If You Can't Beat Them, Join Them: The French Constitutional Council's First Reference to the Court of Justice

Not unlike national parliaments, which have seen their influence eroded as power gradually shifted to Brussels, constitutional courts are, if anything, net losers of the integration process.1 At least lower domestic courts had some incentives to embrace the constitutional revolution initiated by the Court of Justice. For them, the twin doctrines of supremacy and direct effect combined with the Simmenthal mandate came as a promise of empowerment. It was a promise of empowerment against domestic legislators as lower courts gained the power to set aside statutes, in legal systems that had either made it the exclusive preserve of constitutional courts or denied it altogether to the judicial branch. But equally, it was a promise of empowerment against the higher echelons of the domestic judicial hierarchy as EU law and the European Court afforded lower court judges a convenient avenue to challenge established lines of case law. None of this applied to constitutional courts. Not only did legal integration entail the loss of a cherished monopoly that was a distinctive trait of the Kelsenian model of constitutional review. But it also meant that, as the body of EU law expanded, so too did the Court of Justice's remit and influence. Very much like in a zero-sum game, any jurisdictional gain for the Court of Justice came at a commensurate loss for constitutional judges. Worse still, for the constitutional courts that used to exert a tight grip on the operations of ordinary courts, or wished to establish such control, the ever-expanding reach of EU law together with the emergence of a powerful European Court posed a potentially ominous challenge to their authority over ordinary judges.