Elchinov

Today the Grand Chamber of the European Court of Justice ruled in Елчинов v. Национална здравноосигурителна каса, or, in Latin script, Elchinov v. Natsionalna zdravnoosiguritelna kasa. Just like today's other Grand Chamber case, Commission v. France, it was a case about the free movement of medical services, including Regulation 1408/71. The French won, the Bulgarians didn't. (For more facts on Elchinov, cf. here.)

However, there is something special about Elchinov beyond this medical services stuff. The brand new Advocate General Cruz Villalón used it to advocate for the Court to overturn a 37 year old precedent: Rheinmühlen-Düsseldorf v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel. (And yes, 37 years is pretty old for an ECJ precedent.) In Rheinmühlen - a case ruled in a time when both the answers and the questions were still simple - the ECJ held that:

THE EXISTENCE OF A RULE OF DOMESTIC LAW WHEREBY A COURT IS BOUND ON POINTS OF LAW BY THE RULINGS OF A COURT SUPERIOR TO IT CANNOT OF ITSELF TAKE AWAY THE POWER PROVIDED FOR BY ARTICLE 177 OF REFERRING CASES TO THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES.

In Elchinov that meant that the referring court, the administrative court of Sofia-grad, was bound under Bulgarian law by the ruling on points of law of the Supreme Administrative Court, which had considered the case and had referred the matter back to the lower court for further consideration consistent with its ruling. At the same time, however, the referring court had the right, under Rheinmühlen, to ignore the binding force of the Върховният административен съд's ruling and ask a prejudicial question. (Which presumably the SAC should have done, but didn't.)

The AG argued that there was no reason to disturb the distribution of power between the lower and the higher court, since it is a matter of Bulgarian procedural law. If there is a prejudicial question to be asked, it is the obligation of the higher court to ask it. (This obligation flows directly from art. 267(3) TFEU if the higher court is also the highest court, as it was here.) If the higher court fails to ask such a question, remedies are available under Francovich and under Brasserie du Pêcheur & Factortame. Sensible federalism implies that we do not mess with the constitutional arrangements of the Member States unless it is absolutely necessary, and it does not appear to be necessary here, at least not anymore, as AdjudicatingEurope puts it.

The Grand Chamber today disagreed. It argued that the competence to ask a prejudicial question flows directly from the Treaty, meaning that no rule of national law may interfere with it. In fact, given the primacy of EU law, the lower court may even ignore the higher court's ruling without first asking a prejudicial question. (The ECJ cites Kücükdeveci, par. 54-55 for this proposition.) The result is that the ECJ will continue to undermine the authority of MS Supreme Courts over their inferior courts. All MS courts will receive in equal measure the wisdom of Luxembourg dicta, without the Court favouring higher courts over lower ones, that is to say without any kind of pluralist dialogue.

(Remember, under the AG's preferred rule, if a MS lower court were faced with - in its view - conflicting precedents from its own higher court and from Luxembourg, its first instinct should and would have been to try to reconcile the two through some form of Community law conform interpretation of the national law. That is to say, there would be some attempt at a compromise, instead of the current system of CYA.)