How much lenience for how much cooperation? On the first preliminary reference of the French Constitutional Council to the Court of Justice

Abstract

The French Conseil constitutionnel was by no means a likely candidate to refer a case to the Court of Justice under Article 267 TFEU. Such a bold move was highly unexpected in view of its limited jurisdiction, its usual emphasis on the supremacy of the French Constitution, and its constitutional identity narrative. Yet, the hardly thinkable became true in April 2013 in connection with the implementation of the European Arrest Warrant. In response to a cooperative Conseil, the ECJ displayed its willingness to accommodate the requirements deriving from domestic constitutional law. In doing so, it offered a positive illustration of Melloni and Akerberg Fransson by promoting the application of national standards of protection of human rights in cases falling within the scope of application of EU Law, yet not entirely determined by it.