Quel rôle pour les Parlements nationaux dans l'Union européenne ? - The role of national parliaments in the European Union

SESSION 4

CONSTITUTIONS, SOVEREIGNTY AND EUROPEAN LAW

I. INTRODUCTION:
Mr Jean-François Rapin, Chaiman of the European affairs Committee of the French Senate

Last October, Poland's Constitutional Court proclaimed the primacy of the Polish Constitution over the European treaties. This decision, which some have interpreted as a legal "Polexit", has raised the delicate issue of the relationship between EU law and national standards throughout Europe.

This issue is as old as the European Union itself, since it involves bringing together two interlocking but at the same time distinct legal orders, each with its own hierarchy of norms. The fears are well known: denial of sovereignty, challenges to the "constitutional identity" of the Member States, "government of the judges", and so on.

Behind this apparently legal question, there are of course political debates. Today, it is about the state of the rule of law in Poland and Hungary. Last year, on another level, the debate centred on the appropriateness, from a German perspective, of the policy pursued by the European Central Bank, when the German Federal Constitutional Court, in its ruling of May 2020, challenged a decision of the Court of Justice of the European Union, giving rise to great emotion in Europe. In France, too, this debate has arisen as a result of recent rulings by the European Court of Justice that are perceived as threatening national security, because they call into question the collection of data useful in the fight against terrorism or because they interfere with the working time of military personnel.

The national parliaments, which are both the constituent power and the source of the European legal order, are at the heart of these tensions between constitutions, regional law and European law. Yet, they could also become part of the solution...

Our fourth and final session will therefore be devoted to this debate, with a view to understanding all its legal subtleties, gaining a better understanding of the Polish and German episodes and seeking solutions.

II. CONSTITUTIONAL IDENTITY AND THE COURT OF JUSTICE OF THE EUROPEAN UNION
Ms Laure Clément-Wilz, Professor of public law at the university of Paris-Est Créteil, France

The principle of primacy has never been so much in the public debate as it is at the very moment when legal thinking considers that this principle is dead^509(*), or even 'stillborn', or that it no longer has the same meaning as when it was established in 1964^510(*) in the famous Costa^511(*) judgment.

This paradox can be explained by three factors. Firstly, the current political debate in France is relatively tense. The recent CJEU ruling on the application of the Working Time Directive to the military (the "Slovenian Army" case)^512(*) has been seen as an unacceptable interference in the sovereign domain^513(*). In addition, the presidential campaign has encouraged polarisation of options, and has even tended to polarise positions on the European question. The terms of the debate have certainly changed since the armed conflict in Ukraine, but the tensions between national sovereignty and the European Union remain. Contributing to this tension is the growing number of pronouncements by constitutional or supreme courts hostile to the case law of the CJEU, including the German^514(*), Danish^515(*), Czech^516(*) and Italian^517(*) Constitutional Courts and, more recently, the French Conseil d'Etat^518(*) . The French Constitutional Council, for its part, has opened up the possibility of challenges more widely.^519(*) The recent decision of the Polish Constitutional Court affirming the precedence of the Constitution over the European treaties^520(*) must be analysed from a different angle, insofar as it concerns a court whose members' quality as judges is now questionable due to the latest reforms^521(*), and where this decision basically tends to call into question the rule of law protected by Article 2 of the Treaty on European Union^522(*).

To try to dispel this paradox, I propose, as requested by the organisers of the symposium, whom I would like to thank for this initiative, to start from the concept of constitutional identity and the case law of the Court of Justice of the European Union. It is indeed difficult to consider the primacy of European law without considering its application by the courts. As we saw at the beginning of this symposium, the big issue for MEPs is not primacy, but subsidiarity. On the other hand, the principle of primacy, which has been formalised and then reiterated, whatever its meaning, has lived on mainly thanks to European and national judges. It is therefore a principle based on case law, referred to only in a declaration annexed to the Treaty, which itself refers to the case law of the Court of Justice of the European Union^523(*).

In other words, as I see it, any hostility or perplexity about primacy is directed primarily at judges: it is up to national judges to disregard European law in certain circumstances, and therefore the rulings of the CJEU. And it may be up to the judges of the Court of Justice to bend. By criticising primacy and emphasising the protection of sovereignty, it is mainly the authority of the CJEU that is virulently challenged. In the same way, constitutional identity is a concept developed by national judges and the CJEU, which could be a bridge between the primacy of Union law and the supremacy of the Constitution, "insofar as it is both a concept of Union law and a concept of national law, it acts as a norm of convergence between legal orders likely to provide a response to constitutional conflict"^524(*). It should be briefly recalled here that national identity, which is frequently used in everyday language, is a formula used to express excessive interference by the Union in the internal affairs of the State. Although it is used in the Treaties, the concept of national identity will not be used in this communication, because of the emotional charge it carries and its political instrumentalisation. It will be replaced by the concept of constitutional identity, which has a more circumscribed legal content and is used by national courts. Constitutional identity refers to a certain idea we have of the essence of a Constitution and of what distinguishes it from the European order as a whole.

From a legal perspective, it would appear that both the criticisms of primacy and the opposition of primacy to "legal sovereignty" raised by Mr Barnier, then a candidate in the right-wing primaries^525(*), are sterile because they do not reflect the complexity of the doctrinal debates on this principle. Nor do they take account of developments in the case law of the Court of Justice of the European Union on constitutional identity. The positions that are currently fuelling the debate are based on a caricatured view of European Union law and the case law of the Court of Justice. Similarly, why set the authority of the CJEU against that of national supreme and constitutional courts? We must remember that, despite the difficulty of defining and implementing it, the path of judicial dialogue is still an instrument at the service of living together in Europe (3). Indeed, despite its undeniable logic, the hierarchy of norms no longer makes it possible to think fully about the relationship between systems (1), and the judicial hierarchy no longer makes it possible to think fully about the relationship between judges (2).

1. System relationships cannot be thought of in terms of a hierarchy of norms

1 - If we reason in terms of a hierarchy of norms, following a Kelsenian logic, we quickly reach a dead end: the primacy of Union law opposed to the supremacy of the Constitution. And in this game, it can be said, in rather simplistic terms, that the "Constitution wins". One can only admit that the cardinal principle is that of the supremacy of the Constitution. Indeed, the access of the European standard in the internal order is the effect of a construction of the internal order at the top of which we find the Constitution. The application of European legislation and its authority are conditioned by the Constitution^526(*). However, the national courts must ensure that European law has full effect, in accordance not only with constitutional law (article 88-1 of the French Constitution) but also with various principles of European law (primacy, effectiveness, loyal cooperation). Despite this, the Court of Justice has consistently held that the principle of primacy constitutes the legal basis of the European Union and its autonomy^527(*). What is more, it has given this principle an absolute character: the principle applies even in the face of constitutional norms^528(*). In order to break the deadlock between the primacy and supremacy of one standard or another, it is certainly necessary to move away from the paradigm of hierarchy^529(*) to that of the articulation between standards^530(*).

2 - If we focus on the role of judges, we can admit that the principle of primacy has always depended on the goodwill of national judges. For a long time, the principle of the primacy of Union law gave considerable leverage to national judges, the judges of conventionality, who were able to broaden their role by relying on the case law of the CJEU. For example, in the Simmenthal case, the English courts were able to set aside an unconventional law even though this did not fall within their prerogatives under domestic law.^531(*) Despite the fact that French^532(*) judges were rather late in becoming aware of this new power, the recent and current period is notable for the wind of rebellion that seems to be blowing through the ranks of supreme and constitutional judges. The gradual increase in the Union's powers and the corresponding increase in the jurisdiction of the CJEU, as well as the growing complexity of the legal bases and the ever more sensitive nature of the issues brought before the CJEU, also surely explain the reluctance of national judges.

However, despite the importance attached to the principle of primacy, the CJEU has long taken account of national constitutional requirements and accepted respect for the constitutional identities of States in its case law on 'counter-limits'. Its case law on fundamental rights, developed since the 1970s^533(*), made it possible to take account of the constitutional resistance of certain States. Subsequently, the protection of constitutional identity was enshrined in the Treaties with the entry into force of the Maastricht Treaty^534(*). The CJEU respects the constitutional identity invoked (explicitly or otherwise) by national courts in the context of references for preliminary rulings. Thus, in the Omega judgment, respect for human dignity, which is protected by the German Basic Law, is accepted as a possible obstacle to free movement, which is protected within the framework of the internal market^535(*). The same line of reasoning applies to territorial integrity^536(*) and respect for revolutionary principles concerning names^537(*). Broadly speaking, the CJEU proceeds as follows: it takes account of constitutional identities (qualified as such or not), respects the definition and qualification given to them by the national court. It does not call into question the qualification of the national court. But it takes it on board at European level, incorporates it into its reasoning and applies the principle of proportionality where appropriate.

Read in the light of pluralism and reconciled with the concept of constitutional identity, the principle of primacy is no longer there simply to underpin the unity of an economic area, but must incorporate the disparate claims of national judges and, sometimes, their governments. It also reflects the national and European aspirations of the moment. One might ask whether this period of relative calm is over, and whether the validity of pluralist theories should be called into question. The so-called Taricco II^538(*) judgment is emblematic in this respect. In the first Taricco judgment, the CJEU ruled that Italian judges had to disregard the rules set out in the Criminal Code in the context of ongoing criminal proceedings. This ruling caused an outcry in Italy. The decision was criticised for blatantly undermining the hard core of Italy's constitutional identity. The Italian Constitutional Court then referred the matter to the CJEU to determine whether national courts should comply with the obligation set out in the Taricco ruling. The European Court then backtracked, probably yielding to the threat of a counter-limit and in the name of protecting constitutional identity. Like all judgments, the Taricco II judgment can be interpreted in various ways. More specifically on the question of pluralism, the Taricco II judgment can be interpreted in two diametrically opposed ways^539(*). Does this renunciation by the Court of Justice undermine pluralism or strengthen it? It can either be seen as undermining it, because it is a case of the Italian Constitutional Court forcing its way through. But the Constitutional Court is also playing the game of dialogue between judges, by activating the preliminary reference, a mechanism for jurisdictional cooperation and a jurisdictional instrument for pluralism. The European judicial system is not based on judicial hierarchy and the principle of primacy, and owes its continued existence to the flexibility of the European judicial system.

2. The European judicial system is not based on hierarchy

References for preliminary rulings on interpretation, which have existed since 1957^540(*), function as an instrument of dialogue rather than authority. It appears to be the jurisdictional instrument of legal pluralism. The authority of the Court of Justice of the European Communities vis-à-vis national courts rests mainly on this instrument. Despite invitations to this effect^541(*), it is difficult to describe the CJEU as the supreme court of the European Union insofar as it is not possible to appeal to the CJEU against the decisions of national supreme judges. The CJEU "occupies neither the apex nor the centre of a diversified jurisdictional organisation"^542(*). It must constantly cooperate with national judges. Nevertheless, national courts are under an obligation to refer cases to the Court of Justice for a preliminary ruling^543(*)and to respect the authority of res judicata and interpretations. The existence of these two legal obligations already shows the limits of the logic of dialogue. Moreover, in practice, it is questionable how the logic of cooperation can be preserved when national courts show signs of hostility.

Such hostility may take the form of a preliminary question, as in the Gauweiler case^544(*). The power of this Court and the importance of the subject (the refusal of the ECB's decision to impose on national banking authorities a programme to buy back Greek securities in response to the downgrading by the markets) did not prevent the CJEU from remaining firm and maintaining its case law. The German Constitutional Court agreed on the merits. In the "Quadrature du Net" case, the Conseil d'Etat referred a question to the Court for a preliminary ruling^545(*), setting out its response. The CJEU maintained its firm position while making some concessions^546(*).

The courts may also choose to depart completely from the logic of dialogue by not making a reference for a preliminary ruling. Once again, there are two types of attitude. Firstly, the courts may choose to engage in "silent resistance". As they have done since the origin of the Treaties, the supreme courts regularly and silently leave EU law unapplied without submitting any preliminary questions. In fact, the preliminary questions submitted are only the tip of the iceberg of relations between the national courts and the CJEU^547(*). The national courts, the ordinary courts of the European Union, apply or misapply EU law, whether voluntarily or not, without necessarily referring the matter to the CJEU. And this daily and varied jurisdictional activity of national judges, including supreme judges, largely escapes observers of European case law and the vigilance of the Commission.

In addition to this silent, traditional resistance, there is now a new type of resistance, more 'vocal' in the sense that judges openly express their divergence from the CJEU in their interpretation of EU law. They may do so following a ruling on a reference for a preliminary ruling. This has sometimes been the case since the early 2010s. Several supreme or constitutional courts have shown signs of opposition. In 2012, the Czech Constitutional Court was the first to enter into open resistance by refusing to apply a CJEU ruling on the calculation of retirement pensions for workers from the former Czechoslovakia and on the concept of transnational situation in this context. However, the subject of the disagreement was relatively limited in scope and this decision by the Constitutional Court seemed to be marked above all by opposition to the Czech Supreme Administrative Court. Also, following a reference for a preliminary ruling concerning the compatibility of the principle of non-discrimination with a Danish law limiting the right to redundancy pay above a certain age, the Danish Supreme Court refused to apply the CJEU ruling^548(*). This is therefore an open conflict that has not been resolved. Similarly, in the "Quadrature du Net" case, the Conseil d'Etat clearly stated its opposition to the CJEU's response and considered that it would not apply in this case. With the French Data Network ruling, it appears that the Conseil d'Etat is moving away from the logic of the preliminary ruling dialogue. By adopting a new line of reasoning based on a new reservation of unconstitutionality and a strict interpretation of the principle of constitutionality, the Conseil d'Etat chose not to apply the case law of the Court of Justice of the European Union following a reference for a preliminary ruling. The situation is therefore similar to that in Denmark.

Noisy" resistance can also be expressed outside the context of a reference for a preliminary ruling, as was recently the case when the German Constitutional Court, applying the doctrine of ultra vires, decided unilaterally and openly hostile to EU law as applied by the CJEU^549(*). It has challenged, in the strongest possible terms, the constitutionality of the ECB's policy of buying up public debt. It was against this backdrop that the Constitutional Council^550(*) handed down its "Société Airfrance" decision, which identified a principle inherent in constitutional identity as a potential counter-limit to the application of secondary legislation on migration.

Despite this hardening of the positions of national supreme and constitutional courts, it is still possible to consider that the existence of the Union depends on respect for pluralism. And this pluralism requires dialogue, jurisdictional dialogue. It is therefore within the framework of the European judicial system that we can test the solidity of the principle of primacy and seek to give it substance.

3. The dialogue between judges, again and again

The "dialogue of judges" may appear to be an overused expression, often marked by the seal of non-law. Dialogue, like pluralism, refers less to law than to sociology. Dialogue means an attitude of openness between judges and does not imply a systematisation of the law. However, it seems difficult to understand system relationships without this notion, for two reasons. On the one hand, dialogue is part of the Union's characteristics: the European Union is plural, and is not focused solely on unification and commonality. Secondly, this concept is part of European litigation law, since it is governed by litigation rules. As it is conceived, the litigation of the European Union precisely enables the actors in the dialogue of European judges, the national judges and the CJEU, to limit the occurrence of frontal and irreconcilable oppositions. National judges who invoke constitutional identity in order to escape certain European obligations must argue in order to qualify a rule as falling within this concept. Constitutional identity does not correspond to the whole of constitutional law. Moreover, the Constitutional Council has been criticised for its vision of constitutional identity, and the new reservation of unconstitutionality laid down by the Conseil d'Etat has also been the subject of numerous challenges. It will have to account for its interpretation of the constitutional requirements that stand in the way of the Court's ruling. If these exceptions one day reach the CJEU by way of a preliminary ruling, the Court of Justice will be able to verify whether they are such as to infringe Union law.

Similarly, in the event of a clear breach of EU law, the CJEU has been able to assert a certain authority over the supreme courts through two mechanisms forged by its own case law. The first is the possibility of holding a State liable on the grounds of a manifest infringement of EU law by a national supreme court, and the second is the 'judicial failure to act', which enables the Commission to ask the Court to find that a State has failed to fulfil its European obligations on the grounds of a manifest infringement of EU law by a supreme court^551(*). This vertical integration of relations between the CJEU and national courts^552(*) remains exceptional and only targets manifest breaches of EU law and the obligation to refer for a preliminary ruling.

If the dialogue between judges, formalised by the preliminary ruling procedure, is presented as a kind of unassailable horizon in relations between the European Union and its Member States, then serious questions must be asked about a possible 'regulation of public life through court action'^553(*) and more specifically about the organisation of the trial and the method of appointing judges. Are trials the appropriate forum for striking the right balance between the fundamental rules of the European Union and the cardinal principles of national constitutions? Are the judges (national supreme courts and the CJEU) equipped and do they have the legitimacy to do so? The questions put to a judge are necessarily contingent, and the process of appointing European judges does not really take into account the candidates' vision of Europe and their relationship with the Member States^554(*). Despite its intrinsic flaws, which are also related to the fear of the government of judges, the trial also presents itself as a space for the exchange of these points of view, which are then shaped and constrained by the form of the law. Procedural law appears to be the law of the shaping of politics, or, in the words of Alain Supiot, "the art of litigation is the art of acting rationally in the face of uncertainty"^555(*).

Before the CJEU, the European institutions, as well as all the Member States of the European Union and the European Free Trade Association (EFTA), are entitled to intervene systematically in the various proceedings, including preliminary rulings^556(*). The public interest is represented by the State (national general interest) or by the Commission (European general interest), which have democratic legitimacy. It also involves local and regional authorities, whose right to intervene is readily accepted^557(*) and whose locus standi is slightly more open than that of ordinary claimants, in the event of their autonomy being called into question. States are tending to intervene more and more in preliminary rulings. They can also take the lead of certain organisations. And the systematic intervention of the Commission makes it possible to provide the European judge with useful background information. The European procedure is therefore organised in such a way as to accommodate several institutional viewpoints. The existence of the function of Advocate General also contributes to this pluralist vision of the trial.

To meet today's challenges, why not consider introducing an amicus curiae procedure, along the lines of that used before the European Court of Human Rights? In addition, the CJEU must make further progress towards transparency, continuing the efforts already made recently (setting up a selection committee for judges and advocates-general, opening up its archives, broadcasting certain hearings online) by making available translations of procedural documents, facilitating access to archives and making the process of appointing judges more visible. The same considerations apply to national supreme courts. The discourse on the protection of the Constitution or constitutional identity must remain a legal discourse, delivered by independent judges, founded in law, who do not jurisdictionally relay the voice of their government. Outside the courtroom, European Union law cannot, less than ever, be thought outside the simple logic of effectiveness and unity without betraying its identity.

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* ⁵⁰⁹ D. Ritleng, "De l'utilité du principe de primauté du droit de l'Union", RTDE, 2009, p. 677; "Le principe de primauté de l'Union: quelle réalité?", RTDE 2015, p. 630.

* ⁵¹⁰ E. Dubout, "La primauté du droit de l'Union et le passage au pluralisme constitutionnel - Réflexions autour de l'arrêt M.A.S. et M.B.", RTDE 2018, p. 563.

* ⁵¹¹ CJEC, 15 July 1964, Costa, aff. 6/64, Rec. 1160.

* ⁵¹² CJEU, CJ, 15 July 2021, B.K. v/ Slovenia, case C-742/19.

* ⁵¹³ See in the French press: Edouard Philippe: "La décision des juges européens sur le temps de travail de nos soldats touche au coeur de la souveraineté et de la sécurité de la France" (lemonde.fr); Working time: "European law against military singularity". An opinion piece by Jean-Michel Jacques - l'Opinion; For a summary, see: Military working hours: outcry after the EU Court of Justice ruling (lefigaro.fr).

* ⁵¹⁴ German Federal Constitutional Court 6 July 2010, Honeywell, 2 BvR 2661/06; BVerfG 5 May 2020, PSPP, 2 BvR 859/153.

* ⁵¹⁵ Supreme Court of Denmark, Judgment 15/2014 Case no. 15/2014, Dansk Industri (DI) acting for Ajos A/S vs. The estate left by A. An unofficial English translation is available on the Court's website: http://www.supremecourt.dk/supremecourt/nyheder/pressemeddelelser/Documents/Judgment%2015-2014.pdf

* ⁵¹⁶ Czech Constitutional Court, 31 Jan 2012, Slovak Pension Scheme, Pl. ÚS 5/12; CJEU, 22.

* ⁵¹⁷ CJEU, CJ, 8 September 2015, Taricco and Others, C-105/14; CJEU, 5 Dec. 2017, M.A.S. and M.B., Case C-42/17.

* ⁵¹⁸ CE, ass. 21 Apr. 2021, French Data Network et a.

* ⁵¹⁹ CC, QPC, 15 Oct. 2021, Société Air France et a.

* ⁵²⁰ Polish Constitutional Court, 7 Oct. 2021, decis. K 3/21 (Trybuna Konstytucyjny: Ocena zgodnooeci z Konstytucj¹ RP wybranych przepisów Traktatu o Unii Europejskiej (trybunal.gov.pl)).

* ⁵²¹ 2021 Rule of Law Report, The rule of law situation in the European Union, COM(2021) 700; 2021 Rule of Law Report, Country Chapter on the rule of law situation in Poland; See the statement by the compulsorily retired judges challenging this decision: "It is not true that the judgment of the Constitutional Tribunal of 7 October 2021 was issued in order to guarantee primacy of the Constitution over EU law, as such a position of the Constitution has been sufficiently established in the Tribunal's judgments to date" (Statement of retired judges of the Constitutional Tribunal of 10 October 2021 - Rule of Law).

* ⁵²² See Jakab Andreas' contribution to this symposium.

* ⁵²³ Declaration No. 17 on primacy, annexed to the Final Act of the Intergovernmental Conference that adopted the Treaty of Lisbon.

* ⁵²⁴ F.X. Millet, L'Union européenne et l'identité constitutionnelle des Etats membres, LGDJ, 2013

* ⁵²⁵ Paris and Brussels stunned by Barnier's criticism of European justice - Le Parisien.

* ⁵²⁶ CE, ass. 30 Oct. 1998, Sarran and Levacher, n° 200286.

* ⁵²⁷ CJEU, opinion 2/13, 18 Dec. 2014.

* ⁵²⁸ CJEC, 11 July 2000, Kreil, aff. C-285/98, Rec. I-69.

* ⁵²⁹ See also. M. Blanquet, Droit général de l'Union européenne, Sirey, 11th edition, p. 479. The author proposes to think of primacy not as a relationship of superior law to inferior law, but of common law to particular law.

* ⁵³⁰ M. Delmas-Marty, Les forces imaginantes du droit - Le pluralisme ordonné, Seuil, 2006;

* ⁵³¹ M. van de Kerchove and F. Ost, Le système juridique entre ordre et désordre, PUF, 1988.

* ⁵³² CJCE, 8 March 1978, Simmenthal, aff. 106/77.

* ⁵³³ CE, 20 Oct. 1989, Nicolo; Cass, 24 May 1975, Jacques Vabre.

* ⁵³⁴ ECJ, 17 Dec. 1970, Internationale Handelsgessellschaft mbH, aff. C-11/70.

* ⁵³⁵ Article 4 TEU.

* ⁵³⁶ ECJ, 14 Oct. 2004, Omega, Case C-36/02.

* ⁵³⁷ ECJ, 11 Sept. 2008, UGT-Rioja, aff. C-428/06 to C-434/06.

* ⁵³⁸ CJEU, CJ, 8 September 2015, Taricco and Others, C-105/14; CJEU, 5 Dec. 2017, M.A.S. and M.B., Case C-42/17.

* ⁵³⁹ See E.Dubout, op.cit.

* ⁵⁴⁰ Article 267 TFEU.

* ⁵⁴¹ V. SKOURIS, "Interview du 20 nov. 2011", RDP, 2011, p.11; "La Cour de justice de l'Union européenne: Cour suprême ou Cour constitutionnelle - interview de K.Lenaerts", blogdroiteuropeen.com, 25 March 2016.

* ⁵⁴² J. Boulouis, "A propos de la fonction normative de la jurisprudence", Mélanges en l'honneur de M. Waline, LGDJ, 1974, p. 150.

* ⁵⁴³ Article 267 TFEU.

* ⁵⁴⁴ CJEU, CJ, 16 June 2015, P.Gauweiller, aff. C-62/14.

* ⁵⁴⁵ EC, La Quatrature du Net, 26 July 2018.

* ⁵⁴⁶ CJUE, CJ, 6 oct. 2020, La Quadrature du Net, aff. Jte C-511/18, C-512/18 et C-520/18.

* ⁵⁴⁷ J. BAQUERO CRUZ, "La procédure préjudicielle suffit-elle à garantir l'efficacité et l'uniformité du droit de l'Union européenne", in L. AZOULAI and L. BURGORGUE-LARSEN (eds.), L'autorité de l'Union européenne, Bruylant, 2006, p. 241.

* ⁵⁴⁸ Supreme Court of Denmark, Judgment 15/2014 Aff. no. 15/2014, Dansk Industri (DI) acting for Ajos A/S vs. The estate left by A.

* ⁵⁴⁹ German Federal Constitutional Court, 5 May 2020, PSPP, 2 BvR 859/153.

* ⁵⁵⁰ Conseil constitutionnel, 15 October 2021, Société Airfrance.

* ⁵⁵¹ CJCE, 30 Sept. 2003, G.Köbler, C-224/01 ; CJUE, 9 Sept. 2015, Ferreira da Silva e Brito e.a., aff. C-160/14 ; CJCE, 9 Dec. 2003, Commission / Italy, C-129/00 ; CJUE, 4 Oct. 2018, Commission c/ France, C-416/17.

* ⁵⁵² A.Iliopoulou-Penot, "La sanction des juges suprêmes nationaux pour défaut de renvoi préjudiciel, Réflexions autour de l'arrêt de la Cour de justice de l'Union européenne, 4 octobre 2018, Commission c/ France, aff. C-416/17", RFDA, 2019, p. 139.

* ⁵⁵³ Round table on European law (senat.fr).

* ⁵⁵⁴ L. Clément-Wilz, La Cour de justice de l'Union européenne, LGDJ, 2020.

* ⁵⁵⁵ A. SUPIOT, Il n'est pas de paix durable sans justice sociale, Conference, Royal Academy of Belgium, 28 Jan. 2020.

* ⁵⁵⁶ Article 23 of the Statute of the CJEU.

* ⁵⁵⁷ Article 40 paragraph 2 of the Statute of the CJEU.