Rafael García-Valdecasas *: Conde-Pumpid could be in a field of a criminal nature

This principle links to the legislative power and the administrations of the Member States, but also to the Judiciary, so that if a judge or court considers that a national norm is contrary to the right of the Union, it can raise a preliminary ruling the Court of Justice of the European Union (TJUE) so that it is pronounced on said compatibility; But if there is no doubt that the national norm is contrary to the right of the union can smoothly not apply it without having to urge your elimination or wait for it to be eliminated.

But what happens if it is a Constitutional Court or Supreme Court that dictates a ruling contrary to community law and forces the lower court to apply it? In the same way that a national judge is obliged not to apply the rule contrary to the right of the Union, the lower court has two possibilities of action against that judgment: do not apply it, if it is obvious and evident in the light of a judgment of the TJUE that is contrary to community law, or raise a preliminary ruling for the Court of Justice that is pronounced. And this is what the audience of Seville has done.

But in this context, the president of the Constitutional Court breaks into the scene, which, according to the press news, the possibility of adopting measures that prevent the Seville Audience to raise the preliminary ruling to be applied immediately and without clipk of the TC is applied immediately.

If this action was confirmed we would be facing a situation of special gravity, because it would reveal an absolute ignorance of that principle of primacy of EU right, of the norms that regulate the procedures before the TJUE, of the special transcendence of the preliminary ruling and, above all, of the independence of the judges and magistrates, which for the TJUE constitutes the key of the rule of the rule of law.

The TJUE has declared that the principle of primacy of the law of the Union opposes that the norms of a Member State force national judges to respect resolutions of a constitutional court when they are contrary to the right of the Union. He has also sentenced that, in order to protect judicial independence, there should not be a disciplinary regime that allows the judges to be sanctioned for not observing the resolutions of a constitutional court contrary to the right of the Union and, even less, for having exercised the power to raise prejudicial issues. Finally, community law is opposed to a national norm under which the national jurisdictional bodies would not be empowered to examine compliance with the right of the union of a national regulations that have been declared constitutional by a judgment of the TC of that Member State. Therefore, if the Constitutional Court or its President undertook actions that could be qualified as coercion to the magistrates of the Seville Court could be placed in a field of a criminal nature with unpredictable consequences.

The providence of the Seville audience is not a vacuum leap. It has been alerted that the constitutional judgment can generate a systemic risk of impunity with respect to the infractions of severe fraud, which would mean the breach of the obligations of the Kingdom of Spain with the EU that derive from article 325, section 1, of the EU operation treaty, according to which the member states are obliged to fight against fraud and all illegal activity that affects the financial interests of the union. One side, and to prevent and combat corruption in general, and to provide effective and deterrent sanctions in case of such infractions.

These considerations are sufficient and justified reason for the Seville audience to raise the prejudicial issue. And neither the Constitutional Court nor its president can prevent it in any case nor under any circumstances.

*Rafael García-Valdecasas is a state lawyer and former judge of the EU General Court