 So ladies and gentlemen, distinguished guests, the same practitioners, all our guests, it's privilege and the anticipation of, we have gathered here to discuss a subject that stands as the very cornerstone of European law and jurisprudence and preliminary references. And through this procedure, national courts as you know, are not just passive recipients of European law but active dialogue partners with the court of justice of the European Union. And this symbiosis ensures that the application of such law is harmonized, consistent and fine-tuned to the unique legal landscapes of the member states. The ramifications of the preliminary reference procedure are pulpable, particularly in realms that concern all of us, legal certainty. Market integration and the stability of our financial systems. Imagine if you will for a moment, a European Union without a harmonized understanding of its own laws. And in such a scenario, the resulting legal cacophony would reverberate across national borders, sowing discord where we seek union and uncertainty where we require stability. Key judgments such as Gauwiler and Pringle in the EMU realm have direct implications on how monetary policy and crisis mechanisms are constructed and implemented. Also in the field of financial regulation, the increasing importance of EU law inevitably means that the importance of preliminary rulings is dramatically rising as witnessed by a number of cases that have a direct relevance for the supervision of banking supervision. The Peter Paul and Cantareff, Judgement Baumeister, Berlusconi, Finvest, in Crea, Banco Santander, Banco de Portugal, Banco Espirito Santo, Federación Banque Française, I just mentioned some. I already spoke at length, a second ago, as you know, on climate litigation, so I will skip that here, but it might also be that at one time we will see preliminary references in that sphere as well. Hundreds of cases actually have reached the Court of Justice in the field of environmental law through the preliminary reference procedure. And this is not the case yet specifically for cases relating to climate change, but it is easy to foresee developments in this space given the interplay between the objectives as they are set out in EU law and their implementation through national legislation. So let me now turn to our panel and to introduce our distinguished speakers who have much more to say than I do on the topic of preliminary references and their history and the prospects in terms of future developments. So our first panelist will be Professor Sacha Garmin. I'm currently a professor of EU law at the Legal Studies Department of the Collège of Europe in Berlus. Professor Garmin also serves as a replacement judge at the Amsterdam Court of Appeal. She holds academic degrees from prominent institutions, is a graduate of Maastricht University and LLM from the Collège de Robbe and then PhD of the European University Institute in Florence. And her work has investigated foundational questions related to the division of competences, the balance between social and economic rights and the constitutionalization of EU law. Today, Professor Garmin will focus on the historical dimension of preliminary references. She will frame preliminary references as pivotal to the constitutional architecture of the EU, elucidated and through iconic cases such as van Gent. I'd love to speak a little bit of Dutch for every now and then. Sorry for that. With a focus on the relationship between national courts and EU institutions, her presentation will probe the nuances of judicial dialogue and constitutional contestation. Looking to the future, Professor Garmin brings forth innovative proposals, examining the expansion of the general courts' jurisdiction and contemplating procedural reforms to better reflect constitutional pluralism. And her insights promise to be invaluable as we seek to understand the complexities and future trajectories of preliminary references in EU law. And our second speaker will be Vittorio Di Bucci. Born in Asti, Italy, Mr. Di Bucci commenced his academic journey at the Universitat de l'Estudie di Torino, further refining his expertise in community law at the Université de Nancy de in France. His inaugural tenure at the Court of Justice started as a lawyer linguist and later as a legal secretary, the referendaire to Judge Federico. A veteran of the European Commission, the European Commission's legal service, Mr. Di Bucci's wisdom has been imparted to various teams, including transport, environment and consumer, state aids and dumping and competition. And in June of this year, he ascended to the role of registrar of the General Court, a testament to his profound legal experience. An avid writer, Vittorio Di Bucci covers a myriad of topics in EU law, notably in proceedings before EU courts, state aid and banking law. And today, he will review relevant historical presidents to consider potential future developments in a number of areas, including recent developments in the field of economic and monetary policy, as well as the field of banking law in light of some of the recent relevant cases. The innovation of the so-called one-stop shop, which is unique in the transfer of jurisdiction of the General Courts in specific cases and the proposals to establish specific organs slash procedures in case of conflict. Lucia Rossi, last but not least, Judge, currently the president of the ninth chamber of the Court of Justice of the European Union, she brings her rich blend of academic and practical perspectives to our dialogue. A law graduate and PhD holder in European law from the University of Bologna, she also practiced law and is a member of the Bologna Bar since 1985, when I was still in high school. Author of over 130 academic publications, she previously served as the full professor of European law and the director of the International Research Center and on the European law at the University of Bologna. In her presentation today, Judge Rossi will cover the following points. A critical examination of jurisdictional competences in the EU, specifically focusing on the scope of judicial review over the European Central Bank decisions and the dynamics of the single supervisory mechanism. An in-depth analysis of Article 47 of the Charter of Fundamental Rights addressing effective judicial production and non-discrimination within the EU legal architecture, and she will close her intervention with a view on the ongoing reform of the EU's filtering mechanism, casting a spotlight on its limited relevance in banking supervision and the sui-generous nature of the administrative board of review. I'm looking forward very much to all your contributions that I'm sure will be extremely insightful and interesting. And before I leave you the floor, just another call on everyone here to actively participate, not just listen, but to contribute as Cari has told us. And now, Professor Garmin, I've been speaking way, way too long, so the floor is yours. Thank you so much. The advantage, of course, is that if you spoke too long, you lose your credibility in penalising when I speak too long. Although I saw a very scary bell there, is that to discipline people going over time? I don't know. There's a power point. I will find out. Okay, so there's risk in this to manage me through risk, yeah. Okay. So... I would like to discuss, indeed, with you the past, present and future of the preliminary reference procedure and, in particular, if I get this thing to work, I need to bring it to you. I need to point at you. Okay. Sorry. Okay. Ah, well, there you go. Indeed, pointing at you there. This is not working very well, is it? Yes, well, I will be saying next slide for about 200 times then. So, that's not very practical. Yeah, okay. But just keep pressing, basically. Yeah, and we'll establish a kind of flow. So, I would like to focus on the role of the preliminary reference procedure in the process that we call the constitutionalization of EU law. And in the past, I think that was portrayed, conceived as a great success. I think we find ourselves currently in a more problematic reality. I think the preliminary reference procedure is at the heart of some very serious constitutional contestation about also the rule of law in the European legal order. And the million-dollar question, I think, is that we need to reflect on. Nope. Is the preliminary reference procedure a vehicle for the supremacy of EU law, by which I mean absolute primacy in the line of the Court of Justices argument, or can the preliminary reference procedure be reconceptualized perhaps as a vehicle for constitutional pluralism, which is what I think most national courts would be interested in. And that, of course, then feeds into how we think of potential reform. Okay. So the preliminary reference procedure, as we all know, is laid down currently article 267 of the TFEU, which is one of the most central provisions in the treaties as Damien Chalmers and colleagues have said eloquently, developed by the Court of Justice to realize a pan-union judicial order with its own rules of jurisdiction, of allocation of responsibilities and judicial hierarchies and collective goals. This judicial order as a whole comprises the EU courts, but also, obviously, and importantly, the domestic courts, national courts as EU courts. Indeed, the preliminary reference procedure has often been seen as, in the words of the Crown Jewel in the Court's jurisdiction. And I think this image conveyed by a Crown Jewel is extremely fitting because the preliminary reference procedure, it's not just a shiny, pretty thing. It has been crucial in the establishment of the EU's authority, that of the Court of Justice, to its claim of at least a degree of sovereign power. In France, the Court obviously developed the doctrines of direct effect and the autonomy of the EU's authority. So the authority of the EU is not rooted, according to this conception, in national constitutions, but it flows from the community system as such, autonomously. It flows from the treaties. In France, the Court uses the preliminary reference procedure as one of the most important arguments, actually, to establish these doctrines. The Court says there, in France, the task assigned to the Court under the preliminary reference procedure, the object of which is to secure uniform interpretation of the treaty by national courts confirms that the States have acknowledged that community law has an authority which can be invoked by their nationals before those national courts. Why have a preliminary reference procedure if you don't have direct effect? Importantly, I think, perhaps even more importantly, the Court then uses this as one of the major arguments to come up with its big bang moment in European integration, basically. Clearly not very much inspired by tradition and very much seeing themselves as drivers of change, I would think. The conclusion to be drawn from this is that the community constitutes a new legal order of international law for the benefit of which the States have limited their sovereign rights, albeit with unlimited fields, and the subject of which comprise not only member States but also their nationals. Those more limiting aspects, the limited fields, and the international law, they get dropped. The limited fields become ever wider fields in opinion 191 and international law gets lost along the way. That's not a coincidence because that is precisely part of what the constitutionalisation of EU law is all about. It's the emancipation of the union legal system from an international law system to something more akin to a federal state system where you just have legal norms that are applied and enforced by courts. Right? That obviously we all know has made individual litigants enforcers of EU law, which adds efficiency to the perhaps not so efficient centralised enforcement procedures that are more traditional in international law. And I think in some ways, most importantly this has forged an intimate relationship between the law, EU law and its subjects in a way very different from international law. And this relationship is mediated not by governments and states but by national courts primarily. So how come that national courts have been at least initially, arguably so receptive and responsive to this enormous change particularly if lawyers are so traditional as we think they are. Well, because it suited them. It was about, as Joseph Weiler has said in Transformation of Europe and many others, about jurisdictional self-empowerment. Yes, there was probably also some laudable dedication to European integration and notions like the rule of law but after all what mattered most was that those lower national courts were greatly empowered under this new system because they got the power of de facto judicial review of legislation which usually they didn't have or in the system didn't exist or was reserved to higher courts. So the constitutionalisation of the Treaty of Rome as Weiler says with the principles of supremacy and direct effect binding on governments and parliaments which was the focus then which has shifted as we will come to see the principles being binding on the national courts meant an overall strengthening of the judicial branch. The ingenious nature of the preliminary reference procedure ensured that national courts did not feel that the empowerment of the court of justice was at their expense. Not sure if that was ever really fully true. I'm not sure it's true today. We'll come to that. But in a nutshell, the preliminary reference procedure proved crucial for the foundation of the EU's authority its effectiveness the collaboration of national courts in this system of authority and the machinery thus created then provided the vehicle through which many more doctrines constitutionally, substantively could be developed over time in this dialogue between the courts. So where are we now at present? So as we just said the court has interpreted the preliminary reference procedure to fashion this pan European court system in which all national courts are EU courts and where the court of justice is the apex court. So it's very hierarchical. This is not functioning smoothly at present. The central problem is a disagreement between the court of justice and the national courts about the hierarchical implications of this judicial system. In other words, if in the past the PRP's relevance was mostly connected to the doctrine of direct effect as we saw at present the emphasis is much more on the role of the PRP in the doctrine of supremacy. The doctrine of supremacy by which I mean absolute primacy. So the court of justice's conception which means that all EU law takes precedence over all national law including the most fundamental provision of constitution and it is the court of justice's final jurisdiction to determine the content and the scope of EU law and thus also the conflict with any national law. This doctrine is contested. This is not a universally accepted doctrine. On the contrary, except for maybe our weird Dutch system, all other constitutional systems in the EU reject this notion of supremacy. Also it's not been codified, declaration 17 on primacy is not a codification and the people of Europe also have never validated this. So this is not an established doctrine. This is a contested doctrine. So where are national courts in all this? National courts are bound by the preliminary rulings of the court and to do everything in their power to give full effect to these rulings, whatever it takes, I like to say in this audience. We have seen that this has been considered an empowerment of these courts and that they have therefore been champions of this. But perhaps what is not being taken into account is how much this is asking of them in terms of not just being in addition to being national courts also being EU courts, but rather to say I'm no longer a national court actually. I am first and foremost an EU court whatever that means for my national constitutional system and the internal system of judicial hierarchy in my member state. And it might turn out more traditional than we thought and less comfortable in driving the profound constitutional revolutionary change of the constitutionalisation of EU law. Basically the two things that are very sensitive are that it's not just that EU law gives them the opportunity to do things that higher courts normally were only able to do. It's that lower national courts are required to disobey their higher national courts and to sidestand national constitutional rules that prohibit them from doing so. And this is sensitive obviously but it's not just about the upset of the hierarchy it's it strikes and for this I think you have to understand lawyers and the way lawyers think and judges. This strikes at the root of how they conceptualise their system of authority and legitimacy in their place within it because I have no time for this whole quote but let's just go to the last sentence of this paragraph from Bruno de Vita's work national courts see EU law as rooted ultimately in their national constitution and they seek a foundation for the primacy and direct effect of EU law in that own constitution they do not accept supremacy and so they will always operate still within their own national constitutional framework. Now the theoretical contestation I mean this is well known that this has existed from the outset and of course the past decade has seen an intensification of this whole situation with various judgments disapplying Court of Justice preliminary rulings and explicitly rejecting the EU's and the Court of Justice's authority in 2012 Slovak pensions from Czechia 2014 IOS from Denmark VICE then in 2021 Poland and from Romania and those latter two are explicitly about this they reject the authority of national lower level judges to disapply national constitutional case law when it conflicts with EU law in the Court of Justice's conception the Court of Justice for its part doubles down on the importance of the preliminary reference procedure to maintain its view in the hierarchical EU legal order which I think you can see very well from RS in the Romanian saga where the Court says the PRP is the keystone of the judicial system established by the treaties it sets up a dialogue although some national court might say it's more of a monologue between the Court of Justice and the national courts which has the objective of securing uniform interpretation of EU law serving to ensure its consistency its full effect and its autonomy so to prevent the cacophony that you referred to a judgment delivered in this context is binding on the national court so if a national court exercises its jurisdiction under 267 it must if necessary disregard rulings from higher national courts if it considers that this is not in compliance with the Court of Justice's rulings and it must also set aside any national rule that might prevent it from doing so okay now as you can see emerging and as you already knew probably we are seeing an intersection here between on the one hand the problematic of constitutional contestation and on the other hand the problematic concerning rule of law backsliding the problems of judicial independence in certain member states now it makes total sense that the Court in recent years is framing the issue of judicial independence the quality of the rule of law and judicial systems as a necessary prerequisite for the preliminary reference procedure to work for the EU legal order to work I do want to ask us to note very well that constitutional contestation of absolute primacy is common if not universal as I said among member state legal orders it predates and transcends is certainly not the same as adversarial judgments in backsliding member states that are also piggybacking on this constitutional contestation to contest the courts and the EU's authority and I would like to argue but maybe there are different views that it would be problematic if acceptance of absolute primacy in the way the Court of Justice has framed it in France and subsequent and that the Court of Justice's particular view on the hierarchical nature of the EU legal order would be framed as a necessary component of the rule of law that the EU should enforce on the member states not in the least and this is maybe uncomfortable for EU lawyers but because the claim to absolute primacy from a rule of law perspective is not completely legitimate right like I said not accepted not by national constitutional courts not by governments explicitly but more importantly in any constitutional democracy where does power lie by the people well okay so where have the people been in validating this claim of absolute supremacy of EU law nowhere right so as a final point in this the question is heterarchy I think the Court of Justice sees the preliminary reference procedure as an expression of hierarchy in judicial architecture and in federal authority and this is something I haven't gone into at length because of a want of time but just in a nutshell this same problem or question can be seen I think in the doctrines on national courts obligation to refer to the court of justice national court and when are they not allowed because it's a question that's already clear can they then contest and invite the court to change its mind no so and what if they don't do it well then there can be state liability so this all of this is a bit of a straight jacket for national courts it has been argued and not only in academia and in national courts but also in the court itself for instance Africa general there have been voices to adjust this hierarchical view and to perhaps be a bit more flexible towards national courts when they interpret EU law to give them a bit of autonomy to do so to trust them to do so which might help them internalize EU law more create ownership and reduce resistance to EU law as a foreign element so again a central question is whether it may be worthwhile to sacrifice an element of uniformity in the interpretation of EU law to trade it in for plurality yes I see you touching the scary bell and this is my final slide so one last point how does that then translate or what does it say about the future of the PRP that we can think of to reform it so that other speakers will flesh out in much more detail the proposal that's currently on the table to transfer the jurisdiction on a range of preliminary references in a specified areas to the general court which is certainly incredibly interesting but it does not really do anything in relation to the themes that I have flagged up as problematic this does not I think mean but maybe we can think about ways in which it can but I don't think it contributes to more plurality or pluralism and more trust for national courts so instead perhaps this is really the last thing I'm going to say just to go out on something provocative if I haven't been already to this point maybe we need to think of something a new procedure to work alongside the preliminary reference procedure a procedure about constitutional dialogue a procedure where the highest courts of the member states are really treated on an equal footing with the court of justice so that it can not only be to reference the welcome a groundbreaking monologue with lasting consequences but truly become a groundbreaking dialogue so what I see is really a procedure that creates a back and forth between the court of justice and national constitutional courts on questions of constitutional importance thank you very much well thank you Professor Garmin this was I think you did all the things that we were hoping you would do to kickstart this conversation in a provocative but also a reasons provocative manner when I declare that the biggest challenge of humankind that we face was the climate crisis I saw some of you being concerned but I saw acute pain on all of your faces when you declared that absolute primacy is maybe not legitimate so I think we have to wrestle with this a little bit still and I think I'm under orders to keep the time but it's also true that we have I think a five minutes interlude between each of the speakers to see a question so if there is a question of someone who wants to now come in and I see a very clear hand there then please do so state your name state the question and I'll allow for five minutes please there's a mic and the people who are not in the room would also like to hear thank you very much for this thought provoking intervention I'm not quite sure I understand the problem what exactly do you mean when you refer to the absolute principle of supremacy which apparently the court of justice is enforcing what do you mean by absolute principle because obviously even for the court of justice the principle of attribution I think stands like a house so I'm not you know what exactly you refer to there before your answer I'll take one more question and maybe you can take both because I saw also Professor Virika Trinsack former advocate general and judge at the European Court of Justice raised her hand please a microphone and then maybe you can take them together thank you so much as you have mentioned very satiristic from former judge at the general court and former advocate general at the European Court of Justice so maybe I'm not completely objective I haven't seen this only as a provocative but very skeptical so that I don't see the case law of the European Court of Justice especially preliminary ruling procedure in this direction I have to say that the legal order is actually the most important binding in the EU and then see also the case law of the something as what is future of the EU to say to keep this together so that and case law especially is also case law of the European Court of Justice is also part of the primary law so that I don't understand exactly this this primacy is not part of the how to say of the legal order of the EU and just to mention you have mentioned really important five cases of the national courts this should be how to say a part to take us to be more sensitive about this problem but we have per year more than 200 judgments that are accepted at the national level this is important that more than 200 or I don't know exactly maybe judge will correct me and we have also in some constitutions that we have primacy of the EU law that the EU law is how to say higher the national law and also we have every year highest number of the preliminary ruling procedures so that this means that there is a national there is a trust of the national courts concerning the case law of the European Court of Justice and I have never heard the judges of the European Court of Justice to speak above the hierarchy hierarchy of the case law but especially President Lennart and also all judges they always how to say stress that this is a dialogue between the national court and the European Court of Justice yes I agree at the end is always the judgment of the European Court of Justice which is binding but if we would like to keep this here excuse me of this word of the European legal system then we need one court which has the highest power in the EU so this is maybe as I said before maybe I'm not completely objective so it's not really a question it's more common not to start this conference so skeptical according to the case law of the ECJ thank you Professor Garvin I'm so sorry if I sound skeptical I think I'm more critical but I guess that's something that's in the eye of the beholder in the end Fabian I think the problem is precisely the slide with those judgments of the national courts and not just that they are a couple of them but that I do think and maybe that's where my views differ that they represent something that is much more profound if you look at some empirical research as well at how national judges are feeling about preliminary references about how the court of justice interacts with those but just more generally how they frame the role of EU law and their role within EU law there is a big gap I think between what the EU law community takes I think for granted and what's an enormous community of national lawyers and national constitutional lawyers do not at all accept so wherever you use then sort of side on the side of the need for uniformity or the need for more pluralism I do think that precisely recognizing that there is a problem which for years was just said to be a theoretical problem but I think over the past decade has proven to be much more of an actual problem that is important and when it comes to the principle of attribution or conferral of conferred powers I mean this is part and parcel of the whole problem so in the conception of the court of justice of course the principle of conferral applies but it is for the court of justice to determine what has been conferred and to be very honest very often everything has been conferred in its view whereas for the national courts precisely they say you know the EU is a creature of conferred powers and so therefore we should maintain a say on what has not been conferred so it's the principle of conferral place precisely the role of those two different sides that are on some extent irreconcilable if you have time we go on thank you so much Vittorio floor is yours thank you very much Mr Chairman thank you also for your kind words earlier I will try to compliment Professor Garben's intervention but from a different perspective of course I'm probably not entirely impartial myself and so there will be some divergences which is probably the reason why you have different speakers on this panel so the first point of my intervention is to underline that over the years preliminary references have shown to be an extremely flexible and versatile instrument I think on that we may agree and on the second point I think we do not agree contrary to what is often claimed and we have just heard some of these claims acceptance of these developments of the instrument of preliminary references has been very wide so when preliminary references were first provided for in the ECSC treaty the Collin Institute treaty the initial intention was to complement other remedies available against the community institutions by allowing national courts to send two Luxembourg references for validity and only for validity the drafters of the Rome treaties went a very considerable step further by establishing references on interpretation of community law as an instrument to ensure uniform interpretation and application of union law this remarkable innovation allowed the court of justice to use preliminary references for a number of important purposes as we know assessing indirectly the compatibility of national rules with union law of course the final word remains with the national court but the national court will in fact often just apply what the court of justice has said then of course an important purpose was to identify the fundamental principles of the union legal orders starting with supremacy or supremacy and direct effect I don't know what absolute supremacy would mean to me there is no intermediate supremacy it's either or you cannot be half pregnant here and then an important purpose was also to clarify the respective competencies of the union and of the member states and to lay down requirements on national legal orders legal provisions national judiciary when union law is at stake and importantly enforcing fundamental rights not only upon union institutions but also upon member states when they apply union law so preliminary references have been the essential tool to build a European legal order let me just mention by way of example some preliminary references of special significance for the areas of activity of the ECB I understand that Judge Rossi will devote her attention to cases concerning banking supervision and I will happily skip them because I was often personally involved in those cases in my previous capacity as an agent for the European Commission I would just note that judgments like Belosconi and Fininvest or Ikea Bank allowed the Court of Justice to clarify the respective competencies of union and national authorities and judges while in a case like Fédération Banquette Française the Luxembourg judges exercised their control of validity of union banking rules and addressed the constitutional status of non-binding acts like guidelines and recommendations in the area of monetary policy the Pringle judgment is the best example of the way preliminary references can lead the Court to clarify major constitutional issues the full Court examined the legality of an amendment of the treaties that had been made through a simplified procedure but it also interpreted the number of treaty provisions and general principles to establish whether they impose limits on the possibility for the Euro member states to conclude the ESM treaty alongside the union treaties one of my colleagues who was an agent former colleagues who was an agent in this case speaks of limits on the extramarital activities of the member states as we know by the Gauweiler and vice judgments the Court exercised its control on the activity of the ECB more precisely on the validity of the decisions of the governing council on outright monetary transactions in Gauweiler and on the public sector asset purchase program in vice the PSPP and in both judgments the Court had to define the boundaries of monetary policy and of the competence of the ECB so both judgments as we know are very important but they are also very well known to this audience and I will not address the substance here what I would like to underline however is that the creative approach of the Court of Justice so to use the preliminary reference for so many different purposes was made possible by an intensive and fruitful dialogue with national courts the national courts of course were the ones that asked the Court of Justice to rule on their questions but often they also invited the Court to choose or at least to consider an expensive reading of the procedure for preliminary references and yes in some cases there were theoretical differences but in all but very few cases national courts accepted to follow the approach and the interpretation provided by the Court of Justice or even triggered further developments by asking additional questions and I will come back to the exceptions in a second I would also like to underline that in a large number of cases the so-called the member states expressly or at least implicitly accepted and confirmed these developments when amending the treaties in particular article 19 one of the treaty on the European Union which provides that member states shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law such an article draws the lessons of judgments such as San Giorgio on the principles of effectiveness and equivalence of national remedies Pactotame 1 on interim measures Frankovic and Brasovidi-Peshir or Pactotame 2 on the state liability for violations of community law also article 51 one of the Charter which specifies that member states shall respect the rights of the Charter when they implement Union law it embraces the Court's approach coming from judgments like Vahov and ERT as expressly stated in the official explanations of the Charter we have discussed primacy at some length already well I would like to quote Declaration 17 it's a declaration of the member states and it confirms the well settled case law of the Court of Justice it even quotes an excerpt of a note of my colleagues of the council the service of the cost and the judgment which was defined as a community law and even protocols that were aimed at limiting certain possible effects of the Court's case law like Portugal 33 on the barber judgment or Portugal 35 on abortion in Ireland after the Grogan ruling well even those protocols did not put into question the judgment themselves and were based on the premise that the Court's interpretation in a preliminary ruling can normally be relied upon to prevent the application of conflicting national rules we should not ignore the clashes with some national supreme or constitutional courts and we have already seen the list of those clashes so I can immediately go to try and having a closer look at these judicial sagas and this closer look in my view shows that they are extremely heterogeneous and with the possible exception of the Polish and Romanian situation they do not really put into question the fundamental features of the Union's constitutional order but Czech rebellion about Slovak pension had little to do with the Court of Justice and was rather the outcome of a conflict between the Czech constitutional court and the Czech supreme administrative court by the way I understand that in practice the Czech authorities found a way to follow the Court of Justice as it becomes clear when looking at the later reference that was withdrawn as to the Danish supreme court's refusal to apply the Dansk industry judgment of the Court of Justice in Agios well that was admittedly a more serious incident but it had a limited scope and no further consequences the vice or PSPP judgment of the constitutional court in Kassre was of course a much more conspicuous indeed spectacular act of rebellion and defiance vis-à-vis the Court of Justice even though ultimately it only concerned a divergence on the standard of review of a specific act of the ECB no big deal after all well it's particularly when you look at the way the constitutional court framed its judgment and concluded that there was a huge problem of competence because the ECB had not sufficiently shown that it had considered all the proportionality aspects of its action so it was a problem of Darlegung I believe in the German doctrinal parlance and well by the way we will see that the this judgment met with harsh criticism across Europe but perhaps unexpectedly also in the German legal debate second the German constitutional court found one year later that after all there was no issue of competence because meanwhile the ECB had properly assessed the proportionality of the psp program and third as you know there was an infringement procedure launched by the commission and the outcome of this procedure to quote a German scholar was nothing less than a complete disavowal of the vice judgment the German government I quote formally declared that it affirms and recognizes the principles of uniprimacy effectiveness and uniform application of union law it I quote explicitly recognized the authority of the court of justice whose decisions are final and binding it's considered that I quote again the legality of acts of the union institutions cannot be subject to the examination of constitutional complaints before German courts but can only be reviewed by the court of justice this is the German federal government the vice judgment certainly provoked a constitutional crisis but it might be more in Germany than in Europe finally by their judgments of 2021 the constitutional courts of Poland and Romania chose an outright collision course with the court of justice putting into question the principles of primacy autonomy effectiveness and uniform application of EU law well these episodes are still ongoing as you know there is also an infringement procedure against Poland concerning the two judgments of the Polish constitutional court I would just say that the legitimacy of the constitutional court is strongly contested even within Poland because of alleged irregularities in its composition and its aggressive stance has found very little support outside Poland and Romania and concerning Romania the RSK that was quoted earlier seems to show that some national courts of some importance the court of appeal rather seem to side with the court of justice than with their constitutional court importantly other experiences show that European national judges can find solutions to difficult problems through dialogue and mutual efforts. In the Taviko saga the court of justice took into account the objections of the Italian constitutional court based on the national constitutional principle of Nulla Pena Sineda Egem as applied to limitation periods. In La Quadratura Linnetta the French consulate rejected the outright and quite surprising suggestion made by the French government that the consulate should disregard the ruling of the court of justice instead the French administrative court used the residual margin left to member states in the matters of data retention to safeguard national security so precisely in matters that were not covered by union law they found that there was enough space to satisfy the needs of the French legal system so all in all I'm not convinced that constitutional consultation has been very convincing or very successful so far. In my view the public debate on these episodes and in particular on the German and Polish cases rather shows widespread support for the court of justice and for its handling of preliminary references I would draw the consequence that there is no need for new ad hoc procedures and bodies to prevent or resolve constitutional clashes and I leave aside the difficulties to define the scope and competencies of these procedures and bodies actually the question is not so much who should decide on the boundaries between the union and national competencies but which standards should apply and of course one cannot reasonably think of applying 27 different national standards so the answer must be found in union law and if the answer must be found in union law then the court of justice is precisely there to interpret it so to finish this point what is needed is a strong commitment from all sides to a genuine and respectful judicial dialogue which as we have seen has been far more productive now let me try now to say a few words about the future developments it won't be long to future developments concerning the transfer of competencies to the general court to address certain preliminary references in the past the court of justice had resisted this idea it has now embraced it to ensure that this precious instrument of judicial cooperation remains viable and operational the court of justice has now reached the limits of the workload that it can reasonably handle with 27 judges while the 54 judges of general court can still deal with additional cases and the court of justice will thus have more time to devote to this all important judicial dialogue so there I see a link between the reform and the debate we were having before the areas to be transferred to the general court have been selected on the basis that these must be identifiable areas sufficiently separate from other areas they must raise few issues of principle there must be a substantial body of case of the court and importantly they must represent a sufficiently high share of the references to have a real impact on the course workload so we have seen the list of the six areas VAT, excise duty, customs code tariff classification of goods compensation and assistance to passengers and green house gas emission allowance trading taken together the cases to be transferred to the general court should account for roughly 20% of all requests for a preliminary ruling it is a sizable share and the topics are far from insignificant but it is also clear that the most controversial areas will remain within the province and under the control of the court of justice of course depending on the outcome of this initial experience further adjustments are possible very briefly that's my final point the most salient point of the mechanism that should result from these amendments of the statute of the court as requested by the court of justice and from the consequential adaptations of the rules of procedure of both courts first there should be a one stop shop this guichet unique which will allow the court of justice to decide which courts should deal with each incoming case but the court will do so in accordance with objective criteria second the general court will have the possibility to refer back to the court of justice a case that requires a decision of principle likely to affect the unity or consistency of union law this is again in line with the spirit of the reform third the court of justice may decide to review the decision of the general court after it has been taken I quote where there is a serious risk for the unity or consistency of union law fourth point within the general court references for a preliminary ruling will be assigned to chambers designated for that purpose and fifth important requests for a preliminary ruling may be assigned to as a code intermediate chamber probably composed of nine judges sixth point an advocate general will be designated in each preliminary ruling case before the general court at this stage it is envisaged that the advocates general will be elected among the judges for three years and that during that period they will not deal with preliminary references as judges the objective of all these specific procedural safeguards is to ensure union for interpretation and application of union law irrespective of which court is code upon to rule on the request for a specific preliminary ruling another expression used in this context is that the preliminary rulings delivered by the general court should be at least as good as those delivered by the court of justice time will tell whether this goal has been attained thank you thank you very much Vittorio I'm looking around if there is any question right now before I go to if not that is fine because we will have some more general time afterwards then just also please the floor is yours thank you very much Clara di Glioli for inviting me at this very interesting conference now I have two different option one is to present what I wrote the other is to react to Sasha I'm tempted to choose the second option I must say so I must say something and then I will very brief tell something about my the speech that I wrote that I promised to send for the book so you can read my presentation in the book well absolute primacy there is no judgment of the court of justice speaking of absolute primacy well on the contrary the court of justice nonsense the primacy many times we are speaking of a principle that was established in 1964 so contestation there are always been there will there are there will be say something about the current contestation then it is true that the primacy is not written in the text of the treaty but nevertheless at the moment of the conference that issue that finalize the Treaty of Lisbon declaration number 17 was introduced about the primacy this declaration mirrors an article of the constitutional treaty that never entered into force but the idea is there and what does this declaration declare declare that all the conference of the states recognize that the primacy principle of primacy exist that this principle exists in the terms affirmed by the court of justice since costain 1964 and declares that the fact that the principle is not mentioned in the treaty itself in the text of the binding treaty because declaration is not binding is just a mean of interpretation means of interpretation is not relevant so there are these three very important points in the declaration first the primacy exist second the primacy exist in the same terms as established by the court of justice in 1964 and there is also an exit to this declaration an opinion of the legal service of the council that say the same and the third point is very important in this declaration but the declaration say okay the principle of primacy has not been introduced formally in the treaty but it was not introduced at the time of costain nothing has changed I recognize that this is an ambiguous situation from a legal standpoint because everything is there is in the declaration so that the content is not ambiguous at all what is ambiguous is the legal standing the legal value of a declaration but attention according to international law declarations are next to the treaties which are means of interpretation of the treaty so what the court of justice does is to use this declaration and the principle and its previous case law as a means of interpretation of you law so I think that you can be critical you can be skeptical about the principle of primacy but I think that after this declaration we should be less critical less skeptical because it is an important declaration and this declaration as I said was in the constitutional treaty was not a declaration was inside the treaty so the content is not the most what is the I mean the theoretical and also legal justification of the principle of primacy you can find it in the text of the treaty of course with no reference to the primacy but article 40 with T.E.U. speaks of the equality of the member states before the treaty equality of the member states before the treaty means that all the member states must respect the same way you law the treaty and the law established according to the procedure provided by the treaties there is no equality of the member states there is no equality of the citizens of the member states if three states start derogating to the primacy because it is not the primacy itself we are speaking of legislation legislation that is lawfully adopted by the states because remember that when we speak of the treaty only the states negotiate and assign the treaties and when we speak of the secondary legislation of the EU the council that is the ministers of the member states are always legislators or college legislators so the you law is not something that fall out of the blue on the heads of the states of the government it is something that has been adopted according to procedure so the idea of the court of justice is not an hierarchical idea is the necessity to preserve uniform application of you law and that's the reason of the establishment of the principle of primacy why and also the double act for the judges for the national judges that is necessary as well we are not saying you must disobey to your state's point now the court said the judges the states are due to apply you law all the institutions of the states it is the parliament implementing the you law the government of course the public administration Costanza the judges seem mental and when you see mental 1978 I mean is not a fresh revolution of the court 1978 when the costa didn't seem mental that the judges are not only judges of their state but they are judges of the European Union DC at the time the community what what did the court intend by that the idea is that if there is a you law that it is directed to everyone, to the citizen it must not be possible that this law is applied in a different way in the different states by the different judges because that would have a very I mean centrifugal effect the you law that is born as a harmonized law sometimes even uniform law regulations harmonized law directives would be split and fragmented in all the national system by the different judges interpreted in a different way that's why the preliminary ruling is important because the national judges if they have a doubt on the correct interpretation on the correct application of the you law can always refer to the court of justice and then when they are in last resort judges they must refer to the court of justice this is the only way to preserve the uniform application so when the doctor I was a professor until many many years ago so I understand this debate and I also understand the debate that comes from the constitutional court but the only alternative would be to find another way to ensure the uniform application and when I speak of uniform application I speak there every day the uniform application everywhere in the smallest village of the states in the minor claims this is the equality before the law this is the equality of the citizens not before the you law not only the equality of the states so that's why the primacy is a necessity what Sasha is referring I mean not a new debate because all the constitutional court in the time made resistance to the principle of primacy that if you take the decisions of the Romanian court which is even more serious the problem is more even more seasoned than the Polish court because they say no the judges the national judges can do nothing they must come to us to the Romanian constitutional court we as the respect of you law is written in the Romanian constitution we say if our Romanian law a piece of legislation respects or not our constitutional articles saying that we respect the you law and then the answer is yes we respect the you law the legislation is perfect so you see this is a very serious problem but is this position new no because it is the same exactly the same position that the Italian constitutional court affirmed in 1973 and then of course the Italian constitutional court changed his mind at that time the Italian constitutional court said no no the national judges must refer every time to me they cannot disapply the Italian legislation in conflict with you law and then of course there was the answer of the court of justice and then the Italian constitutional court now is very pro-european if you read in the last years all the judgments of the Italian constitutional court recognize that firm and underline the principle of primacy and what they do they enter in dialogue with the court of justice we even had this year some month ago two judgments in our court about the European RS warrant there were two preliminary references from the Italian constitutional court and I think if you read our judgments you will find that we were very reasonable very notably what is even surprising in one of these two reference preliminary reference on the European RS warrant we understood that the Italian constitutional court had a position very attentive to the fundamental rights and I think that we were very in brackets generous and now the Italian constitutional court after receiving our judgment was a little bit more severe than us saying no no we have to preserve the European RS warrant so we have to limit very much all the exception so you see it is not true that all the constitutional court are against what is true is the sooner or later the great majority of the constitutional court of the member states felt menaced by the court of justice but then the dialogue prevailed so I think that it will be the same with the Romanian constitutional court what they do they had with Bulgaria the last in Russia their session was I mean many years after the founding member states so it is legitimate and their constitutional court now have the same doubts that the constitutional court of the member states at the time in the 70s and the dialogue how can we establish a dialogue first of all there is an informal dialogue bilateral meetings delegation of the court of justice going to the constitutional courts last last year we had an anniversary of the court of justice of the foundation of the court of justice because the court of justice was born as the court of the Col. and Steele community in 1952 and the the president of the constitutional court and supreme court of the member states had been invited to the court there was a forum of two days and they come and we go there is also this dialogue as well as we have the same dialogue even more regular every six months with the European course of human rights in Strasbourg they come delegation we go delegation every six months in order to discuss a precise how we decline differently in the same way single specific fundamental rights so there is a dialogue in this sense but the best way has been indicated by the RIS judgment that Sasha quoted very rightfully well our court said when a constitutional court thinks that the court of justice has gone ultra virus that is beyond its competence it is what is doing is to assess the competence of the court the competence of the court is written into the treaty and who is the sole interpreter of the treaty the court of justice so the idea is that the constitutional course must refer to the court of justice say hey according to us you are going ultra virus and the court of justice I can tell you that is very attentive to this kind of critiques Vittorio quoted the Tarikko saga that was one very clear example how is useful a preliminary rulings reference made by a constitutional court because in this saga was tax law not very exciting the object but very important that all these judgments the first judge referred to the court of justice and the court of justice issued a judgment Tarikko that was perceived very badly by the Italian court of justice so the court of justice referred as well to the court of justice explained why in its opinion the court of justice didn't understood correctly the problem and the court of justice said now with this second reference we better understand and changing and made really a very clear turning of the reverse the previous judgment so the dialogue is made by that I know that there are in doctrine many tentative to imaging new mixed institution constitutional court and court of justice when I was professor I also was a jam on a chair I had the finance mentor for from the commission for studying such such but you know is not an institutional problem it is a really constitutional problem and the constitutional problem is a is not an institutional you can't imagine the court of justice for instance one president of the court of justice and 27 president of the court on the constitutional court together that could be the court will never accept something like this it's not a problem of structure it's not a problem of institution it's a cultural problem sometimes it's also a political problem when we come to the rule of law Sasha rightly pointed out that this is quite sensitive quite sensitive field of application of the primacy but you know even the rule of law I mean the very strong standing of the court of justice even that it's roots in the treaty it's not out of the blue it is true that probably the court of justice stretched very much article 19 but if you read the judgment republica the court said dear member state when you exceeded the you you engaged to respect some fundamental rights, fundamental values legal rules and that was part of the section procedure because remember that when the commission give the green light to a new member state the first and the most important thing is the respect of Copenhagen criteria that is fundamental rights and rule of law and rule of law so this is a part of the fund the fundative pact the union relies on a fundative foundational foundational values that are the values of article 2 to you and when a state is suspected to violate these values of article 2 the state is violating the very foundational you know so this is just to explain why I mean if you take all these pieces in an isolate way you can say ah yes the court exaggerates but if you have a look of all the picture the whole picture what are the engagement of the states when they exceed what are the rights of the individuals the respect of fundamental rights the respect of the rule of law the fundamental principles you understand that the court of justice must stick with this case law it's case law and finally I don't think that the primacy is a matter of hierarchy because if you read the first judgments you in your slides there was the piece of these judgments saying the member states gave up in a sort in a specific domain to their sovereign competence so this is more a matter of speciality than hierarchy in some fields the states no because they all adopted themselves the governments know that there is this space legal space has been occupied by the you law and they know that in these legal spaces the competent the last word competent judge having last word must be the court of justice now it is true it is true that every year sometimes people say the court of justice is increasing its competence it's not the court of justice the institution adopts more and more your legislation so every new piece of legislation every new directly every new regulation of course involves an expansion of the competence of the court of justice as the competent judge but it's not the court of justice itself that wants to have more and more domain fields as as Vittorio said the court the court is really overwhelmed we are at the limit of our capacity I don't enter at this point in the presentation we let the surprise effect reading it in the book thank you very much thank you very much to a certain extent this is a moderated stream many times people come they prepare and you hope there will be a little bit of interaction more interaction I could not have I was sitting here and it was affecting me personally now I did pretty badly because now is the time 60 seconds however it's completely understandable if some of you would like to still pitch in I think especially also of such a but maybe first I'll go to the room but I think you owe a little bit of opportunity to reply without taking too much of your time because we have this coffee break that is scheduled for 30 minutes so we have So maybe if we bring that down to 20 minutes, we still have 10 minutes now for a real discussion. I see a hand there, please. And the microphone is closed, so that's good. Many thanks for this very stimulating discussion. And my question would be on the trend that was noticed by Professor Harben. The strengthening of legitimacy of EU law in the context of democratic backsliding on the national level. And let me be quite journalistic, simplistic in the description of what happens. What happens in countries like Poland is that individual judges or courts at various levels see themselves as under attack from governments encroaching on judicial independence, rule of law, and they seek protection from European court, and they obtain this protection through rulings that confirm the reading of judicial independence, rule of law, that those judges at national level want. And case after the case, those European rulings are effectively used to achieve effects on national levels such as reinstatement of judges that were dismissed on political grounds. The context of this obviously is also a very potent use of supremacy of EU law by those national judges in a not very subtle manner. This supremacy of EU law in those contexts is simply used as a legal argument to trump what the government is doing. And obviously here we don't have a subtle academic discussion about constitutional traditions. We have a politicized battle between you can say two branches of government at the national level, or you could even say two segments of society if you want to put it in this context. It's a politicized battle but it's not unlike the way federal law of the supremacy of federal law was established in other contexts if you think about I don't know Brown versus Board of Education, Roe versus Way. This was also politicized battles in other federal structures that brought a certain type of legitimacy to the federal level rulemaking because of the way it was seen useful for certain actors at national level to gain an upper hand over certain other national actors. What do you think about this trend and the question is obviously to other panelists, how do you see it? The trend will not be limited in my view to just rule of law in Poland or other countries. It might well be used in what Frank Erderson mentioned in his previous intervention about climate litigation or in other contexts. So I would welcome your comments and best many thanks. Thank you very much, Alessandro Cuomo from Maastricht University. Two very quick questions. First one maybe more to Professor Garben. So is there a convincing theory now you spoke about national constitutional circles? So is there a convincing theory of relative primacy that can offer as an alternative to the Court of Justice or some ground for discussion? And second point you mentioned at some point maybe here is a bit more controversial. The fact that absolute primacy does not enjoy full legitimacy from the treaties and I think we know what that means. But speaking about legitimacy and law is always difficult. And then do you think that if we flip the side, national constitutional courts, do they have the full legitimacy to set the boundary of your law? And according to that answer then maybe the conflict that we have to acknowledge in federated systems, maybe the conflict, the hypothetical conflict is the source of legitimacy in both its ways. Thank you. Can we take one more question, but it better be short and it's not an excuse to ask two questions, just please. And then the answer and we go for a break. Thank you for your presentation. I'm Elena Sedanovaro from the European University Institute. My concern regards to something Lucia Serena Rossi was referring to by the end of her presentation, meaning that changed in EU law since these rulings of the Court of Justice were issued in the sense that it has become much more detailed. And maybe as one American professor once said, even too big to read or too big to be interpreted by the ECJ under the principle of primacy. So my question could be or two related questions. Are we missing a distinction between principles, rules and standards in EU law? And if so, what would the implications be for the principle of primacy and for the competencies of the Court of Justice? Thank you. Thank you very much. Professor Garbin, you have the floor for two minutes. Thank you very much. So I would like to, first of all, clarify that I think there are very good reasons for primacy and I would vote for it. Actually, I did vote for it in the Netherlands when there was a referendum on the constitutional treaty where, contrary to now, indeed, as Judge Rossi has expertly said, the primacy clause was in the actual treaty in Article 6 very prominently up front. I was outvoted. That constitutional treaty failed, which I think was a tremendous pity. But I do have a problem with how then in the very intergovernmental, not very inclusive, and by many people, I think, criticized way of how the Lisbon Treaty then basically still took over the most important elements of the constitutional treaty, despite its running into popular contestation. Then in Article, in Declaration 17, takes out primacy from the Court Treaty and hides it in a non-binding declaration. And interestingly, in that transfer, the principle indeed becomes even more powerful because in Article 16 of the draft constitution, you could still read that it was conditional on the principle of conferral, which would leave open the sense that national courts would have competence on that. But in Declaration 17, you're of course entirely right, Judge, that there it is a complete acceptance of what the Court has said. But it's a non-binding declaration, as you say. It's a very ambiguous legal state of affairs. I think that, and that links to your excellent question, what I'm trying to do, apart from provoking everybody, is to put the focus on what the source of authority is in a constitutional democracy, and that is the people. So no, it's not actually ultimately the national constitutional courts in my personal view either. It's not even the government. It's the people who hold this power. I think there is legitimate ambiguity on where primacy lies and what it means. And I think the people have not clearly decided on it one way or another. And I fear this is a thing we may have to face. I'm not a fan of referendums, but somehow this is, I think, a bit of a festering wound. And as a pro-European who would love to have an EU constitution which declares primacy proudly and unequivocally, I do think it's something we have to see. So I think take my comments in that kind of spirit as a pro-European who is actually committed to primacy in the end. Thank you so much. Now that we have established that we need someone who brings order in all this, and this is the European Court of Justice, it's difficult to not ask you a judge whether you want to have the last word before we go to coffee at least for this panel. Do you want that? To make it. To maybe just, you know, to pitch in one more thought, or are you? I had the question. Please answer the question. Just the question, but I confess that I didn't understand. The question was the difference between principles and acts. I don't understand. Can you repeat your question, please? I don't want to insist. I mean, I think that we had a very rich debate with Sasha. And as I teach a college review at the seminar, I will do it on the premise because I had to balance with the students in Bruce. So we get a short question and the repetition and the spread. Can you resume? Yes, just what? Yes, what I was saying is that maybe since the 1970s, the nature of you law has changed in the sense that it is including so many details inside the pieces of legislation. And so an example would be the rulebook for banking services, the capital requirement directive regulations and whether the Court of Justice is entitled. I mean, of course entitled, but whether it has standing for interpreting. Okay. Thank you. Well, of course, the law evolves and evolves because legislators made it evolving. So legislators of the council and the parliament and the court interpreted the court arrives before. So it's not the court changer, the nature. And I don't, I don't know. Yes, the nature of the law was changed after the revision, the amendment of the treaties, the founding treaties, because when a treaty, when the treaties introduced policies that were outside the competence of the U and then they were inside things too. For instance, European are a warrant or consumer protection. If you read the original treatises and nothing was there. So it is true that the law evolves. I'm sorry. We cannot have a bilateral exchange because I think it is time that we close. There is a coffee break and especially also to have this kind of further conversation. Thanks a lot.