Prior filtering out and a green light This national actio popularis europae would be subject to a filtering exercise before the national constitutional court to ensure that the expedited “constitutional reference” is appropriate in the case. In the context of Art. 267 TFEU (ex-Art. 234 EC) references, Xxxxxx XX in Wiener214 noted that: “a reference will be most appropriate where the question is one of general importance and where the ruling is likely to promote the uniform application of the law throughout the European Union.” In filtering these national petitions (and so encouraging national constitutional courts to take responsibility in making references), what criteria are there to assist such determination? The ECJ, in respect of Art. 267 TFEU references, has itself rejected such references if the questions posed are inadequate,215 or are clear (acte clair) or have already been clarified (acte éclairé)216 while Xxxxxx XX suggested again in Wiener217 that a reference would not be appropriate – “where there is an established body of case law which could readily be transposed to the facts of the instant case; or where the question turns on a narrow point considered in the light of a very specific set of facts and the ruling is unlikely to have any application beyond the instant case.”218 In such circumstances, the constitutional court could refuse to make a reference and decide the matter for itself. Moreover, if the constitutional court considers that no issue concerning the essential core of national sovereignty is raised in the petition, then it would reject the petition. Nevertheless, following Xxxxx,219 it would be necessary – in the absence of Treaty changes – for the ECJ to revise its CILFIT criteria so as to “encourage” the making of these types of references. Might it be possible to note that where a provision of European law has a “sufficiently serious” impact on national constitutional law, the constitutional court should refer? “Sufficiently serious” would, of course, be subject to interpretation by the ECJ in order to guide constitutional courts. Such amendment of XXXXXX might be accompanied by development or revision of the Köbler220 case-law so as to provide a real and effective remedy against refusals to refer which the ECJ could properly monitor. Where, on the contrary, the constitutional court accepts that a national sovereignty point is raised, it would be required to hear oral argument on the matter before it. Following such argument, an expedited refere...
