Constitutional Court Vs Supreme Court

SYMPOSIUM
Constitutional courts versus

supreme courts
Lech Garlicki*
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Constitutional courts exist in most of the civil law countries of Westem Europe, and in
almost all the new democracies in Eastem Europe; even France has developed its
Conseil Constitutionnel into a genuine constitutional jurisdiction. While their
emergence may be regarded as one of the most successful improvements on traditional
European concepts of democracy and the rule of law, it has inevitably given rise to
questions about the distribution of power at the supreme judicial level. As constitutional
law has come to permeate the entire structure of the legal system, it has become
impossible to maintain a firm delimitation between the functions of the constitutional
court and those of ordinary courts. This article looks at various conflicts arising
between the higher courts of Germany, Italy, Poland, and France, and concludes that,
in both positive and negative lawmaking, certain tensions are bound to exist as a
necessary component of centralized judicial review.
1. The Kelsenian model: Parallel supreme jurisdictions
1.1 The model

The centralized Kelsenian system of judicial review is built on two basic assu-
mptions. It concentrates the power of constitutional review within a single
judicial body, typically called a constitutional court, and it situates that court
outside the traditional structure of the judicial branch. While this system
emerged more than a century after the United States’ system of diffused review,
it has developed—particularly in Europe—into a widely accepted version of
constitutional protection and control.1 Today, constitutional courts exist in
most of the countries of Western Europe that have civil law legal systems, with
the Netherlands and the Nordic countries the major exceptions. Constitutional
*Judge of the European Court of Human Rights; former judge of the Constitutional Tribunal of Poland.
Email: lech.garlicki@echr.coe.int
1
Louis Favoreu, Constitutional Review in Europe, in CONSTITUTIONALISM AND RIGHTS 46 (Louis Henkin &
Albert J. Rosenthal, eds., Columbia Univ. Press 1989). In this context, Favoreu warns against too
hasty generalizations and recalls the famous statement of Hans Kelsen: “[i]t is impossible …
to propose a uniform solution for all possible constitutions: constitutional review will have to be
organized according to the specific characteristics of each of them.” Id., at 51.
© The Author 2007. Oxford University Press and New York University School of Law. 44
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I•CON, Volume 5, Number 1, 2007, pp. 44–68 doi:10.1093/icon/mol044
Garlicki | Constitutional courts versus supreme courts 45
courts also exist in almost all the new democracies in Eastern Europe, with the
exception of Estonia.2 Even France, traditionally reluctant to accept any form
of judicial review of legislation, has developed its Conseil Constitutionnel into a
genuine constitutional jurisdiction.3
It is not necessary in this article to discuss why the European countries were
unable or unwilling to adopt the United States model of judicial review.
As Mauro Cappelletti has observed,4 the main reasons lie in the profound differences
in the political and constitutional culture on both sides of the Atlantic Ocean. The

centralized system of judicial review corresponds better to the European under-
standing of separation of powers, to the civil law approach to the role of judicial
precedent, and, last but not least, to the authority of the traditional civil law courts
and the psychology of their judges.5 Additionally, in many of those European coun-
tries in which the judicial review was adopted as one of the democratizing measures
following a period of authoritarian rule, the existing courts were unable to offer
adequate guarantees of structural independence and intellectual assertiveness.
Thus, the emergence of a separate constitutional court may be regarded as
one of the most typical features of Continental constitutionalism. It may also be
regarded as one of the most successful improvements on the traditional
European, parliament-oriented concepts of democracy and rule of law. It is no
wonder that countries elsewhere in the world, particularly in Latin America,
also became attracted to the Kelsenian model of judicial review.
However, every success has its price. Centralized in a newly established
constitutional court, judicial review usually was more responsive to ideas that
had already taken root in democratic countries. At the same time, however,
the new constitutional courts had to find their place within the judicial structures
of their own countries. It is a characteristic of the tradition of almost all civil law
countries that there are at least two parallel supreme courts: one for civil and
criminal cases and one for administrative cases. Constitutional courts entered
the game as another, new partner. Inevitably, questions emerged about how
2
See, e.g., LA JUSTICE CONSTITUTIONNELLE EN EUROPE CENTRALE [CONSTITUTIONAL JUSTICE IN CENTRAL EUROPE]
[Marc Verdussen ed., Emile Bruylant 1997]; HERMAN SCHWARTZ, THE STRUGGLE FOR CONSTITUTIONAL
JUSTICE IN POST-COMMUNIST EUROPE (Chicago Univ. Press 2002); CONSTITUTIONAL JUSTICE, EAST AND WEST:
DEMOCRATIC LEGITIMACY AND CONSTITUTIONAL COURTS IN POST-COMMUNIST EUROPE IN A COMPARATIVE PERSPEC-
TIVE (Wojciech Sadurski ed., Kluwer 2002).
3
France is the only European country in which constitutional adjudication takes the form, almost
exclusively, of a preventive review. Except for the disputes related to the distribution of lawmaking
competences between the parliament and the cabinet (FR. CONST. art. 37, sec. 2), the Conseil
Constitutionnel only has jurisdiction to review a statute before it has been promulgated.
4
MAURO CAPPELLETTI & WILLIAM COHEN, COMPARATIVE CONSTITUTIONAL LAW 76–83 (Bobbs-Merrill 1979);
Favoreu, supra note 1, at 44–46.
5
But see ALAN R. BREWER-CARIAS, JUDICIAL REVIEW IN COMPARATIVE LAW 128–131 (Cambridge Univ.
Press 1989).
46 I•CON January 2007 Vol. 5: 44
judicial power should be distributed between the old and the new courts. Not
surprisingly, it soon became clear that it would be very difficult to develop
a commonly accepted model of cohabitation at the supreme judicial level.
1.2. Delimitation of jurisdictions

The general idea of delimitation appears relatively simple. The resolution of all
cases and controversies of a constitutional dimension should be monopolized
within the constitutional court, whereas the resolution of all cases and contro-

versies involving the application of ordinary legislation (and, in particular, of
the different “codes”) should belong to the exclusive province of the ordinary
courts (and, ultimately, to the supreme court). This seemed to be Kelsen’s ini-
tial idea. The first version of the 1920 constitution of Austria limited the pow-
ers of the constitutional court to the abstract review of legislation6 and did not
provide for any direct links between the judicial application of statutes and the
jurisdiction of the constitutional court. However, within a decade a procedure
for the incidental review of statutes by the constitutional court was introduced
in Austria.7 Since then, different combinations of abstract and incidental
review of statutes have become a common feature of all the constitutional
courts gradually emerging in Europe, the French Conseil Constitutionnel being
the only exception. But the most radical departure from the idea of the separa-
tion of jurisdictions emerges with the procedures for constitutional complaint
(Verfassungsbeschwerde or amparo), introduced, at first, in Austria (albeit in a
limited form) and later adopted (in a full version) in Germany, in Spain, and in
several of the new democracies of Central and Eastern Europe.8 Both proce-
dures—incidental review and the constitutional complaint—modified the idea
of the separation of judicial functions in this way: they invite the constitutional
courts to participate in the adjudication of individual cases by ordinary juris-
dictions, either by resolving preliminary questions of the constitutionality of
statutes or by reviewing the constitutionality of final judicial decisions.
6
In this procedure, the right to bring the case before the constitutional court is reserved for the
highest state bodies and officials (the president of the republic, the cabinet, the ombudsman),
groups of members of parliament (i.e., parliamentary opposition), and similar bodies. The constitu-
tionality of a statute is examined in abstracto, not in the context of any actual case.
7
This procedure is based on referrals of so-called constitutional questions by ordinary courts to the
constitutional court. In most systems, if an ordinary court finds that a statutory provision that it
has to apply in a concrete case is unconstitutional, it must refer the question of constitutionality.
8
This is the only procedure allowing an individual access to the constitutional court. A person
who already has lost his or her case before ordinary courts can complain before the constitutional
court that their constitutional rights have been violated. In some systems (e.g., Poland), a com-
plaint can only be directed against the legal rule that determined the judicial or administrative
ruling in the case. In other systems (e.g., Germany and Spain), a complaint can also be directed
against the ruling itself. See Brunner, infra, note 58.
Thus, even from a procedural perspective, it has never been possible to pro-
vide for a truly genuine separation of jurisdictions; in almost all the countries
that decided to establish a separate constitutional court, this court’s powers
eventually intervened in some areas traditionally controlled by the supreme
court. However, the problem remained somewhat hidden as long as—accord-
ing to the European tradition—national constitutions were regarded mainly as
political instruments rather than as the supreme law of the land. Thus, judicial
bodies had only a limited competence to intervene in constitutional/political

controversies. Furthermore, at the beginning of the twentieth century, only a
few countries were ready to have their constitutions incorporate a developed
catalogue of individual rights. Some, such as Austria or France, concentrated
their regulations on governmental structures; others, Weimar Germany, for
example, limited the constitutional enforceability of their bills of rights. As a
consequence, ordinary courts had only very occasional opportunities to apply
constitutional provisions when deciding civil (administrative) or criminal
cases, and the constitutional court—if it existed at all—had even fewer oppor-
tunities to decide cases related to the legal status of an individual.
1.3. The judge-made constitution

This factual separation of jurisdictions began to fade after World War II. The
authors of the postwar reconstruction realized the importance of both the
legal authority of the constitution and the enforceability of fundamental rights.
New constitutions provided, on the one hand, for comprehensive bills of rights and,
on the other, for the establishment of constitutional courts vested with adequate
powers to enforce those bills of rights. This fundamentally changed the locus in
which the constitutional provisions were to be applied. Once these provisions per-
taining to individual rights were perceived as binding legal norms and once proce-
dures for invoking those rights were operational, it was inevitable that constitutions
would assume a more prominent role in the adjudication of individual cases and
controversies. This new role for national constitutions has had three important
consequences with regard to the structure and functioning of the judicial branch.
The first is related to the transformation of the very nature and scope of the
constitution. The increasing number of cases submitted to the new constitu-
tional courts requires that they find adequate and convincing answers in consti-
tutional texts. Those texts, however, are seldom very specific; particularly in the
field of individual rights, constitutional provisions were necessarily drafted
in general and value-oriented language. Therefore, constitutional adjudication
entails a much greater degree of creativity than is typically seen in the tradi-
tional process of the judicial application of statutes. As a result, a very rich con-
stitutional case law begins to accompany the original text of the constitution
and, gradually, that case law becomes more relevant (not to say more authorita-
tive) than the constitution’s original written norms. Constitutional case law
(and not the formal amendment procedure) assumes the task of adjusting con-
stitutional norms to changing political and social contexts and of developing
those norms far beyond the originally intended scope. A so-called judge-made
constitution begins to supplement (or, sometimes, even to replace) the written
constitution. Since constitutional case law results mainly from the decisions of
the constitutional court, it soon becomes obvious that the constitution may be
applied only through application of the jurisprudence of that court. This process,
well known in U. S. constitutional history, has surfaced in almost all those
European countries that managed to transform their constitutions into genuine
supreme laws of the land. Clearly, there have always been disputes as to the

legitimacy of judicial constitution making. Nonetheless, such a process indisput-
ably has taken place (and still is taking place) in most European democracies.
Second, the process of constitutional adjudication focuses, usually, on exam-
ining whether a particular legislative provision or judicial decision is in con-
formity with the constitution. Those provisions or decisions belong to different
branches of law. Thus, in the vast majority of cases, the constitutional court
goes beyond the traditional realm of constitutional law, visiting (some would
say invading) other branches of law.9 In particular, the court has to clarify what
the constitution requires or forbids with respect to the legislative regulation of
particular matters. This means that the court must define constitutional “com-
ponents” with respect to the content and approach of specific areas of law. This
process, known as “constitutionalization of specific areas of law,”10 pertains
most typically to criminal procedure as well as to various issues of property
rights, family law, taxation, and social benefits. In all those and many other
areas, the constitution—as defined by the case law of the constitutional court—
provides for norms and rules of a higher order, by which I mean that they are
binding both on the “ordinary” legislature as well as on the “ordinary” judge.
Thus, with respect to all areas of law, constitutional courts arrogate to them-
selves a part of each of the existing governmental monopolies, namely, the power
of the parliament to legislate and that of the supreme court to interpret and apply
the laws made by the parliament. In particular, the interpretative function is of
paramount importance for the relations within the judicial branch. The decision
whether a statutory provision is constitutional cannot be taken before the real
meaning of that provision has been established. This must be done by the consti-
tutional court. Ordinarily, that court would follow the interpretation already
9
As András Sajó observes, “[c]onstitutional adjudication does not primarily affect the legislature
but it does the ordinary administration of justice, and in practice, it extends constitutionalism
(primarily through the protection of individual rights) to areas beyond public law, to criminal,
administrative and private law.” ANDRÁS SAJO, LIMITING GOVERNMENT: AN INTRODUCTION TO CONSTITUTION-
ALISM 243 (Central Eur. Univ. Press 1999).
10
See, e.g., LA CONSTITUTIONALISATION DES BRANCHES DU DROIT [THE CONSTITUTIONALIZATION OF AREAS OF THE
LAW] (Bertrand Mathieu & MichelVerpeaux eds. (Economica 1998); Robert Alexy, Verfassungsrecht
und einfaches Recht—Verfassungsgerichtsbarkeit und Fachgerichtsbarkeit [CONSTITUTIONAL LAW AND OTHER
LAW—JURISDICTION OVER THE CONSTITUTION AND JURISDICTION OVER SPECIFIC SUBJECT MATTERS], in 61 VERÖFFENTLI-
CHUNGEN DER VEREINIGUNG DER DEUTSCHEN STAATSRECHTSLEHRER [PUBLICATIONS OF THE ASSOCIATION OF GERMAN
PUBLIC LAW TEACHERS] 12–14 (de Gruyter 2002) (hereinafter, “VVDStRL”).
established in the jurisprudence of the supreme court. Sometimes, however, the

constitutional court may be confronted with multiple possible interpretations
and may be tempted to indicate which one is constitutionally correct.
Third, and finally, once constitutional norms, principles, and values become
relevant to the application of specific statutes, they must be applied not only by
the constitutional court, which usually intervenes at the very last instance, but
also—and primarily—by all other courts and judges.11 The constitutionalization
of specific branches of law means that the normative content of each of those

branches is now determined not just by particular statutes and codes but by the
pertinent constitutional provisions and the existing constitutional case law.
An additional component, at least in Europe, derives from the supranational
human rights instruments as developed in the case law of the European Court
of Human Rights and the European Court of Justice. This extra element radi-
cally transforms the functions and the responsibilities of an ordinary judge.
The judicial process no longer is limited to the two-dimensional application of
statutory norms to the facts of the case. In the modern constitutional state,
each and every judge must first establish the content of the relevant norm,
and this requires the simultaneous application of statutory, constitutional, and
supranational provisions. While statutory provisions form most obvious and
useful basis for decision, their binding authority soon became limited since—in
practically every case—a question may arise whether or not those provisions
conform to the higher law. It is the ordinary judge who, at least in the first instance,
must produce an answer, and such an answer often requires the judge to find the
correct interpretation of both the statutory provision and the constitutional (or
supranational) norm. In effect, it is not only the constitutional court but also the
supreme court that interprets the constitution, just as it is not only the supreme
court but also the constitutional court that interprets ordinary statutes.
The foregoing developments demonstrate that no genuine separation of consti-
tutional jurisdiction and ordinary jurisdiction is possible in a modern Rechtsstaat.
The new role of constitutional norms may be beneficial for the protection of indi-
vidual rights and liberties, but it also complicates, to a considerable extent, rela-
tions within the judicial branch. There are several areas in which both jurisdictions
have to act in parallel, and only a very few constitutions provide for the clear delim-
itation of their tasks. No wonder that, from time to time, positions taken by the con-
stitutional court may differ substantially from those preferred by the supreme court.
The situation requires both parties to establish some reasonable mode of coexist-
ence; however, it also produces numerous conflicts and disputes. In other words,
constitutional courts and supreme courts are traveling on the same road, but not
necessarily according to the same rules and not necessarily in the same direction.
11
Werner Heun, Verfassungsrecht, id. at 109.
2. Experience: Some examples of judicial cohabitation

It has not always been easy to elaborate a modus vivendi for the courts. In most
countries, the constitutional courts emerged long after the supreme courts had
already established their authority. It was quite natural that the lower courts
were ready to accept that authority and to follow the case law of the supreme
court. Thus, in case of a conflict with the supreme court, the arguments of the
constitutional court had to be genuinely convincing if they were to be accepted

by the lower courts.
Almost all countries of Europe have experienced different types of conflicts
between their higher courts. It may be useful first to recall some examples and,
only later, to propose some conclusions of a general nature.
2.1. Germany
The German Constitutional Court, the Bundesverfassungsgericht, was the first
entirely new constitutional jurisdiction established in postwar Europe. It emerged
as a total newcomer, since no developed procedures for judicial review had ever
existed in German constitutional history. It encountered the five branches of spe-
cialized courts already well established in the pre-Nazi tradition of the German
Rechtsstaat, headed by five federal supreme courts. The situation of the Constituti-
onal Court was, therefore, difficult; at the same time, however, the other jurisdic-
tions were in a process of reconstruction and, unlike the new Constitutional
Court, had to overcome the failures of their immediate past. In addition, the
climate of postwar reforms offered the new Court a considerable chance of suc-
cess, especially as one of the basic premises of the new system was the recogni-
tion of the supremacy of the Constitution. The Court was meant to be the most
important judicial instrument in preserving that superiority; accordingly, it
was vested with powers broader than its Austrian or Italian counterparts. In
particular, the Federal Constitutional Court Act12 introduced the procedure by
which constitutional complaints could be lodged by individuals against final
judgments of the specialized courts.
Within the next ten years, the German Constitutional Court managed to find
its way to the very summit of the new constitutional system. It began by estab-
lishing its structural independence: first, with respect to the executive branch;13
12
Gesetz über das Bundesverfassungsgericht vom 12. März 1951 [Statute on the Federal Constitu-
tional Court in the version of 12 March 1951], BVerfGG, BGBl. I at 243.
13
Initially, the Constitutional Court (like all other courts in Germany) was included in the admin-
istrative and budgetary structure of the Federal Ministry of Justice. In 1952, the Court demanded
independence from the executive branch (so-called Statusdenkschrift: see 6 JAHRBUCH DES OFFENTLICHEN
RECHTS 144 (1957)), and it has since managed to consolidate its position as a “constitutional organ
of the state.”
then, with respect to the supreme courts.14 Simultaneously, the Court began
to develop the concept of the direct applicability of the Constitution (its
provisions on fundamental rights) and to impose that concept on other seg-
ments of the judicial branch. The procedure of constitutional complaint
(Verfassungsbeschwerde), even if still lacking clear constitutional foundations,
emerged as an extremely effective tool. In two landmark decisions, Elfes (1957)15
and Luth (1958),16 the Court extended the applicability of constitutional com-
plaints to all the situations that entailed conflicts with a general right to “indi-

vidual liberty,” and it developed the concept that fundamental rights create an
objective order, organized around certain general values and principles.
Moreover, it was in this way, and in this context, that the Constitution acquired
a so-called radiation effect upon private law relations.
There is no need to recall those well-known developments in detail. It is
sufficient to note that they had a profound impact on relations within the
judicial branch. As recently summarized by Robert Alexy, the Court’s ap-
proach to the interpretation of fundamental rights, or Grundrechte, resulted in
a gradual constitutionalization of the whole legal system. The Constitutional
Court as well as the specialized courts participated in that process, and their
functions could not but overlap to a considerable degree.17
14
The first important controversy arose around the procedure of incidental review of constitution-
ality. The FCC Act provided that any court could, at any stage of the judicial process, refer a consti-
tutional question to the Constitutional Court but only via an appropriate supreme court, which
had the right to submit its own opinion on the question referred by the lower court. In the practice
of the Bundesgerichtshof (the supreme court in civil and criminal matters) such opinions began to
take the form of all but complete judgments on constitutionality and were published in the official
collection of the Bundesgerichtshof’s decisions, sometimes before the Constitutional Court had
rendered its decision. In 1955, the Constitutional Court declared that the supreme courts were not
allowed to submit their opinions. In response, all five supreme court presidents addressed a note
of protest to the President of the Constitutional Court. Finally, in July 1956, the Federal Con-
stitutional Court Act was amended and the participation of supreme courts in the procedure of
judicial referrals was abolished. See Hans Joachim Faller, Bundesverfassungsgericht und Bundes-
gerichtshof, 115 ARCHIV DES OFFENTLICHEN RECHTS 189–192 (1990). Since then, it remains within the
discretion of the Constitutional Court to seek opinions from the supreme courts: see Renate
Jaeger & Siegfried Bross, Die Beziehungen zwischen dem Bundesverfassungsgericht und den ubrigen
einzestaatlichen Rechtsprechungsorganen [THE RELATIONSHIP BETWEEN THE FEDERAL CONSTITUTIONAL COURT
AND OTHER INDIVIDUAL STATE JUDICIAL ORGANS], 11 EUROPAISCHE GRUNDRECHTENZEITUNG 31 (2004).
15
Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] January 16, 1957, 6 Entsc-
heidungen des Bundesverfassungsgerichts [Decisions of the Federal Constitutional Court]
[BVerfGE] 32-45.
16
BVerfG, January 15, 1958, 7 BVerfGE 198-230.
17
Alexy, supra note 10, at 10–12.
No clear indication as to the delimitation of the functions and powers of those

courts could be found in the written text of the Basic Law. The legal doctrine sug-
gested several proposals, in particular, the concept of “specific constitutional
law” and the test for the lawmaking nature of judicial solutions of individual
cases.18 The jurisprudence of the Constitutional Court tacitly accepted those
“Formels”; none of them, however, managed to find a clear implementation in
the Court’s practice. The limits of review seem to be delineated mostly on a case-
by-case basis, and the initial optimism of the legal doctrine is giving place to cer-

tain resignation.19 While the Court keeps emphasizing that it must not act as a
Superrevisionsgericht (reexamination court), in practice, its review is far-reaching,
venturing even into the examination of whether a judicial assessment of facts
has been arbitrary. Nevertheless, only a tiny fraction of complaints are success-
ful.20 It demonstrates that, in reality, the Constitutional Court only rarely
quashes decisions of ordinary courts, assuming the role of a court of cassation.
The cassation function of the procedure of constitutional complaint remains
less articulated: More significant is the “persuading” or “directing” function
whereby the Court rules on the manner of interpretation and application of
a particular fundamental right,21 and the specialized jurisdictions follow the
Court voluntarily. Thus, the direct application of the Constitution (of its
provisions on fundamental rights) is present in the decisions of all the
courts and judges. The Constitutional Court, while preserving the last word if a
controversy arises, no longer claims a monopoly over application of the
Constitution but, rather, acts as a coordinator of that process.22
18
So-called “Schumann’sche Formel” and “Heck’sche Formel”: see, e. g., Gerd Roellecke, Aufgabe
und Stellung des BVerfG in der Gerichtsbarkeit, in III: HANDBUCH DES STAATSRECHTS DER BRD 1225–1226
(Josef Isensee & PaulP. Kirchhof eds., C.F. Müller Verlag 2004),
19
Hans-Joachim Koch. Bundesverfassungsgericht und Fachgerichte [Federal Constitutional Court and
Courts for Specific Subject Matters], in RECHTSTHEORIE UND RECHTSDOGMATIK IM AUSTAUSCH [EXCHANGE
BETWEEN LEGAL THEORY AND LEGAL DOGMATISM] (Wildfried Erbguth, Friedrich Müller & Volker Neumann
eds., Duncker & Humblot 1999) 137. See also Jörg Berkemann, Das BVerfG und “seine” Fachgerich-
tsbarkeiten [The Federal Constitutional Court (BVerfG) and “its own” jurisdiction over specific subject
matters], 56 DAS DEUTSCHES VERWALTUNGSBLATT 1036 (DVBl 1966); Georg Hermes, VVDStRL, supra
note 10, at: 146.
20
As shown by Wolfgang Hoffmann-Riem (Nachvollziehende Grundrechtekontrolle. Zum Verh-
altniss von Fach- und Verfassungsgerichtsbarkeit [Monitoring of fundamental rights explained:
On the relationship between specific subject matter and constitutional law jurisdiction], 128 AoR
177 (2003) in 1999, a year when the Bundesgerichtshof issued some 7000 judgments, applicants
prevailed in only ten constitutional complaints against such judgments.
21
For example, the Court may declare that a law is “incompatible” (unvereinbar) with the Constitu-
tion, or that a law is “not yet” unconstitutional, or it may establish which interpretation of the
law is in conformity with the Constitution.
22
See, e.g., Gerhard Robbers, Fur ein neues Verhaltnis zwischen BVerfG und Fachgerichtsbarkeit
[Toward a new relationship between the Federal Constitutional Court (BVerfG) and the jurisdiction over
specific subject matter], 51 NEUE JURISTISCHE WOCHENSCHRIFT 938 (1998).
At the same time, however, there is seemingly endless debate as to the limits
of the Court’s review of the specialized jurisdictions. Already the Luth and Elfes
decisions, while praised by many constitutionalists, have evoked criticism as
well. This criticism has persisted for the five decades that followed these rulings
and is clearly still present in current discussions.23 From time to time, it is also
reflected in the jurisprudence of the specialized courts. It is true that instances of
an open refusal to follow the Constitutional Court are exceptional,24 and that (as
is not the case in some other countries) the German Court is adequately equipped

to impose its legal positions on other jurisdictions. Nevertheless, there are exam-
ples of divergences that have remained unresolved for several decades,25 as well
as examples of occasional collisions, sometimes provoking heated exchanges
of views.26 Although the modus vivendi between the supreme courts appears
more calm and predictable in Germany than in some other countries
and although the German Constitutional Court appears to be one of the most
23
Some authors observe that “criticism of the Court has recently developed into a hitherto un-
known dimension”: see Philip Kunig, VVDStRL, supra note 10, at 36; and, in particular, note the
emergence of a new “zivilistische Fundamentalismus.” Koch, supra note 19, at 165. See also
Stephan Korioth, Bundesverfassungsgericht und Rechtsprechung (Fachgerichte) [Federal Constitutional
Court and Jurisprudence (Courts for Specific Subject Matters)], in FESTSCHRIFT 50 JAHRE BUNDESVERFAS-
SUNGSGERICHT [FESTSCHRIFT: 50 YEARS OF THE FEDERAL CONSTITUTIONAL COURT] 57 (Peter Badura & Horst
Dreier eds., Paul Siebeck 2001), noting a growing number of critics of the Constitutional Court.
24
For some examples, see Jaeger & Bross, supra note 14, at, 12.
25
One of them relates to the interpretation of the “expropriation” clause (article 14 of the Basic
Law). In 1952, the Bundesgerichtshof decided that article 14 allows the right to compensation to
be extended, as well, to situations of “de facto expropriation” (“enteignungsgleiches Eingriff”),
even if such extension had not been provided at the statutory level. The Constitutional Court has,
on numerous occasions, hinted that it was not ready to support such an interpretation of article
14. It was, however, only in 1981 that the Court clearly decided that article 14 could not serve as
an adequate legal basis for granting compensation in such cases. The Bundesgerichtshof had to
accept this, but, unwilling to forsake its own jurisprudence, it established that the right to compen-
sation results from principles of customary law. It eliminated the constitutional dimension (and
thus the direct jurisdiction of the Constitutional Court). See Hans Joachim Faller, supra note 14, at
199–202. Quite recently, the Constitutional Court experienced some problems with assuring full
compliance of the penal courts in respect to the length of detention preceding a final conviction, in
particular, postconviction by the first instance court. The local courts have not always been ready
to follow the position of the Constitutional Court; in consequence, the Court had to quash their
decisions and to remind them of the binding nature of its constitutional interpretation. See, in
particular, the decisions of BVerfG, February 22, 2005, 2 BvR 109/05, http://www.bverfg.de/
entscheidungen/rk20050222_2bvr010905.html (last visited Oct. 16, 2006), 1–47 and BVerfG,
December 5, 2005, 2 BvR 1964/05, http://www.bverfg.de/entscheidungen/rk20051205_
2bvr196405.html (last visited Oct. 16, 2006), 1–109.
26
See examples quoted by Faller, supra note 14, at 202–206; Kunig, VVDStRL, supra note 10, at
37; Roellecke, supra note 18, at 1230. See also the judgment of the Constitutional Court of
6 December 2005, BVerfG, December 6, 2005, 1 BvR 1905/02, http://www.bverfg.de/
entscheidungen/rs20051206_1bvr190502.html (last visited Oct. 16, 2006), 1–72.
powerful jurisdictions in Europe, the problem of relations within the judicial

branch is nonetheless far from a generally accepted solution.
2.2. Italy
Intercourt relations in Italy are more temperamental. The first important con-
troversy emerged almost immediately at the conclusion of the eight-year proc-
ess creating the Italian Constitutional Court, the Corte Costituzionale. To make
a long story short,27 it suffices to note that the Italian system of judicial review

does not recognize the procedure of constitutional (that is, individual) com-
plaint and operates, first of all, by means of “legal questions” submitted to the
Court by the courts of general jurisdiction. Such referrals may pertain only to
those statutory provisions that would form a basis for the court’s resolution of
a pending case. Once such a question is submitted, the Constitutional Court
decides on the constitutionality of the referred provision, and the Court’s rul-
ing becomes part of the law of the case. This has always been clear with regard
to a “simple” ruling of unconstitutionality, since such a ruling invalidates the
statute with a universally binding effect. However, the Constitutional Court,
since its early years, has tried to avoid rulings of unconstitutionality. Rather
than invalidate laws, the Court has sought to develop so-called interpretative
rulings in which a decision on the constitutionality of law is taken not in abso-
lute terms but in relation to a particular interpretation of the provision at issue.
Two types of interpretative decisions have emerged in the practice of the
Constitutional Court.28 Those known as “admission” (sentenza interpretativa di
accoglimento) state that the provision, if read in a certain way, is unconstitu-
tional. Since this excludes only one possible interpretation, the law remains
formally intact; only the interpretation that has been declared unconstitutional
may no longer be applied. Those of “rejection” (sentenza interpretativa di rigetto)
state that the provision, if read in a certain way—and only in this way—is con-
stitutional. This means that from multiple logically possible meanings of the
text, the Constitutional Court designates one that conforms to the Constitution
and rejects all others. The problem is that for the Constitutional Court to issue
an interpretative ruling, it must first establish the interpretation of the provi-
sion under review. If the interpretation adopted by the Constitutional Court
differs from the one established in the jurisprudence of the ordinary courts, the
authority of the Constitutional Court’s ruling might be placed in doubt.
27
See, e.g., John Henry Merryman & Vincenzo Vigoriti, When Courts Collide: Constitution and Cassa-
tion in Italy, 15 AM. J. COMP. L. 665–686 (1967).
28
See especially GUSTAVO ZAGREBELSKY, LA GIUSTIZIA COSTITUZIONALE [CONSITITUTIONAL ADJUDICATION]156
(Il Mulino 1988); THIERRY DI MANIO, LE JUGE CONSTITUTIONNEL ET LA TECHNIQUE DES DECISIONS “INTERPRETA-
TIVES” EN FRANCE ET EN ITALIE [THE CONSTITUTIONAL JUDGE AND THE TECHNIQUE OF “INTERPRETATIVE” DECISION IN
FRANCE AND ITALY] (Economica 1997); Enzo Cheli & Filippo Donati, Methods and Criteria of Judgment
on the Question of Rights to Freedom in Italy, in HUMAN RIGHTS AND JUDICIAL REVIEW: A COMPARATIVE
PERSPECTIVE 235–236 (David M. Beatty ed., Springer 1994).
In 1958, the Italian Court of Cassation decided certain questions related to the
procedure of “summary investigation” and ruled that some fair-trial guarantees
need not have full application to that type of proceeding. In February 1965, the
same issue was submitted to the Constitutional Court, which refused to declare
the contested provisions unconstitutional and spelled out how those provisions
should be interpreted by the criminal courts. However, this interpretation
required the Court of Cassation to revise its 1958 jurisprudence. In April 1965,
the Court of Cassation refused to do so, rejecting the approach adopted by the

Constitutional Court. Two months later, the latter Court—using the technique of
interpretative admission—responded by declaring the contested provision
unconstitutional insofar as it made possible the interpretation adopted by the
Court of Cassation. This settled the question of constitutionality; at the same time,
however, it remained unclear to what extent the Constitutional Court’s decision
was retrospectively applicable. At the end of 1965, the Court of Cassation decided
that the applicability of the Constitutional Court’s ruling was only prospective.
“The debate, which caused uproar and led to a very serious conflict between the
two courts, was resolved by the Judgment No. 49/1970 of the Constitutional
Court, which withdrew and acknowledged that the issue of retrospective applica-
tion of decisions on illegality is not a matter of constitutional law.”29
In the decades that followed, the problem of interpretative judgments, while
not resolved in a clear manner, lost most of its pertinence. Both courts tried to
avoid open conflicts. On the one hand, the growing authority and importance
of the Constitutional Court prompted the Court of Cassation to accept its inter-
pretations of statutes. On the other hand, the Constitutional Court began to
develop new techniques of constitutional interpretation, in particular, the “liv-
ing law” concept, which assumes that the Constitutional Court does not review
contested legal provisions in the abstract but, rather, as they have been already
applied in the case law of other superior courts. The constitutionality of legal
provisions is also assessed in relation to their content as established within the
existing legal reality. In other words, the Constitutional Court accepts the
Court of Cassation’s responsibility for statutory interpretation, but it reserves
for itself the last word as to whether that interpretation remains within con-
stitutionally prescribed limits. At the same time, both judicial case law and
legal doctrine agree that interpretative decisions on constitutionality do not
have a universally binding authority and are effective “only insofar as the
Constitutional Court’s position is persuasive.”30 It means that, at least with
29
Guiseppe La Greca, Current Situation and Planned Reforms in the Light of Italian Experience, in THE
SUPREME COURT AND THE CONSTITUTIONAL COURT: THIRD MEETING OF PRESIDENTS OF SUPREME COURTS OF CENTRAL
AND EASTERN EUROPEAN COUNTRIES 9 (Council of Europe 1997).
30
Giancarlo Rolla & Tania Groppi, Between Politics and the Law: The Development of Constitutional
Review in Italy, CONSTITUTIONAL JUSTICE, supra note 2, at 151.
respect to the interpretation of the living law, it is, in fact, the Court of Cassation
that retains the last word.31
A recent controversy between the two courts illustrates that their modus viv-
endi remains fragile and, to a large extent, depends on the goodwill and self-
restraint of both parties. In this instance, the courts clashed over the
interpretation of article 303 of the Code of Penal Procedure (specifically, in con-
nection with the calculation of the maximum term of preliminary detention). In
1998, the Constitutional Court declared that article 303 must conform to arti-

cles 3 and 13 of the Constitution and indicated the correct interpretation of the
code.32 The Court of Cassation, doubting the correctness of that interpretation,
directly challenged33 the constitutionality of article 303 before the Constitutional
Court. The Constitutional Court dismissed the request, reiterating that article
303 should be interpreted in the manner previously stated, under which
it remained constitutional.34 The Court of Cassation refused to follow that inter-
pretation, observing:
The Constitutional Court’s interpretative decisions of rejection do not

have an erga omnes effect. They are, in this regard, distinct from findings
of the constitutional illegitimacy of a provision under review. That is why
the former contain only a negative message [holding that no unconsti-
tutionality has been established] and are determinative only for the case
on which the question of constitutionality has been referred. In all other
cases, the ordinary judges retain their power and duty (provided for in
Article 101 sec. 2 of the Constitution) to interpret, autonomously, the
content of legal norms.35
31
Alessandro Pizzorusso, Présentation de la Cour constitutionnelle italienne [Overview of the Italian
Constitutional Court], 6 LES CAHIERS DU CONSEIL CONSTITUTIONNEL 31 (1998).
32
Corte cost., 7 July 1998, n.292 (subsequently confirmed by decisions of 19 Nov. 1999 n.429,
19 Jun. 2000 n.214 and 22 Nov. 2000 n.529).
33
Corte cost., cass., 25 July 2002 n. 394.
34
Corte cost., cass., 30 June 2003 n.243.
35
“Le decisioni interpretative di rigetto della Corte costituzionale non hanno efficiacia erga omnes,
a differenza di quelle dichiarative dell’illegittimita costituzionale di norme, e pertanto determinano
solo un vincolo negativo per il giudice del procedimento in cui e stata sollevata la relativa ques-
tione. In tutti gli altri casi il giudice conserva il potere-dovere di interpretare in piena autonomia le
disposizioni di legge a norma dell’art 101 comma 2 Cost …” Corte Cass. 31 Mar 2004, n.23016.
See CASSAZIONE PENALE 2710 (2004). See also commentaries of Guiseppe Romeo, id., at 2715–2718,
and Paolo Antonio Bruno, id., at 2718–2746. The Constitutional Court had to yield and, in the
decision of Corte cost., cass., 22 July 2005 n.229, it found article 303 unconstitutional as inter-
preted by the Court of Cassation. See CASSAZIONE PENALE 3246 (2005); Guiseppe Romeo, Meglio tardi
che mai? [Better late than never?], id., at 3254–3259. Thus, the Constitutional Court affirmed the
concept of “living law” and left the resolution of the problem to the legislature.
Fifty years of coexistence by the superior courts in Italy failed to produce a

clear pattern of relations, even if—in real life—the delimitation of their respec-
tive spheres of responsibility became well established. This situation is typical
of Italian political and legal culture, but it may also be due to two more-specific
factors. On the one hand is the predominance of incidental (concrete) review in
the procedures before the Constitutional Court. This means that the docket of
the Court remains largely dependent on the willingness of ordinary judges to
refer constitutional questions to it for a decision. On the other hand, the rulings

of the Constitutional Court precede the judicial resolution of the case upon
which a referral has been made. Hence, unless the Constitutional Court annuls
the law as unconstitutional, the ultimate application of that law belongs,
rather, to the ordinary courts—that is, to the Court of Cassation. A second fac-
tor is the absence of a procedure of constitutional complaint. It means that
the Constitutional Court has no direct power to review the constitutionality
of final judgments adopted by other jurisdictions, and that is why the Con-
stitutional Court may, from time to time, experience problems in convincing
the other superior courts to follow its legal positions.
2.3. Poland
The Constitutional Tribunal of Poland has been in existence since 1986 and
represents one of the best-established constitutional jurisdictions among the
“new democracies” of Europe.36 The Polish system of judicial review rests on
three basic procedures: abstract review, “legal questions” referred by ordinary
or administrative judges deciding individual cases, and constitutional com-
plaints that are lodged with the Tribunal once appellate procedures have been
exhausted. It is the abstract review procedure that has traditionally played the
most important role in the operations of the Constitutional Tribunal The pro-
cedure of constitutional complaint seems to have become ever more popular,
however, although it was only recently introduced by the 1997 Constitution
and only in a limited version.
The other superior courts in Poland are the Supreme Court and the High
Administrative Court, each exercising independent jurisdiction within its area
of competence. The Constitution determines, generally, the powers of the supe-
rior courts. However, at least two serious problems remain controversial in the
judicial practice.
The first is related to the very power of the judicial review. The Constitution
clearly provides that the Constitutional Tribunal is vested with the competence
to review ordinary statutes and other legal regulations and to annul them
in case of unconstitutionality or nonconformity with the international
instruments to which Poland is a party. Such decisions of the Tribunal have
an erga omnes effect and are final and universally binding, that is, also binding
on all other courts, the Supreme Court included.
36
See, e.g., the assessment of Schwartz, supra note 2, at 49.
While those powers of the Constitutional Tribunal have never been in doubt,
a controversy arose in the mid-1990s as to the role of other courts in reviewing
the constitutionality of statutes. Each court, when resolving an individual
case, has a right and a duty to consider whether the statutory provisions on
which judgment will be based are in conformity with the Constitution. Once a
judge, on a motion submitted by one of the parties or on his own initiative,
expresses doubts as to the constitutionality of such provisions, she may refer a
“legal question” to the Constitutional Tribunal. Once the Tribunal has taken

its decision, the referring judge must apply it to the case. The question is
whether the competence of an ordinary judge may go beyond referral and
include, as well, the possibility of independently determining the issue of con-
stitutionality. This is not contested with respect to the judge finding a disputed
provision constitutional. However, some judges and scholars are of the opinion
that ordinary courts also have a power of “incidental review”—meaning that
they may refuse to apply any statutory provision that is, in their opinion,
unconstitutional. According to that logic, the judge should refer the issue to
the Constitutional Tribunal only if the interpretation remains doubtful. But if
the judge has no doubts about the unconstitutionality of a statute, she has the
power simply to decide the case. Such “incidental” refusal to apply a statute
does not collide with the prerogatives of the Tribunal because it does not affect
the general validity of the statute and, hence, respects the Tribunal’s exclusive
power to annul unconstitutional statutes. While there have been few examples
of judgments (mainly coming from the Labour Law Chamber of the Supreme
Court) in which ordinary judges actually refused to apply statutes deemed
unconstitutional, among the other higher courts only the Constitutional
Tribunal has taken the uniform position that there is no constitutional basis for
such actions. The Supreme Court and the High Administrative Court still avoid
taking any definitive stand on the matter. Their case law accepts only that,
once the constitutionality of a statute has been determined in a judgment of
the Tribunal, this finding must be followed by all other courts and judges.37
This controversy illustrates the activist manner in which Polish superior
courts (or, at least, some of their judges) approach their role in constitutional
adjudication. It is not typical of countries in the region. This Polish “anomaly”
results from a combination of different factors: the original limitations on the
powers of the Polish Constitutional Tribunal, the scholarly orientation of the
Supreme Court’s personnel, and the tradition of independent application of inter-
national treaties by the Supreme Court and the High Administrative Court.38
37
For a more detailed presentation, see Lech Garlicki, Vingt ans du Tribunal constitutionnel polonais
[Twenty years of the Polish Constituional Tribunal], in MELANGES FAVOREU [Favoreu Collection] (Presses
Univ. Aix-Marseille, forthcoming 2006).
38
See an interesting comparison of Poland, Czech Republic, Slovakia and Hungary proposed by
Zdenek Kuhn, Making Constitutionalism Horizontal: Three Different Central European Strategies, in
THE CONSTITUTION IN PRIVATE RELATIONS: EXPANDING CONSTITUTIONALISM, 236–240 (András Sajó & Renata
Uitz eds., Eleven International 2005).
Until now, this has not produced any open conflicts with the Tribunal, and
examples of independent judicial refusal to apply “unconstitutional” statutes
remain isolated and limited to matters not yet decided by the Tribunal.
A more sensitive area of confrontation relates to the powers of statutory
interpretation. In principle, the application and interpretation of ordinary stat-
utes are the province of the Supreme Court and to the High Administrative
Court. However, in Poland, as in many other countries, the process of constitu-
tional adjudication necessarily involves the interpretation of statutory provi-

sions by the Constitutional Tribunal. Already in the mid-1990s, the Tribunal
had begun to develop the technique of “interpretative decisions,” which con-
firm that a contested provision is constitutional only if understood in a manner
prescribed in the operative part of the judgment.39 Almost immediately, a ques-
tion arose as to whether other courts and judges were bound to follow the
interpretations established by the Constitutional Tribunal. On two occasions,
in 1996 and 1997, the Supreme Court openly refused to apply interpretative
resolutions of the Tribunal, observing that, under the Polish Constitution, the
judges are bound “only by statute.” The Supreme Court’s position was that
other courts should apply interpretative resolutions of the Tribunal only when
they agreed with the latter’s interpretation.40
The same discussion continued under the 1997 Constitution, relating to the
interpretative decisions of the Constitutional Tribunal. There has been no case,
as yet, where the Supreme Court has refused overtly to accept an interpreta-
tion established by the Tribunal. But in numerous obiter dicta, the Supreme
Court judges, when discussing the authority of interpretative decisions, have
observed that—under the delimitation of competences established in the 1997
Constitution—they are not obliged to follow the Tribunal’s interpretation. On
the other hand, the Tribunal, on equally numerous occasions, has emphasized
that the Constitution allows for the use of “interpretative decisions,” and that
all courts and judges are required to apply such interpretations as may be
39
Initially, the Polish system had made a distinction between “interpretative decisions” and “inter-
pretative resolutions” of the Constitutional Court. The former represent a type of judgment on the
constitutionality of a statute and follow the Italian pattern of sentenza interpretative. The latter were
issued by the Constitutional Court in the exercise of its other competence, namely, the establish-
ment of “universally binding interpretation of statutes” (see GEORG BRUNNER & LECH GARLICKI, VERFAS-
SUNGSGERICHTSBARKEIT IN POLEN: ANALYSEN UND ENTSCHEIDUNGSSAMMLUNG 1986–1997 [CONSTITUTIONAL LAW
JURISDICTION IN POLAND: COLLECTED ANALYSES AND DECISIONS 1986–1997] ) 67–68 (Nomos 1999). It was
the exercise of that latter competence that first produced conflicts between the Constitutional Court
and the Supreme Court. The 1997 Constitution abolished the procedure of “interpretative resolu-
tions,” but, at the same time, it provided that the “judgments of the Constitutional Court (i.e., deci-
sions concerning constitutionality of statutes) are final and universally binding.” POLISH CONST. art.
190, § 1.
40
Resolution of February 21, 1995, I PZP 2/95 (OSNAPiUS – Jurisprudence of the Chamber of
Administration, Labour Law and Social Security, 1995, No. 17, item 214); judgment of May 14,
1996, III ARN 93/95 (OSNAPiUS 1996, No. 23, item 352).
included in the operative portion of a Tribunal judgment. At the same time, the
Tribunal adopted and developed the living law approach: once a clear interpre-
tation of a legal provision has already been established in the case law of the
Supreme Court (or the High Administrative Court), the Tribunal refrains from
making its own interpretation and assesses the constitutionality of the existing
interpretation. Nevertheless, there remains a significant area of potential con-
flict between the courts.41
There are two principal obstacles to the elaboration of a consistent modus

vivendi between the two Polish courts. On the one hand, the constitutional
delimitation of the competences of different courts is not clear. The authors of
the 1997 Constitution did not provide a solution; they were unwilling to accord
the Constitutional Tribunal a superior position within the judicial branch. As
a result, each of the courts can claim the same competences. On the other
hand, the Tribunal lacks a mechanism by which to impose its legal positions on
the other Courts. It is true that the Polish Tribunal, unlike its Italian homo-
logue, has the power to decide on constitutional complaints. Since such com-
plaints are admissible only after appellate procedures have been exhausted, the
Tribunal is usually confronted with judgments already made by the Supreme
Court or by the High Administrative Court. But the Polish version of constitu-
tional complaint remains limited; it does not allow for the possibility of directly
challenging the constitutionality of an individual judgment or decision. The
constitutional complaint may be raised only against the legal provision on
which an individual judgment is based. Thus, the Tribunal reviews the law per
se, but not the manner of its application in an individual case. Furthermore,
even when the Tribunal finds that the contested statute is, indeed, unconstitu-
tional, it does not automatically invalidate the individual judgments and deci-
sions that applied that provision. The party who prevails in the constitutional
complaint procedure must then petition the ordinary court to reopen his or
her case, and that court may not be ready to take into account all aspects of
the Tribunal’s judgment.42
Poland may be regarded as a unique example of “constitutional activism”
on the part of ordinary judges, but, with respect to the existence of conflict
between the superior courts, it is no different from several other countries of
the region. In the Czech Republic, for example:
[T]he issue of the binding force of the Constitutional Court’s precedents

grew into a major systemic crisis. . . . The Czech Supreme Court open-
ly revolted against the Constitutional Court’s decisions, claiming that
41
For more detailed presentation, see generally Garlicki, supra note 37.
42
One may recall a recent controversy concerning the scope of reopening the cassation proceedings
before the Supreme Court that found its resolution only when the legislature “helped” the Tribunal
by adopting necessary amendments to the Code of Civil Procedure. See Garlicki, supra note 37.
the latter’s opinions are not binding on the Supreme Court since the
Continental legal system was not based on the system of precedents.
The ordinary judiciary was supported and praised by a part of a domestic
legal scholarship, deeply suspicious of the Constitutional Court and its
new philosophy. . . . The Constitutional Court repeatedly quashed deci-
sions of the ordinary judiciary in which the ordinary courts had opposed
the constitutional jurisprudence. Although tensions have eased since
2000, the issue is still far from being resolved.43

Tensions of a similar nature have also become apparent in other countries of
the region, in particular, in Hungary,44 but also in Russia.45 Nor are such ten-
sions foreign to Western European systems, despite profound differences in
their legal traditions and political history. The expression “war of judges” was
43
Zdenek Kuhn, supra note 38, at 223–225. See also Pavel Holländer, The Role of the Constitutional
Court for the application of the Constitution in case decisions of ordinary courts, 86 ARCHIV FUR RECHTS-
UND SOZIALPHILOSOPHIE 537 (2000); WOJCIECH SADURSKI, RIGHTS BEFORE COURTS 21–23 (Springer 2005).
See also Jiri Priban, Judicial Power vs. Democratic Representation, in CONSTITUTIONAL JUSTICE, supra note
2, at 380 (observing that “[t]he main conflict between the Constitutional Court and the Supreme
Court as the highest body of the ordinary judiciary was about the Constitutional Court’s power to
review decisions of ordinary courts and therefore its entitlement to review the constitutionality of
the Supreme Court’s decisions”).
44
The Hungarian Constitutional Court, under the presidency of László Sólyom, ranked among the
most active courts in the region. While it does not have direct powers to review the constitutional-
ity of individual judicial decisions, it has developed several techniques of review of the jurispru-
dence of ordinary courts (in particular, the “living law concept”). See Schwartz, supra note 2, at 83.
Conflict with the Supreme Court was inevitable and lessened only after profound changes in the
Constitutional Court’s judicial philosophy had taken place in the beginning of the current decade:
see Gábor Halmai, The Hungarian Approach to Constitutional Review: The End of Activism? in CONSTITU-
TIONAL JUSTICE, supra note 2, at 204–207.
45
The Russian courts attempted to establish their autonomous right to set aside unconstitu-
tional statutes. As Sadurski notes, “[R]ussia provides a good example of such a conflict; it re-
sulted in a victory for the Constitutional Court which fiercely fought against granting regular
courts the power to make their own declarations as to the unconstitutionality of statutes. It
maintained that the only avenue opened to courts in such cases was to stay the proceedings and
to address the Constitutional Court in the form of ‘concrete review.’ . . . The Constitutional Court,
in a decision of 16 June 1998, taking the form of a binding interpretation of the Constitution,
reminded the courts that it was itself the only body competent to decide upon issues of constitu-
tionality, either in abstracto or in concrete cases. . . . It is only in regard to sub-statutory acts that
the regular courts may directly apply the Constitution rather than the act.” Sadurski, supra note
43, at 20–21.
recently used in connection with developments in Belgium,46 while the

Austrian Supreme Court expressed clear opposition to proposals to extend the
procedure of constitutional complaint,47 and in Spain an endemic conflict sur-
faced suddenly in 2004.48
In the specific context of this discussion, the constitutional court of France
is in the weakest position. Since the Conseil Constitutionnel decides on the
constitutionality of statutes only in a procedure of a “preventive review,” there
is no direct link between the jurisdiction of the Conseil and the judicial imple-

mentation of statutes. This solution reflects the initial resolve to separate the
Conseil from the judicial branch. However, at least since 1971, the Conseil has
developed a vast jurisprudence on fundamental rights and resorts frequently
to various techniques of “conforming interpretation” (interpretation conforme).
Nevertheless, the viability of the Conseil’s legal positions has depended on the
voluntary compliance of other jurisdictions; the Conseil is equipped with no
procedural mechanism by which to impose its interpretations on the Cour
de Cassation and the Conseil d’État. That the Conseil Constitutionnel finally
46
“Tout ne va pas pour le mieux dans le meilleur des mondes. Les relations entre la Cour d’arbitrage
et les deux autres jurisdictions suprêmes, la Cour de cassation et le Conseil d’État, connaissent des
moments de tension. L’autorité de plusieurs arrêts de la juridiction constitutionnelle se heurte à de
veritables resistances.” [“Not everything goes better in the best of worlds. The relations between
the Court of Arbitrage and the two other supreme jurisdictions, the Court of Cassation and the
Council of State, experience moments of tension. The authority of numerous opinions of the
constitutional jurisdiction runs into real resistance.”] Francis Delpérée Belgique, XX ANNUAIRE INTER-
NATIONALE DE JUSTICE CONSTITUTIONELLE 176 (2004), who quotes the opinions of Jacques Van Comper-
nolle and Marc Verdussen.
47
Herbert Steininger, Empfiehlt es sich, die Zustandigkeiten des Verfassungsgerichtshofs durch
Enfuhrung einer umfassenden, auch Akte der Gerichtsbarkeit erfassenden Individualverfassungs-
beschwerde zu erweitern? [Is it advisable to expand the responsibilities of the Constitutional Court
through the introduction of an individual constitutional complaint that is comprehensive and cov-
ers acts of jurisdiction?], in VERFASSUNGSTAG [CONSTITUTIONAL DAILY] 1994 (Verlag Österreich 1995).
48
“After more than a quarter of a century since the coming into force of the 1978 Constitution, the
respective place of each of the Spanish top courts, far from being generally accepted, has evolved
into a far-reaching institutional conflict. In February [2004] the then three living former presi-
dents of the Constitutional Court issued an unprecedented public declaration, under the headline
‘A constitutional crisis,’ following an equally unprecedented ruling of the Tribunal Supremo con-
demning the judges of the Tribunal Constiticional to a fine of 500 euros each.” Pedro Cruz Villalón,
Conflict between Tribunal Constitucional and Tribunal Supremo—A National Experience, in THE FUTURE
OF THE EUROPEAN JUDICIAL SYSTEM IN A COMPARATIVE PERSPECTIVE (Ingolf Pernice, Juliane Kokott, Cheryl
Saunders eds., Nomos 2006) 111; see also Francisco Javier Matia Portilla, Espagne, XX ANNUAIRE
INTERNATIONALE DE JUSTICE CONSTITUTIONNELLE: ESPAGNE [CONSTITUTIONAL JUSTICE ANNUAL: SPAIN], 187–189
(2004); Leslie Turano, Spain: Qui Custodiet Ipsos Custodes?: The Struggle for Jurisdiction between the
Tribunal Constitucional and the Tribunal Supremo, 4 INT’L J. CONST. L. (I•CON) 151–162 (2006)
(offering another interesting presentation of this conflict and discussing several earlier clashes
between the two courts).
managed to win recognition from other jurisdictions49 must be attributed to

the intellectual caliber of the Conseil’s case law as well as of those, who—like
Louis Favoreu—provided a conceptual framework for that case law.50
3. Conclusion: Endemic tension or unavoidable conflict?

Several general observations may be submitted in conclusion.

3.1. A systemic tension
First, the existence of a certain level of conflict or, to put it more mildly, certain
tensions among the courts constitutes a necessary component of every system
of centralized judicial review. Once a distinct constitutional court coexists with
one or more supreme courts, this cannot but produce problems in mutual rela-
tions. Hence—and this is my first concluding remark—the presence of tensions
among the highest courts is systemic in nature.51 In other words, it would be
erroneous to regard such tensions as an aberration that should not exist in the
judicial system of a democracy. A state of persistent or endemic tension seems
to be as natural for the developed democracies as for the postcommunist new-
comers. Sometimes it may develop or, rather, degenerate into a “war of courts,”
and only then would the relations between courts approach an aberrational
level of conflict. But it would be naïve to suggest that any pattern of coexistence
could be completely free of tensions and problems. While the Kelsenian model
has proven to be efficient and attractive in Europe, it contains also some built-
in deficiencies.
It was recently observed that there is “a more general trend that whenever
constitutional courts have been established in post-authoritarian countries, a
pattern of conflict between these courts on the one hand and the supreme
courts (plus other ordinary courts) on the other, has emerged.”52 This may be
49
See, e.g., Louis L. Favoreu & Thierry Renoux, Rapport général introductive, [General introductory
report] in LA COUR DE CASSATION ET LA CONSTITUTION DE LA REPUBLIQUE [THE COURT OF CASSATION AND THE
CONSTITUTION OF THE REPUBLIC] (Presses Univ. Aix-Marseille 1994); GRANDES DECISIONS DU CONSEIL CONSTI-
TUTIONNEL [LANDMARK DECISIONS OF THE CONSTITUTIONAL COUNCIL] 163–169 (Louis Favoreu & Loïc Philip,
eds., Dalloz-Sirey 13th ed. 2005).
50
But conflicts between jurisdictions remain constantly present, particularly in the traditional
area of the civil law. See, for illustration, an exchange of views of François Luchaire, Les fondements
constitutionnels du droit civil [Constitutional bases of civil law], 2 REVUE TRIMESTRIELLE DE DROIT CIVIL
245 (1982); Christian Atias, La civilisation du droit constitutionnel, 7 REVUE FRANÇAISE DE DROIT CONSTI-
TUTIONNEL [R.F.D.C.] 435, 436 (1991) (Fr.); Jean Yves Cherot, Les rapports du Droit Constitutionnel et
Droit Civil, réponse à Christian Atias [Constitutional and Civil Law Reports, a Response to Christian
Atias], 7 R.F.D.C. 439, 441 (1991).
51
Similarly, in particular, Heun, supra note 11, at 110–111; Turano, supra note 48, at 162.
52
Sadurski, supra note 43, at 21.
true, but it should not be forgotten that the usefulness of the comparative per-
spective, here, remains limited due to the fact that almost all the constitutional
courts in Europe have emerged in postauthoritarian countries. France and
Belgium present the only examples of constitutional jurisdictions that were not
established as one of an array of democratization devices. But both of those
jurisdictions are hardly typical: the Conseil Constitutionnel emerged in the
rather particular context of the beginnings of the Fifth Republic and primarily
undertakes preventive review; the Cour d’Arbitrage emerged from the equally

distinctive process of Belgian regionalization.
However different the basic structure of their relations with other courts
from what is found in ostensibly classic systems of constitutional review, con-
flicts between courts nonetheless occur in those two countries. Thus, the basis
for such conflicts seems to lie in more general structural problems and not
solely in the transition from an authoritarian history. Although a clear con-
nection between democratic transition and the establishment of a separate
constitutional court has been observed,53 this does not imply that, in countries
not haunted by their past, the evolution of relationships among courts is neces-
sarily conflict-free.
3.2. The propensities of judges and the pervasiveness of constitutions

The existence of tensions and conflicts between the courts can often be traced
to the natural inclination of judges to expand the scope of their authority. Over
the last decades, many courts, constitutional as well as supreme, have made
many efforts to exploit their powers to the limit or, sometimes, even beyond the
limit. While it seems legitimate to ask “whether it is prudent to make use of
power that will lead to political catastrophe,”54 the desire to amass powers and
competences is an aspect of human nature as well as of public bodies. Factors
such as professional self-esteem,55 institutional dignity, and even simple dislike
of competitors56 may also contribute to a certain expansionism on the part of
the courts. In brief, there is a subjective element in developments at the highest
judicial level.
53
See, e. g. Louis Favoreu: American and European Models of Constitutional Justice, in COMPARATIVE AND
PRIVATE INTERNATIONAL LAW: ESSAYS IN HONOR OF JOHN HENRY MERRYMAN ON HIS SEVENTIETH BIRTHDAY,
(David S. Clark, ed., Duncker & Humblot 1990); Ruti Teitel, Transitional Jurisprudence: The Role of
Law in Political Transformation, 106 YALE L. J. 2032 (1996); Sadurski, supra note 43 at 40–58.
54
BRUCE ACKERMAN, THE FUTURE OF LIBERAL REVOLUTION 143 (Yale Univ. Press 1992). Ackerman ob-
serves further: “[s]urely it is well within the court’s capacity to construe its statutory jurisdiction
narrowly.”
55
Leslie Turano, supra note 48, at 161.
56
Several authors note, in this context, differences in the professional background and, as a conse-
quence, in the “constitutional temperament” of constitutional judges (who often come from
academia, sometimes from politics, and not too often from the judiciary) and supreme court judges
(who usually spend most of their professional lives within the judicial system).
However, the more basic reason for tension is an objective one, originating
in the evolution of the role of modern constitutions. Two developments, men-
tioned in the initial section of this article, are particularly important factors.
First is the judicialization of constitutions, whereby the constitution becomes a
legal instrument directly applicable before all courts and, hence, a useful tool
in disputes before courts. The second element is the constitutionalization of
specific areas of law, meaning that ordinary statutes are applied and inter-
preted on the basis of constitutional principles and provisions. This has the

effect of making the constitution relevant, as well, to disputes arising within
the traditional areas of law. In effect, it is impossible to delimit any clear border
between the constitutional law and the rest of the legal system; the former per-
meates the entire structure of the latter. The upshot is that the functions of
constitutional courts and those of ordinary courts are bound to overlap, and
this cannot but produce tensions and conflicts.
Constitutional courts are sometimes depicted as newcomers, arriving at
ground already occupied by the supreme courts and trying to interfere with
the well-established practices of the judicial branch. This may be true, in that
supreme courts have a longer history and greater experience than constitu-
tional courts, just as it is true that traditional spheres of law have a longer his-
tory and more-developed jurisprudence than constitutional law. But the
modern understanding of a constitution emerged, at least in Europe, only
within the last six decades in the West and two decades in the East. This is
exactly the age of most constitutional courts in the region. Thus, both the con-
stitutional and the supreme courts have had to approach this new constitu-
tional paradigm at the same time, and both have had to establish their place in
the evolving constitutional context. As long as we are in the domain of consti-
tutional law, there is no reason to ascribe more seniority to the supreme court
than to the constitutional court. This is particularly true for the postauthori-
tarian systems, where the previous supreme courts had to be “revitalized.”
Now, these same countries also account for most of the “constitutional court”
countries in Europe.
3.3. A preference for “positive lawmaking”

It is the power to find statutes unconstitutional that is sometimes identified as the
main area of conflicts between the courts.57 While no one challenges the consti-
tutional courts’ sole discretion to invalidate—with an erga omnes authority—
unconstitutional statutes, other courts claim an independent competence
to examine the constitutionality of statutes and to refuse the application of
unconstitutional statutory provisions. Thus, the real conflict develops within
the area of what may be termed “negative” lawmaking.
57
See Sadurski, supra note 43, at 19–25.
This may be true in respect of some countries, the Polish example being one
of the most prominent. But, in several other countries (such as Germany and
Spain), the ordinary courts show comparatively less interest in taking final
decisions on unconstitutionality. All the partners within the judicial branch
agree that this power should remain reserved to the constitutional court.
However, the constitutional courts themselves do not regard the invalidation
of statutes as their main tool in deciding constitutional issues. Quite often, they
seek, rather, to establish an interpretation of the statute in question that allows

it to survive judicial scrutiny. It seems that many, if not most, contemporary
constitutional courts focus more on the constitutional interpretation of stat-
utes than on declarations of unconstitutionality. Thus, the statute survives,
although its meaning and scope of operation may change considerably in the
process. In effect, constitutional courts act more often as positive lawmakers
than negative ones.
It is not necessary to raise here the question of the legitimacy of this version
of judicial review. Suffice it to say, this is the reality of the jurisprudential activ-
ity of constitutional courts in most contemporary systems. It alters the tradi-
tional balance of powers between the constitutional court and the parliament
and also has a profound impact on the relations within the judicial branch.
Statutory interpretation has always been among the competences of the ordi-
nary courts. While the incidence of creativism, so called, and positivism, so
called, has varied among different countries and different historical periods, it
has always been recognized, at least by the realists, that judicial interpretation
entails some component of lawmaking. Once the process of the constitutionali-
zation of particular areas of law had emerged, the courts began to use constitu-
tional provisions in the process of statutory interpretation. This means that
both the supreme court and the constitutional court strive, simultaneously, to
realign the statutory law with the national constitution. However, conclusions
proposed by each of those courts may not always be the same. Thus—my next
concluding remark—the main body of conflicts between the courts develops
within the area of interpretation, that is, within the area of positive
lawmaking.
3.4. The weaker position of constitutional courts

The outcome of those conflicts depends mainly on the general environment in
which the judicial branch operates in a given country. The established rules of
the political culture, the influence of the country’s legal tradition, the author-
ity of the national constitution, and the authority of the parliament delimit
what area is left for the judicial branch and determine the ways and means of
conflict resolution. It is scarcely necessary to repeat that, in this respect, there
are profound differences among the constitutional court countries.
Also, the constitutional setting differs considerably from one country to
the next. From this perspective, the balance of power between the courts depends
mainly on the scope of competences vested in the constitutional court. All
constitutional courts have the power of judicial review and invalidation of

unconstitutional statutes and statutory provisions. This gives them, effectively,
the last word in conflicts with parliaments, yet it is still not enough to compel
other courts to follow the “constitutional” interpretation of statutes as estab-
lished by the constitutional court. The spectrum of other powers of, and proce-
dures before, the constitutional courts varies considerably. It may be argued
that only in those countries (Germany, Spain, Austria, the Czech Republic,
Slovakia) that have adopted a genuine concept of constitutional complaint

(Verfassungsbeschwerde)58 is the Constitutional Court sufficiently equipped to
impose its legal positions on other segments of the judicial branch. Only in this
way can the constitutional court set aside any judicial decision, if it finds that a
court has applied a statute in an unconstitutional manner. Other procedures do
not offer such a possibility. The limited versions of the Verfassungsbeschwerde
(Poland, Hungary, Russia) are focused on the review of statutory provisions and
do not allow for direct invalidation of individual judgments. The procedure of
incidental referrals of constitutional questions (Italy) is dependent on the initia-
tive of the court a quo, and it leaves to the same court the final decision as to how
to apply the constitutional court’s judgment. Systems based on the abstract
review of statutes (France) separate the judicial review from adjudication of
individual cases.
Of course, the court always has the competence to invalidate a statute.59
One of the grounds for such invalidation may be that the practice of the ordi-
nary courts has constructed the statute in a manner incompatible with the
constitutional interpretation established by the constitutional court. But such
a drastic option may be exercised only in exceptional circumstances and can
hardly be reconciled with the court’s preference to remain within the arena of
positive lawmaking.
Constitutional courts were conceived as negative lawmakers and, as long as
they are willing simply to delete unconstitutional statutes, they are able to
impose their legal positions on all other branches of government and all other
segments of the judicial branch. On the other hand, the current activity of
many constitutional courts has become focused, instead, on positive constitu-
tional/statutory interpretation. The positive powers of constitutional courts
remain, however, less formidable. Only in a few countries have constitutional
courts been given legal instruments adequate to control the case law of
ordinary courts. Even in those countries, constitutional courts are unable
58
See Brunner’s distinction of “echte” and “unechte” procedures of constitutional complaint in
GEORG BRUNNER, VERFASSUNGSGERICHTSBARKEIT IN POLEN [CONSTITUTIONAL COMPLAINT IN POLAND] 48–52
(Nomos 1999).
59
The Conseil Constitutionnel, due to the French system of contrôle préalable, is deprived even of such
possibility. Thus, persuasion seems to be the only way to convince ordinary and administrative
courts to follow the Conseil’s interpretation of the Constitution. As it has already been mentioned,
in the last three decades, the Conseil has appeared more and more successful in that persuasion.
logistically to intervene in all but exceptional cases. That is why the interpreta-
tion of statutes (which, nowadays, always takes into account the provisions of
constitutional law and supranational law) remains primarily within the prov-
ince of the supreme courts. My final concluding remark is that constitutional
courts appear as weaker participants in that process and, in case of conflict,
they are not always able to deliver that last word. Thus, for the constitutional
court, dialogue and persuasion seem to be more effective than open conflicts
and confrontations with other jurisdictions.60
60
Mutatis mutandis, the same may be said of the relationship between the European Court of
Human Rights (as well as the European Court of Justice) and the national supreme/constitutional
courts.

Constitutional Court Vs Supreme Court

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Constitutional Court Vs Supreme Court

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SYMPOSIUM

Constitutional courts versus

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1. The Kelsenian model: Parallel supreme jurisdictions

1.1 The model

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1.2. Delimitation of jurisdictions

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1.3. The judge-made constitution

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established in the jurisprudence of the supreme court. Sometimes, however, the

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2. Experience: Some examples of judicial cohabitation

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No clear indication as to the delimitation of the functions and powers of those

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powerful jurisdictions in Europe, the problem of relations within the judicial

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The Constitutional Court’s interpretative decisions of rejection do not

Fifty years of coexistence by the superior courts in Italy failed to produce a

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[T]he issue of the binding force of the Constitutional Court’s precedents

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recently used in connection with developments in Belgium,46 while the

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managed to win recognition from other jurisdictions49 must be attributed to

3. Conclusion: Endemic tension or unavoidable conﬂict?

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3.2. The propensities of judges and the pervasiveness of constitutions

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3.3. A preference for “positive lawmaking”

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3.4. The weaker position of constitutional courts

constitutional courts have the power of judicial review and invalidation of

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