benefi tting all legal orders involved. For reasons of space, my aim is simply to put forward the idea of composite eff et utile and to point to some of the positive results this approach can bring.

II. CJEU, a national constitutional court, and a national general court: the Landtová-Slovak Pensions saga

Th is case is an example of how the “constitutional” courts (the CJEU and the Czech Constitutional Court) of two legal orders involved in attempting to give full eff ect to fundamental constitutional provisions 15 within their jurisdictions ended up with no eff ect of either of those provisions. Let me fi rst summarize the evolution of the case, which resulted in an unprecedented decision by the Czech Constitutional Court to explicitly deny any eff ect to a judgment of the CJEU on the grounds that it was ultra vires.

A similar idea was put forward by Robert Schütze, who distinguishes between dual federalism, which from the point of view of our analysis can be successful only if each level of government disposes of procedural tools to enforce its orders, and cooperative federalism, which overcomes the enforceability problem with increased cooperation between the levels of government. Schütze, R. From Dual to Cooperative Federalism: Th e Changing Structure of European Law, New York 2009.

13 Case C-399/09 Marie Landtová v Česká správa socialního zabezpečení [2011] ECR I-5573; Czech Constitutional Court, Pl. ÚS 5/12 Slovak Pension XVII [2012] N 24/64 SbNU 237.

14 Centro Europa 7 S.R.L. and Di Stefano v. Italy, Application No. 38433/09 [2012] ECHR 974.15 With a necessary simplifi cation, the matter involved EU and Czech constitutional provisions on equal

treatment with opposite eff ects.

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Since 2003, the Czech Constitutional Court has repeatedly ruled that Czech citizens with Slovak pensions resulting from work in the common Czechoslovak state are discriminated against in comparison with Czech citizens receiving Czech pensions for the same period.16 In its view, the Czech Social Security Authority (CSSA) was obliged to mitigate this discrimination by topping up pensions (in the form of a supplement) paid by the Slovak Social Security Authority to Czech citizens so that the overall pension became what it would have been if the person entitled had worked for an employer based in the Czech part of Czechoslovakia; a solution, the Czech Supreme Administrative Court has consistently opposed.17

Th e problem arose after the dissolution of the Czech and Slovak Federal Republic (CSFR). In the form of an international treaty, the two succeeding states, the Czech Republic and the Slovak Republic, agreed to divide the fi nancial burden of paying pensions. Th e Czech Republic and Slovakia signed an Agreement on Social Security on 29 October 1992, in which they agreed on the distribution of the fi nancial burden of current and future pensions to persons entitled for the period they worked in the common state according to the location of the employer at the time of the CSFR dissolution (Article 20 para 1).18 Th is solution has led to some unreasonable results. For example, an entitled person might have worked all his life in the Czech part of the CSFR for an employer based in the Slovak part of the CSFR, without being aware of the consequences for his future. Th e Slovak Republic pays him a pension disregarding whether he is a Czech or Slovak citizen or where he resides. Due to economic and policy diff erences between the states, the pensions diff er, with Czech pensions currently being relatively higher. In other words, Czech citizens with Slovak pensions are relatively poorer than Czech citizens with Czech pensions. According to the Czech Constitutional Court, this creates unreasonable discrimination against Czech citizens with Slovak pensions.19 To remedy this unconstitutional treatment, the Court opined

16 For the fi rst decision on this matter, see Czech Constitutional Court, II. ÚS 405/02 Slovak Pensions I [2003] published as N 80/30 SbNU 245. To be sure, in the fi rst cases on this matter, the Constitutional Court focused on the question of discrimination and whether such discrimination is warranted (whether there are “objective” and “reasonable” grounds for such discrimination to sustain the constitutional review). A concrete solution, consisting in an obligation on the Czech Social Security Authority to pay a supplement to Czech citizens with their pensions paid by Slovakia, came later.

17 Th e Constitutional Court consolidated its case law on Slovak Pensions in the full Court decision Pl. ÚS 4/06 Slovak Pensions V [2007] published as N 54/44 SbNU 665, in which the Constitutional Court sanctioned the controversial idea of a supplement (constituted as obiter dicta already in its decision III. ÚS 252/04 Slovak Pensions III [2005] published as N 16/36 SbNU 173, part II, para 15), despite this supplement having no grounds in statutory law.

18 Agreement on Social Security of 29 October 1992. Available in Czech at: http://www.mpsv.cz/fi les/clanky/1542/smlouva_slovensko.pdf (last accessed on 20 Sept. 2013) (hereinafter the 1992 Czech-Slovak Agreement).

19 Art. 30 para 1 of the Czech Charter of Fundamental Rights and Freedoms reads: “Citizens have the right to adequate material security in old age…” in connection with Art. 1 para 1, which reads: “All people are… equal in their… rights.”

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that the Czech Social Security Administration was obliged to top up the pensions provided by the Slovak Republic to the level which a person would be entitled to if he had worked for an employer with its registered offi ce in the Czech part of the CSFR at the time of the dissolution of the common state.20

After the accession of the Czech Republic to the European Union, EU law brought a new dimension to this issue. Regulation 1408/71 on the application of social security schemes requires equal treatment between persons moving within the Union and residing in the territory of one of the Member States and the nationals of that State.21 Th e regulation supersedes bilateral agreements between Member States with several, often historically rooted, exemptions, one of them being Article 20 of the 1992 Czech-Slovak Agreement specifying the employer’s registered offi ce as the decisive factor for determining which state is responsible for pensions.

Th e CSSA opined that the EU regulation, which explicitly sanctions the 1992 Czech-Slovak Agreement, precludes it from paying a supplement to Czech nationals with Slovak pensions as required by the Czech Constitutional Court’s case law, as this would be in confl ict with the equal treatment clause of the EU regulation. A Ms. Landtová sought a remedy from an administrative court. On appeal, the Czech Supreme Administrative Court fi led a preliminary question with the CJEU asking about the compliance of the supplement with Regulation 1408/71 and the EU constitutional principle of non-discrimination.22

In Landtová v Česká správa sociálního zabezpečení, the CJEU held that the case law of the Czech Constitutional Court entitling Czechs with Slovak pensions to a supplement was indeed discriminatory.23 Th e Czech Supreme Administrative Court soon after ruled that the judgment of the Czech Constitutional Court was non-applicable and denied the plaintiff the supplement.24 In another case concerning Slovak pensions, the court clarifi ed that the judgment of the CJEU was authoritative and had to be followed instead of the Constitutional Court’s case law. It was up to the Czech Constitutional Court, the court continued, recalling the Constitutional Court’s established case law on the

20 Slovak Pensions III (n. 17 above), part II, para 15.21 Art. 3 para 1 of the Regulation 1408/71 on the application of social security schemes to employed persons

and their families moving within the Community. OJ L 149/2 (hereinafter Regulation 1408/71).22 Czech Supreme Administrative Court, 3 Ads 130/2008-107 [2011].23 Landtová (n. 13 above). For a preliminary academic reaction before the issue escalated with the decision of

the Czech Constitutional Court in Slovak Pensions XVII (n. 13 above) into open confl ict, see Pomahač, R., Soudní dvůr EU: Diskriminační podmínka pobytu v důchodovém pojištění, Právní rozhledy, 2012, 640; Kantořík, P., Ukončí zákon č. 428/2011 Sb. letitý spor o československé důchody?, Právní rozhledy, 2012, 254; Komárek, J., Slovenské důchody: druhá „válka soudů“ před Soudním dvorem EU, Soudní rozhledy, 2011, 388; Křepelka, F., Českoslovenští důchodci v pasti práva Evropské unie, Časopis pro právní vědu a praxi, 2011, 131.

24 Czech Supreme Administrative Court, 3 Ads 130/2008 [2011]. Th e court argued that the Constitutional Court itself acted ultra vires when, before the CJEU judgment, it interpreted provisions of EU law on its own despite the fact that the matter was neither acte clair not acte éclairé and therefore the Slovak Pensions case law of the Constitutional Court lacks precedential binding force. Ibid. at para 71.

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relationship between EU law and the Czech constitutional order, and especially its ultra vires doctrine, to decide on the constitutionality and applicability of the CJEU decision.25

Subsequently, the Czech Parliament enacted a law proscribing the supplementing of Slovak pensions, mentioning the CJEU decision as its rationale 26 Th e Constitutional Court was soon confronted with this development.27 For the fi rst time since it had formulated its ultra vires doctrine, the Constitutional Court ruled that an organ of the European Union had overstepped the competences conferred upon it by the Czech Republic and had acted ultra vires. As a result, the Constitutional Court refused to aff ord any legal eff ect to the interpretation of the EU law by the CJEU in the Landtová case and held it inapplicable.28 Th e saga did not end here as the Supreme Administrative Court submitted another preliminary question to the CJEU on the matter (although in a diff erent case), asking a quite dangerous question: whether EU law precludes a Member State’s supreme court from being bound by a decision of the Member State’s constitutional court that is not in compliance with EU law as interpreted by the CJEU.29 All actors, from the CJEU, to the Czech Government, to the Czech Constitutional Court must have felt relieved when the Government, acting through the Czech Social Security Authority, settled the matter with the plaintiff and paid her the supplement retroactively.30 During the summer of 2013, the Czech Parliament amended the pensions law to provide explicitly for the supplement to Slovak pensions. Th e Amendment abandons any reference to nationality or residence and grants the entitlement to anybody who receives a Czech pension and simultaneously receives a Slovak pension for his work in the CSFR.31 Th is solution basically entitles the same group of people who would be entitled to the supplement if the nationality requirement were retained.

I will look into the eff et utile of the EU and Czech legal provisions aff ected individually. First, I focus on the eff et utile of the EU provision. Th e CJEU did not

25 Czech Supreme Administrative Court, 6 Ads 52/2009 [2011] 100.26 Sec. 106a of Law No. 428/2011 Coll. 27 Slovak Pensions XVII (n. 13 above), part VII, para 22.28 Ibid. Král, R., Otazníky nad posledním nálezem Ústavního soudu ČR tý kajícího se tzv. Slovenský ch

důchodů, Jurisprudence, 2012, 28; Komárek, J., Czech Constitutional Court Playing with Matches: the Czech Constitutional Court Declares a Judgment of the Court of Justice of the EU Ultra Vires; Judgment of 31 January 2012, Pl. ÚS 5/12, Slovak Pensions XVII, European Constitutional Law Review, 2012, 323.

29 Decision of the Supreme Administrative Court, 6 Ads 18/2012 – 82 [2012]; available in Czech at: http://www.nssoud.cz/fi les/SOUDNI_VYKON/2012/0018_6Ads_12_20120510085654_prevedeno.pdf (the decision includes an in-depth reasoning on the preliminary questions submitted).

30 Consequently, the proceeding before the Supreme Administrative Court was terminated and the preliminary question withdrawn (OJ C 255, 2013, 57). Zbíral, R., Nuclear War between the Court of Justice and Czech Constitutional Court (hopefully) averted, Verfassungsblog on Matters Constitutional, 1 January 203, available at: http://www.verfassungsblog.de/en/czech-constitutional-court-war-averted/#.UrZbjCiQkqg.

31 Sec. 106a to Sec. 106c of the Law No. 155/1995 Coll. as amended by Law No. 274/2013 Coll. (eff ective from 1 December 2013).

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suffi ciently examine possibilities for a solution mutually benefi cial for both the legal orders involved. Especially the question of discrimination was assessed without properly taking into account its purpose. Advocate General Cruz Villalón rightly pointed out that the non-discrimination principle is not absolute. Th e requirement of nationality might be sustained if “the diff erence in treatment [was] justifi ed by objective and reasonable grounds.” 32 However, the Czech Government did not argue any such grounds and so the Court did not deal with this question. In Slovak Pensions XVII, the Constitutional Court clarifi ed that the requirement for the supplement is (and has always been) Czech nationality, and not residence in the Czech Republic.33 I will therefore focus on the nationality requirement only. Th e purpose of the non-discrimination principle, or equal treatment in our case, is that a nationality requirement would create an obstacle to the free movement of persons. However, in my view, the solution adopted by the Czech Constitutional Court does not infringe upon the free movement of persons.34 In fact, I argue that the supplement stimulates free movement.

Under the current state of integration, it is undeniable that a Member State has a right to set the pensions for work done in its territory.35 Th e non-discrimination principle requires that all EU citizens under the same circumstances receive the same pensions as the nationals of that Member State. Turning aside from the 1992 Czech-Slovak Agreement and the exemption from the EU regulation, consider a simpler system in which a Member State decides to pay a supplement to each of its nationals who receive lower pensions due to the fact that they have worked part or all of their lives in another Member State that pays lower pensions. Imagine a simplifi ed scenario in which for 10 years of averagely-paid work in Germany a person is entitled to a pension of € 500 a month, while for the same job and length of time in the Czech Republic he is entitled to € 200 a month, and to € 700 a month if he worked in Sweden. A German citizen who has worked his entire life in Germany will receive a pension of € 2000 (4 x € 500) after 40 years of work. A Czech citizen who has worked his whole life in Germany also receives € 2000 a month, as does a Swedish citizen. A German citizen who has worked 10 years in Germany and 30 years in the Czech Republic receives a pension of € 1100 a month (1 x €5 00 + 3 x € 200). In this scenario, the German government supplements pensions up to the national level so that a German citizen who has worked 10 years in Germany and 30 years in the Czech Republic will receive a pension of € 2000 a month (1 x € 500 + 3 x € 200 + € 900 supplement). A German citizen who has worked

32 Landtová (n. 13 above), Opinion of AG Cruz Villalón, para 45. 33 Slovak Pensions XVII (n. 13 above), part VII, para 23. 34 Most of the doctrine focused instead on the relationship between the 1992 Czech-Slovak Agreement

and Reg. 1408/71. Král, R., Questioning the Recent Challenge of the Czech Constitutional Court to the ECJ, European Public Law, 2013, 271; Pítrová, L., Th e Judgment of the Czech Constitutional Court in the „Slovak Pensions“ Case and its Possible Consequences (In Light of the Fortiter In Re Suaviter In Modo Principle), Th e Lawyer Quarterly, 2013, 86.

35 For the same conclusion, see Pítrová (n. 34 above), 91.

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10 years in Sweden and 30 years in Germany receives a pension of € 2200 a month (1 x € 700 + 3 x € 500). Th is example shows that a German citizen is motivated to work in any country in the European Union: if he works in a country with lower pensions, Germany will supplement his pension up to the amount of German pensions; if he works in a country with higher pensions, he will have a higher pension than if he had worked in Germany. Moreover, any EU citizen working in Germany will receive the same pension as a German citizen having worked in Germany.

In sum, a law entitling a German citizen to a supplement does not create an obstacle to free movement; in fact, the opposite is true – it facilitates free movement. Of course, there may be some discriminatory eff ects of such a law: a Czech citizen who has worked her entire life in the Czech Republic and retires to Germany receives a lower pension than a German citizen who followed the same career and receives more than double the pension. However, the EU law does not cover such eff ects. It is for the Member State to evaluate whether such discrimination exceeds the national (or internal) constitutional threshold. Under EU law, there is nothing to prevent a Member State from providing a supplement to a pension only to its citizens who are receiving a pension from another Member State. Th e caveat of the Regulation is that it is the German state that provides a pension for work done in its territory and that in this respect it does not discriminate against non-German EU citizens. And this condition is fulfi lled in our scenario – every EU citizen who has worked in Germany will receive the same pension as a German national who has worked in Germany. Regarding diff erent treatment of pensioners (not workers), it is extremely unlikely that any provision of the EU legal order requires that a pensioner residing in Germany should receive the same pension as a German national regardless of where he worked or simply because he worked in the same other Member State as a German national. Germany is not responsible for such pensions and does not pay a pension to German nationals for such work abroad. As a result of its internal social policy, it gives a supplement to its pensioners not because they worked abroad, but because they are worse off than their fellow citizens. Under the EU constitutional principle of non-discrimination, the eff ects of such a supplement must be evaluated in connection with the purpose of the non-discrimination principle. Th e discriminatory eff ects envisioned above are, however, disconnected from the purpose of the EU non-discrimination principle, because the eff ect of the supplement has no potential to hinder the free movement of persons.36

In order to fully appreciate that the discriminatory eff ect in our case is unsubstantiated, we may consider a remedy to such discrimination. If a Member State wanted to keep

36 Although some would argue that the current CJEU citizenship case law dealing with discrimination based on nationality has abandoned a connection to free movement, I must disagree. Even in the cases where no cross-border movement has occurred, like Zambrano, the CJEU has worked with the idea that a Member State measure would preclude free movement had the EU citizen decided to exercise it. In other words, the sense of discrimination based on nationality has remained connected to an actual or potential detriment to free movement.

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the supplement and not discriminate against anyone, then it would have to give the supplement to any EU national who receives a lower pension than a national who worked his entire life in his home State. Th at is, Germany would have to pay the supplement, for instance, to a Spaniard who worked all his life in Portugal, which would surely be absurd. An easier solution would be to abolish the supplement. However, the supplement may be an important social policy. Moreover, it may be mandated by the national constitution. Th is was indeed the opinion of the Czech Constitutional Court.

Returning to the 1992 Czech-Slovak Agreement, while for the EU dimension of the case the Agreement, as I have shown, was of little relevance 37 and has somewhat obscured the problem, for the Czech constitutional dimension of the case the Agreement, or rather its historical roots, was crucial. A person who had worked in Czechoslovakia could legitimately expect that he would receive the same pension as any other person for the same work regardless of where or for whom he had worked in this single state. Th e 1992 Czech-Slovak Agreement and the diff erent social and economic development of the two succeeding states created an unfortunate situation where a Czech citizen receives a diff erent pension to that of a fellow citizen for the same work for no fault of his own. Whether this is mere bad luck or whether this situation reaches the constitutional level of discriminatory treatment is up to the Czech Constitutional Court to judge and the legislature to oppose.38

37 Th e vast majority of scholars would not agree, as they see the crucial point as being that the Czech-Slovak Agreement is listed in part A rather than part B of Annex III to Reg. 1408/71, and according to Art 3 para 1 of the Reg. only agreements listed in part B of the Annex can provide for a diff erentiated treatment of certain categories of people. In other words, the Czech-Slovak Agreement is not exempted from the non-discrimination principle. Komárek (n. 28 above); Král (n. 28 above); Pítrová (n. 34 above); Král (n. 34 above); Zbíral, R., Czech Constitutional Court, judgment of 31 January 2012, Pl. ÚS 5/12. – A Legal revolution or negligible episode? Court of Justice decision proclaimed ultra vires, Common Market Law Review, 2012, 1475. My point is, however, diff erent. Th e CJEU, instead of formalistically applying its non-discrimination principle should have considered how the institution of supplement developed by the Czech Constitutional Court had threatened free movement. Only Král (n. 28 above and n. 34 above) puts forward concrete arguments in this regard (non-Czechoslovak EU citizens like Hungarians, Germans, Poles who worked in Czechoslovakia and are entitled to Slovak pensions are discriminated against based on their nationality, while the situation of Slovaks in the same position is exempted from EU law for its intra-state dimension). My argumentation above, however, is not intended to give a defi nite answer as to whether or not these categories of EU citizens are discriminated against from the EU law point of view in this specifi c case, but to show that the CJEU took a wrong approach to the issue, threatening the eff et utile of the non-discriminatory principle. Th e CJEU should have concluded that as a general rule, an institution of a supplement is non-discriminatory because it does not even potentially hinder free movement. Only in the next step, should the CJEU have considered the historic specifi city of the case. Had the CJEU considered the Slovak pensions issue an exemption from the generally allowed supplement scheme, and historically rooted and not aff ecting free movement, and had the CJEU been aware of the importance of the issue from the Czech Constitution point of view, it could have opted for a more balanced approach to the case. Of course, the Czech Republic would have to plead such points fi rst.

38 For an outline of a substantive solution, see Tichý, Dumbrovský (n. 7 above), and for its application to

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Th e confl ict between the CJEU and the Czech Constitutional Court was but collateral damage for the Czech executive and legislature in removing the supplement,39 while the Constitutional Court’s view that the solution of the 1992 Czech-Slovak Agreement was arbitrary and constituted discrimination against Czechs with Slovak pensions was supported by the vast majority of scholars. Its decision to enforce this view by declaring the CJEU’s judgment to be ultra vires was defi ed by the doctrine. Some scholars also criticized the decision of the CJEU in Landtová as immoderate.40 Th e communication breakdown between the two courts 41 led to a serious enforceability problem for both of them due to their unilateral focus on the eff et utile of the provisions of their legal order, rather than considering a composite eff et utile solution. My second example, the Centro Europa case, helps to rationalize how a composite eff et utile approach may work.

the Landtová-Slovak Pensions line of cases, see Tichý, L., Dumbrovský, T., Ústavní soud ČR mezi dvěma právními řády: od interpozice k nové evropské doktríně, Právní rozhledy, 2012, 191.

39 For a similar view of the game, see Zbíral (n. 38 above) and Komárek (n. 28 above) (both claiming that the attack on the CJEU was only a collateral damage in the Constitutional Court’s war with the Supreme Administration Court over the Slovak pensions).

40 See Král (n. 28 above), 32-33; Pítrová (n. 34 above), 88-89; Král (n. 34 above), 277-278; Tichý, Dumbrovský (n. 38 above).

41 Th e Czech Constitutional Court reasoning was tainted with a feeling of off ense due to the behaviour of the Government, the Czech Supreme Administrative Court, and especially the CJEU. During the hearing at the CJEU, the Czech government shocked the judges and the AG by arguing against its “own” Constitutional Court. Th e Government had an interest in the CJEU ruling against the supplement, as it was the policy of the executive not to provide the supplement ordered by the Constitutional Court. Th e Constitutional Court tried to submit its position as amici curiae, but was denied this right in line with Art 23 of the Protocol on the Statute of the CJEU, which explicitly provides that only a Member State, the Commission, and an EU institution or another EU subject who has enacted a legal act in question is aff orded the position of amici curiae (for third party interventions at the EU see i.a. Carrera, S., Petkova, B., Th e role and potential of civil society and human rights organizations through third party interventions before the European Courts: the case of the EU Area of Freedom, Security and Justice, in M. Dawson et al. (eds.), Judicial Activism at the European Court of Justice: Causes, Responses and Solutions, Edward Elgar, 2012). Although the CJEU acted in line with EU procedural laws, we may consider whether there was another way to deal with the problem in a more respectful way towards a high judicial institution of a Member State than to reject the submission by the registrar offi ce in the form of a note from an administrator. Th e CJEU could take this procedural matter for deliberation and employ the principle of loyal cooperation, for instance, especially under the given circumstances where the root of the problem was not in legislation or executive action, as normally is the case, for which a representative of the executive was ill-equipped to represent the Member State.

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III. Th e CJEU, ECtHR, and a national court: Centro EuropaCentro Europa 7 Srl (Centro Europa) is an Italian broadcasting company. Having

participated successfully in the tender procedure, Centro Europa was in July 1999 granted a licence for nationwide terrestrial television broadcasting, authorising it to install and operate an analogue television network.42 Th e licence entitled Centro Europa to three frequencies covering 80% of Italy. Th e frequencies were to be assigned in line with a national frequency allocation plan from October 1998 43 within twenty-four months. However, the national frequency allocation plan was never implemented, even though the Constitutional Court in response to the inaction of the responsible Communications Regulatory Authority set the deadline for implementing the plan itself.44 Instead, a series of subsequent national laws 45 prevented Centro Europa from eff ectively making use of its rights, to the benefi t of incumbent operators, including those who had been unsuccessful in the tender procedure.46 In other words, Centro Europa was granted a right to broadcast, invested heavily in the necessary infrastructure, but has never been given frequencies to actually be able to broadcast. Centro Europa brought an action before the regional administrative court to order the competent administrative authorities to allocate the frequencies and to pay compensation. Th e court dismissed the action in its entirety, concluding that Centro Europa did not have an enforceable claim to have specifi c frequencies allocated.47 On appeal, the Consiglio di

42 Ministerial decree of 28 July 1999.43 Decision No. 68/98 of Autorità per le garanzie nelle comunicazioni (Communications Regulatory Authority).44 Case C-380/05 Centro Europa 7 Srl v Ministero delle Comunicazioni e Autorità per le Garanzie nelle

Comunicazioni and Direzione Generale Autorizzazioni e Concessioni Ministero delle Comunicazioni [2008] ECR I-349, para 41.

45 Th e national allocation plan was based on Law No. 249/1997 (Ordinary Supplement to GURI No. 177 of 31 July 1997; the so-called Maccanico Law), which in fact required dismantling the duopoly of Rai-Mediaset (see below) “prohibiting the same operator from holding rights permitting it to broadcast at national level on more than 20% of the television channels operating on terrestrial frequencies.” Centro Europa (n. 44 above), para 23. Th e law required the national allocation plan to be implemented within 24 months of the notifi cation of the Decree; however, in the event of “objective impediments” that period could be extended for another 12 months. Subsequent laws inhibited further the dismantling of the duopoly: Decree-Law No. 5/2001 converted into law and amended by Law No. 66/2001 (GURI No. 70 of 24 March 2001, 3); Decree-Law No 352/2003, converted into law and amended by Law No. 43/2004 (GURI No. 47 of 26 February 2004, p. 4); Law No. 112/2004 (Ordinary Supplement to GURI No. 82 of 5 May 2004; the so-called Gasparri Law). Th e fi rst of these “inhibiting” laws allowed the incumbent operators to retain the terrestrial license until there is a real and signifi cant increase in users watching their programmes by cable or satellite. Th e later two laws argued that the national allocation plan must be adapted to the development of digital television, and so until then the incumbents may keep their analogue frequencies. Furthermore, the Gasparri Law provided that only active operators could apply for the new digital frequencies.

46 Rossini, M., Court of Justice of the European Communities: Case of Centro Europa 7, IRIS, 2008, available at: http://merlin.obs.coe.int/iris/2008/3/article5.en.html. See also CJEU, Centro Europa (n. 44 above), Opinion of AG Maduro, para 7.

47 See CJEU, Centro Europa (n. 44 above), Opinion of AG Maduro, para 12.

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Stato (the Italian supreme administrative court) referred ten questions for preliminary ruling to the CJEU.48 Th e fi rst question asked whether “Article 10 of the ECHR, as referred to in Article 6 of the [EU] Treaty, guarantees pluralism in the broadcasting sector…”.49 Th e remaining nine questions inquired into the interpretation of Article 49 TEC on freedom to provide services and the respective provisions of the EU regulatory framework on electronic communications services.50

Th e Court stated that “[a]n operator cannot exercise eff ectively the rights which it derives from Community law in terms of access to the television broadcasting market without broadcasting radio frequencies”.51 Article 49 TEC guaranteeing freedom of services and the EU regulatory framework on electronic communications services thus preclude a piece of national legislation “the application of which makes it impossible for an operator holding rights to broadcast in the absence of broadcasting radio frequencies granted on the basis of objective, transparent, non-discriminatory and proportionate criteria”.52

Th is conclusion was suffi cient, in the Court’s view, for the Consiglio di Stato to rule on the application by Centro Europa and the question on Article 10 ECHR no longer needed to be answered.53 However, the Opinion of Advocate General Maduro thoroughly and innovatively re-examined the theoretical grounds for the application of human rights within the EU legal order. He borrowed from Advocate General Jacobs, who in his Opinion in Konstantinidis proposed that an EU citizen should be entitled to the common code of fundamental rights wherever he went to earn his living by simply saying civis europeus sum, similarly to a Roman citizen invoking his rights anywhere in the Roman Empire.54 Maduro acknowledged that EU integration has not yet gone so far that any national measure would be reviewable in the light of EU fundamental rights, but he opined that

[p]rotection of the “common code” of fundamental rights… constitutes an existential requirement for the EU legal order… Th ough the degree of protection of fundamental rights at national level [and EU level] does not have to be exactly the same… there must be some measure of equivalence in order to ensure that the law of the Union can operate eff ectively within the national legal order…55 [However, o]nly serious and persistent violations… of fundamental rights… would… qualify as violations of the rules on free

48 CJEU, Centro Europa (n. 44 above).49 Ibid. at para 46.50 Th e Court dismissed questions invoking abuse of dominant position because the referring court did not

provide any specifi c facts on that matter. Ibid. at para 48 et seq.51 Ibid. at para 86 (emphasis added).52 Ibid. at para 116 (emphasis added).53 Ibid. at paras 117-122.54 Case C-168/91 Christos Konstantinidis v Stadt Altensteig [1993] ECR I-1191, Opinion of AG Jacobs,

para 46.55 CJEU, Centro Europa (n. 44 above), Opinion of AG Maduro, para 20 (emphasis added).

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movement, by virtue of the direct threat they would pose to the transnational dimension of European citizenship and to the integrity of the EU legal order.56

Maduro concluded that the right to freedom of expression was only auxiliary to the issue of restriction of free movement and the Court followed, deferring the question to be eventually decided at the more appropriate venue, the ECtHR.

To appreciate the stakes, we must look back at the development of the Italian television market, which has been referred to as an “Italian anomaly”.57 Since the inception of television broadcasting, the state television RAI held a monopoly.58 In the 1970s, the Italian Constitutional Court reaffi rmed that the monopoly at the national level was justifi ed on public interest grounds. However, and most importantly, the court ruled the public monopoly at the local level unconstitutional and opened the local markets to private broadcasters.59 Th e allocation and voluntary redistribution of local frequencies subsequently encouraged the development of large regional and de facto national operators, including Silvio Berlusconi’s Mediaset group. Mediaset managed, together with RAI, to establish a “duopoly” of public and private operators.60 Th e two companies together accounted for almost 90% of the total audience share and collected 96.8% of advertising revenues.61

Despite further attempts to liberalise the market and enhance media pluralism in the 1990s, in the process of which the Communications Regulatory Authority was established, new licenses were granted through open tenders (including the one to Centro Europa), and incumbent operators were forced to reapply for their licences and compete with new entrants,62 Berlusconi was able to forestall this development when returning to government in 2001 with the series of laws referred to above. As Prime Minister, Berlusconi was able to control both the public broadcaster RAI, and his company Mediaset, of which he increased his share from 48% to 51% during his term

56 Ibid. at para 22.57 See Parliamentary Assembly Resolution 1387 (2004) on Monopolisation of the electronic media and

possible abuse of power in Italy, available at: http://assembly.coe.int/Documents/AdoptedText/ta04/ERES1387.htm; Commissioner for Human Rights, Council of Europe, Media pluralism and human rights, Issue Discussion Paper, CommDH (2011)43, 2011, part 3.2., available at: https://wcd.coe.int/ViewDoc.jsp?id=1881589.

58 Private entrepreneurial groups had contested the state monopoly since the 1950s; the Italian Constitutional Court, however, certifi ed the monopoly in 1960. Ruling No. 59/1960 [1960].

59 Italian Constitutional Court, Ruling No. 202/1976 [1976].60 See e.g. Treré, E., Bazarin, V., Anatomy of the Italian Web TV ecosystem. Current issues and future

challenges, Digital Communication Policies in the Information Society Promotion Stage, 2012, 87 (giving an overview of the RAI-Mediaset duopoly, dubbed sometimes “Raiset”, and Berlusconi’s (ab)use of it).

61 European Parliament Resolution on the risks of violation, in the European Union and especially in Italy, of freedom of expression and information (Article 11 para 2 of the Charter of Fundamental Rights of the European Union (2003/2237(INI)), P5_TA(2004)0373, 2004, para 55, available at: http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P5-TA-2004-0373&language=EN.

62 Law No. 223/1990 (GURI No. 185 of 9 August 1990, Ordinary Supplement No. 53; the so-called Mammì Law).

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in offi ce. “[A]n absolute majority of the members of the RAI board of governors and the respective parliamentary control body [were] members of the governing parties”.63 Th ere were “repeated and documented instances of governmental interference, pressure and censorship … of the RAI public television service, starting with the dismissal of three well-known professionals” at the public request of Prime Minister Berlusconi in 2002.64

Th is context gave weight to Centro Europa’s complaint to the ECtHR, submitted in 2009.65 It presented the ECtHR with a possibility of addressing the Italian anomaly, which had been criticized repeatedly by the institutions of both the Council of Europe and the European Union. However, the relevant authorities eff ectively ignored the CJEU judgment. Th e Consiglio di Stato, after receiving the CJEU response to its questions, concluded that it lacked the competence to either grant a frequency or to compel the broadcasting authority to grant one. It nevertheless ordered the government “to deal with the applicant company’s request for frequencies in a manner consistent with the criteria laid down by the [CJEU]”.66 Despite a few developments, Centro Europa received neither the frequencies nor compensation. Th e response of the Consiglio di Stato to the CJEU ruling demonstrated the enforceability problem addressed in part I above, in which the CJEU found a clear EU entitlement, but the national court lacked tools for its enforcement within the national legal order. Advocate General Maduro addressed this problem by invoking the eff et utile argument in his Opinion:

[N]ational courts, which have a duty to ensure the eff ective application of Community law, must closely scrutinise the reasons given by a Member State for seeking to delay the allocation of frequencies to an operator who has obtained national broadcasting rights through a public tendering procedure, and, if necessary, order appropriate remedies to ensure that those rights do not remain illusory… [W]here domestic rules do not make an eff ective remedy available, Community law requires national courts to grant such a remedy none the less, in order to avoid a situation in which “the full eff ectiveness of Community rules would be impaired and the protection of the rights which they grant would be weakened”.67

Following the continuing inaction of the Italian authorities, Centro Europe turned to the ECtHR, alleging a violation of its right to freedom of expression, and particularly its freedom to impart information and ideas protected by Article 10 ECHR.68 Th e Second Section of the ECtHR relinquished jurisdiction in favour of the Grand Chamber. Th e Grand Chamber of the ECtHR emphasized its established case law that the “Convention is intended to guarantee not rights that are theoretical

63 2004 EP Resolution (n. 61 above), para 59.64 Ibid. Th e EP Resolution also lists instances of governmental pressure on media beyond the Government’s

direct control leading e.g. to the resignation of the editor of the Corriere della Sera in 2003. Ibid.65 Centro Europa 7 S.R.L. and Di Stefano v Italy, Application No. 38433/09 [2012] ECHR 974.66 Consiglio di Stato, Decision No. 2622/08 [2008], quoted in ECtHR, Centro Europa (n. 65 above),

paras 37 et seq. 67 CJEU, Centro Europa (n. 44 above), Opinion of AG Maduro, paras 40 and 41 (emphases added);

quoting Joined Cases C-6/90 and C-9/90 Francovich [1991] ECR I-5357, para 33.68 ECtHR, Centro Europa (n. 65 above), para 3.

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or illusory but rights that are practical and eff ective”.69 Th e ECtHR fi rst used this wording in Artico v Italy in 1980.70 Let me briefl y summarize the use of eff et utile in the jurisprudence of the ECtHR. Merrils writes that

the idea of the Convention as an eff ective instrument, and of the Court as an eff ective piece of the machinery, have played a major part in the shaping of the Strasbourg system through judicial decisions… [T]he Court’s preference for what it terms a “practical and eff ective” interpretation, as against a “formal” one, has frequently proved an important and creative technique.71

In Artico, the petitioner invoked a right to legal counsel.72 In a criminal proceeding in front of the Italian courts, the Italian Court of Cassation assigned Mr. Artico a lawyer. However, the lawyer failed to represent him due to illness and other commitments. Th e Court of Cassation refused the petitioner’s request for replacement of the counsel, leaving the petitioner to represent himself at the hearing. Before the ECtHR, the Italian government argued that its obligation resulting from the Convention had been discharged as soon as the petitioner was assigned (nominated) a counsel and nothing more was required.73 Th e ECtHR rejected this defence:

Article 6 para 3 (c)… speaks of “assistance” and not of “nomination”… mere nomination does not ensure eff ective assistance… Adoption of the Government’s restrictive interpretation would lead to results that are unreasonable and incompatible with both the wording of sub-paragraph (c)… and the structure of Article 6… taken as a whole.74 [I]t was for the competent Italian authorities to take steps to ensure that the applicant enjoyed eff ectively the right to which they had recognised he was entitled.75

Th e ECtHR used Article 6 protecting the right to fair trial, especially when criminal proceeding was concerned, to establish its eff et utile argument,76 and expanded it step by step to more contestable areas of its jurisdiction. In cases like Marckx, X and Y v Netherlands, and Airey, concerning Article 8 ECHR protecting private and family life, the ECtHR ruled that implementation of many fundamental rights calls for positive 69 Ibid. at para 138 (emphasis added).70 Artico v Italy , App. No. 6694/74 [1980] A 37.71 Merrills, J. G., Th e Development of International Law by the European Court of Human Rights, Manchester

and New York 1993, 89. Cf. the struggle between the Czech Constitutional Court and the Czech general high courts, in which the Constitutional Court used the same technique of juxtaposing an eff ective application of fundamental rights to “exalted formalism” of general courts, examined in part I above.

72 Art. 6 para 3 (c) ECHR.73 Artico v Italy (n. 70 above), para 33; Merrils (n. 71 above), 90.74 Ibid. at para 33.75 Ibid. at para 36 (emphases added).76 Cf. also Adolf v Austria, App. No. 8269/78 [1982] A 49, para 30 (stating that “[t]he prominent place

held in a democratic society by the right to a fair trial favours a “substantive”, rather than a “formal”, conception of the “charge” referred to by Article 6…”); Minelli v Switzerland, App. No. 8860/79 [1983] A 62; Airey v Ireland, App. No. 6289/73 [1979] A 32 (where the ECtHR extended its jurisprudence on eff ective legal assistance and access to courts to civil proceedings); and others.

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action by the national government, even though a textual interpretation merely protects an individual against arbitrary interference by public authorities.77 Th e ECtHR has repeatedly invoked the eff et utile argument, although it has never used the term itself, to “interpret the Convention in a way which gives its provisions a maximum of eff ectiveness, having regard to its language and its object and purpose”,78 to extend the responsibility of State parties for violation of the Convention primarily caused by individuals,79 and to limit (provide a minimum eff ect) the State parties’ reservations to particular provisions made upon their ratifi cation of the Convention.80 Th e ECtHR has nevertheless remained cautious, only using eff et utile as a principle of interpretation to expand the application of the Convention when a textual and contextual reading of the Convention provided enough room for it.81

As part of the eff ort to increase the eff ectiveness of its case law, the ECtHR developed the idea of pilot judgment in the early 2000s. Th is was subsequently codifi ed in Rule 61 of the Rules of Court.82 In Broniowski v Poland, the ECtHR was faced with an issue that involved some 100,000 people – and thus potential applicants if Broniowski were to win. For the court, it was a recurring problem as, apart from granting “just satisfaction” to a petitioner, there was no way to make violating State parties put their legal order or practice in line with the Convention. Buyse cites the Marckx case from 1979 mentioned above as an early example of the ECtHR acknowledging this problem.83 In Broniowski, the ECtHR held that the violation “originated in

77 Marckx v Belgium, App. No. 6833/74 [1979] 2 EHRR 330; X and Y v Netherlands, App. No. 8978/80 [1985] A 91; Airey v Ireland (n. 76 above) (concerning the right to private and family life besides the issue of access to (civil) courts within the meaning of Article 6 ECHR mentioned above). Especially X and Y v Netherlands is illustrative here. Th e case concerned the rape of Miss Y, who was mentally handicapped and not competent to initiate criminal proceeding, which, however, according to the Dutch Criminal Code could only be initiated by the victim and so the assailant escaped prosecution. Th e ECtHR applied eff et utile in two ways: fi rst, to rule on the government’s responsibility for the obvious legal gap, and second, to assign to the government “a degree of responsibility” for Miss Y’s suff ering and a resulting obligation to pay compensation despite the government’s plea that Miss Y’s suff ering from the consequences of rape seven years after it happened was attributable to the assailant only and not to the government. No compensation, the ECtHR opined, would undermine the decision on the merits.

78 Merrils (n. 71 above), 97.79 See e.g. the Goddi case, where the ECtHR found the Italian government liable for the ineff ective defence

of an assigned counsel, who was unfamiliar with the case and was not given enough time to prepare for the defence. Goddi v Italy, App. No. 8966/80 [1984] A 76.

80 See e.g. Engel and Others v Netherlands, App. Nos. 5100/71, 5101/71, 5102/71, 5354/72, 5370/72 [1976] A22 (concerning “provisional arrest” in violation of the principle of presumption of innocence); Lawless v Ireland, App. No. 332/57 [1961] A 3 (concerning the detention without trial of a member of the IRA); and others.

81 Merrils (n. 71 above), 108 et seq.82 Rule 61 of the Rules of Court, eff ective from March 2011, available at http://www.echr.coe.int/

Documents/Rules_Court_ENG.pdf.83 Buyse, A., Th e Pilot Judgment Procedure at the European Court of Human Rights: Possibilities and

Challenges, Nomiko Vima, 2009, 78, 80-81.

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a widespread problem which resulted from a malfunctioning of Polish legislation and administrative practice and which has aff ected and remains capable of aff ecting a large number of persons”.84 When such a “structural or systemic problem or other similar dysfunction” is found, the ECtHR in its pilot judgment identifi es “both the nature of the problem… as well as the type of remedial measures which the [State party] concerned is required to take at the domestic level…”.85

Returning to Centro Europa, the ECtHR reiterated its Artico “clause” that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and eff ective and concluded that “[t]he failure to allocate frequencies to the applicant company deprived the licence of all practical purpose since the activity it authorized was de facto impossible to carry out for nearly ten years. Th is accordingly constituted a substantial obstacle to, and hence an interference with, the applicant company’s exercise of its right to impart information and ideas”.86

Conclusion: Composite eff et utile?Th e Member States’ constitutional courts and the CJEU have settled on a pluralist

constitutional system in the last two decades.87 Th e ECtHR has been increasingly involved in this system as well. Th us there might be three and sometimes four courts – the national high general court, the national constitutional court, the CJEU, and the ECtHR – in a given case that struggle for the laws within their jurisdiction to be given real eff ect. In the absence of a clear fi nal arbiter in such situations, each of the respective courts should bear in mind that the eff ectiveness of its own laws largely depends on the assistance of other courts; and this assistance is more likely to be off ered if the ability of the other courts to provide an eff ect, to the greatest possible extent, to provisions they are called on to protect is not undermined. Bluntly put, the eff ectiveness of any constitutional provision at the end of the day depends on those who have the sword.

84 Broniowski v Poland, App. No. 31443/96 [2005] Reports of Judgments and Decisions 2005-IX, para 189.85 Rule 61 paras 1 and 3 of the Rules of Court (n. 82 above). Despite this development, the structural

eff ectiveness of the ECtHR remains in some, particularly non-EU Eastern European countries, close to zero. For instance, Russia’s compliance is on face value impressive – it pays compensation promptly. However, this only masks “the ways the Russian government has ignored or even actively undermined the goals of the ECHR”. Lapitskaya, J., ECHR, Russia, and Chechnya: Two Is Not Company and Th ree Is Defi nitely a Crowd, Journal of International Law and Politics, 2011, 479, 490 et seq.

86 ECtHR, Centro Europa (n. 65 above), para 138.87 On the concept of constitutional pluralism, see e.g. Walker, N., Th e Idea of Constitutional Pluralism.

Modern Law Review, 2002, 317; Kumm, M., Who is the Final Arbiter of Constitutionality in Europe?: Th ree Conceptions of the Relationship between the German Federal Constitutional Court and the European Court of Justice. Common Market Law Review, 1999, 351; Maduro, M., Interpreting European Law: Judicial Adjudication in a Context of Constitutional Pluralism, Working Paper IE Law School, WPLS08-02, 2008; Halberstam, D., Constitutional Heterarchy: Th e Centrality of Confl ict in the European Union and the United States, in J. L. Dunoff , J. P. Trachtman, Ruling the world?: constitutionalism, international law, and global governance, Cambridge 2009, 326.

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And if anybody within the judiciary disposes of a sword which may compete with the executive branch, it is a lower general court that issues payment orders, warrants, and other enforceable titles. It is a lower general court that on a day-to-day basis enforces the solutions designed with constitutional ethos in faraway national, supranational, and international courts and aff ords them actual precedential value.88 However, to get there, the three “constitutional” courts, the ECtHR, the CJEU, and a national constitutional court, must be careful not to undermine their mutual positions.

While the Landtová-Slovak Pensions case represents a profound failure in this respect, the Centro Europa case demonstrates a workable solution. In Landtová-Slovak Pensions on the one hand, the CJEU did not expect that the national constitutional court might rule its judgment ineff ective, while the national constitutional court could hardly imagine that the national government and the national legislature would use the CJEU to neutralize a judgment of their own constitutional court. Although the Czech Constitutional Court’s view fi nally prevailed,89 its authority within the “four courts” pluralist system has been damaged, with possible consequences for the eff ectiveness of its constitutional jurisprudence in the future.

In Centro Europa, on the other hand, the CJEU refrained from exercising jurisdiction in the sphere of human rights while achieving the same result through its uncontested jurisdiction in the sphere of market freedoms. At the same time, the Court, through its Advocate General and his civis europeum sum exercise, pointed out that there is a common core of fundamental rights that any EU citizen, if not yet any European, carries with him as part of his social status. Th e CJEU, intentionally it seems, left the ECtHR enough room to add its contribution to this common core in the later stage of the case development. Th e harmonic rulings of the CJEU and the ECtHR may prove to provide heavyweight backing for the Italian Constitutional Court, which has on its own not been able to remedy the Italian anomaly, in changing the Italian media landscape. In the Centro Europa case, both supranational courts, albeit on diff erent grounds, grounded their decisions in eff et utile doctrine. Th e Italian Constitutional Court may add its contribution of national constitutional reasoning and merge the three constitutional views in a composite eff et utile.

Th e two case studies I have chosen for this chapter demonstrate the extremes of eff ective cooperation among courts in a constitutionally pluralist Europe. In most cases, however, a composite eff et utile would direct the “constitutional” courts involved towards a workable compromise, limiting the demands of each legal order involved. In a situation of confl ict between the general constitutional provisions of several legal

88 It was this kind of team-up between the CJEU and national lower general courts which has endowed EU law with a real eff ect. See e.g. Stone Sweet, A., Judicial Construction of Europe, New York 2004.

89 Th e Czech legislator, as mentioned in Part II above, provided for a statutory right to a supplement without reference to nationality in order to appease both the CJEU and the Constitutional Court. However, it remains doubtful whether this solution does not constitute indirect discrimination under EU law.

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orders, a solution that would satisfy all legal orders involved might not be possible. In such a case, a composite eff et utile works as a guideline for fi nding an ad hoc solution to the confl ict. Eff et utile represents a way to weigh or, better, aggregate the interests of the legal orders involved, so that courts fi nd a solution that saves the most from each of the constitutional provisions involved. Th is can be considered a paradoxical result of eff et utile, where two confl icting constitutional provisions are weakened for the sake of giving both of them at least some meaning. In an ideal world, some kind of dialectical synthesis may bring a better solution than either of the legal orders involved could provide on its own. However, most times a court must opt for useful eff ect instead of full eff ect; that is, to choose the solution of one legal order that at the same time increases (or at least does not undermine) the ability of the other legal order(s) to provide eff ect in the long run.