CJEU clarifies obligation of national supreme and constitutional courts to refer preliminary questions (C-322/16)


In its Judgment of 20 December 2017 in Global Starnet, C-322/16, EU:C:2017:985, the Court of Justice of the European Union (CJEU) followed the Opinion of AG Wahl and clarified that a national court of last instance is under an Art 267 TFEU obligation to refer a question for preliminary ruling to the CJEU even if the constitutional court of that Member State has already assessed the constitutionality of national rules in the light of regulatory parameters with content similar to rules under EU law.

The case concerned the amendment of the terms of licences for the online operation of gaming during their term, and the challenge was based on principles of legal certainty and protection of legitimate expectations, which are common to EU law and to the constitutional frameworks of the EU's Member States (in this case, Italy). From that perspective, the Global Starnet Judgment can be particularly relevant for cases involving claims based on the EU Charter of Fundamental Rights and could create a push for a more significant role for the CJEU as a constitutional court for the Union.

There are a few passages of the Global Starnet Judgment that I find particularly interesting:

... a national court which, in a case concerning EU law, considers that a provision of national law is not only contrary to EU law, but also unconstitutional, does not lose the right, or escape the obligation under Article 267 TFEU, to refer questions to the Court of Justice on the interpretation or validity of EU law by reason of the fact that the declaration that a rule of national law is unconstitutional is subject to a mandatory reference to the constitutional court. The effectiveness of EU law would be in jeopardy if the existence of an obligation to refer a matter to a constitutional court could prevent a national court hearing a case governed by EU law exercising the right conferred on it by Article 267 TFEU to refer to the Court questions concerning the interpretation or validity of EU law in order to enable it to decide whether or not a provision of national law was compatible with that EU law ...

... the effectiveness of EU law would be impaired and the effectiveness of Article 267 TFEU diminished if, as a result of there existing a procedure for review of constitutionality, the national court were precluded from referring questions to the Court for a preliminary ruling and immediately applying EU law in a manner consistent with the Court’s decision or case-law ...

Furthermore, although it is true that the procedure laid down in Article 267 TFEU is an instrument for cooperation between the Court of Justice and the national courts, by means of which the former provides the latter with the points of interpretation of EU law necessary in order for them to decide the disputes before them, the fact remains that when there is no judicial remedy under national law against the decision of a court or tribunal of a Member State, that court or tribunal is, in principle, obliged to bring the matter before the Court of Justice under the third paragraph of Article 267 TFEU where a question relating to the interpretation of EU law is raised before it ...

The fact that the [domestic Constitutional Court] gave a ruling on the compatibility of the provisions of national law ... with the provisions of the [national] Constitution which the referring court regarded as constituting, in essence, the same regulatory parameters as [EU law] has no bearing on the obligation, laid down in Article 267 TFEU, to refer questions concerning the interpretation of EU law to the Court of Justice (C-322/16, paras 21 & 23-25, references omitted and emphases added).

New paper on the need to review the Remedies Directive

I have uploaded a new paper on SSRN: ‘If it Ain't Broke, Don't Fix It’? EU Requirements of Administrative Oversight and Judicial Protection for Public Contracts, to be published in S Torricelli & F Folliot Lalliot (eds), Administrative oversight and judicial protection for public contracts (Larcier, 2017) forthcoming.

As detailed in the abstract: 

EU public procurement law relies on the specific enforcement mechanisms of the Remedies Directive, which sets out EU requirements of administrative oversight and judicial protection for public contracts. Recent developments in the case law of the CJEU and the substantive reform resulting from the 2014 Public Procurement Package may have created gaps in the Remedies Directive, which led the European Commission to publicly consult on its revision in 2015. One year after, the outcome of the consultation has not been published, but such revision now seems to have been shelved. This chapter takes issue with the shelving of the revision process and critically assesses whether the Remedies Directive is still fit for purpose. 

The chapter focuses on selected issues, such as the interplay between the Remedies Directive and the Charter of Fundamental Rights, and with the general administrative law of the Member States. It also assesses the difficulties of applying the Remedies Directive ‘as is’ to some of the new rules of the 2014 Public Procurement Package, which creates uncertainty as to its scope of application, and gives rise to particular challenges for the review of exclusion decisions involving the exercise of discretion. The chapter also raises some issues concerning the difficulties derived from the lack of coordination of different remedies available under the Remedies Directive and briefly considers the need to take the development of ADR mechanisms into account. Overall, the chapter concludes that there are important areas where the Remedies Directive requires a revision, and submits that the European Commission should relaunch the review process as a matter of high priority.

The paper is freely downloadable at http://ssrn.com/abstract=2821828. As always, comments welcome.


In his Opinion of 23 February 2016 in case Ognyanov (C-614/14, EU:C:2016:111, not available in English), Advocate General Bot addressed the question whether, regarding the content of a reference for a preliminary ruling, compliance with Articles 267 TFEU and 94 of the Rules of Procedure of the Court of Justice of the European Union (CJEU) by a domestic criminal court may impair the exercise of the rights guaranteed in Articles 47 (right to a fair trial) and 48 (presumption of innocence) of the Charter of Fundamental Rights of the European Union (CFR). AG Bot answers in the negative. He considers that a national rule that presumes that referring a case to the CJEU for a preliminary ruling is a breach of judicial impartiality, and therefore requires the referring criminal court to inhibit itself (and face disciplinary sanctions) upon having referred the case to the CJEU is contrary to EU law. In my view, AG Bot raises important points on the need to keep an effective level of judicial cooperation between the domestic courts and the CJEU, also when criminal matters are concerned. However, some parts of the reasoning in the Opinion are too formal and too heavy-handed in favour of the CJEU's monopoly of interpretation of EU law and the effectiveness of the preliminary reference mechanism, at the expense of a substantive assessment of the proper respect to the presumption of innocence guaranteed by Art 48 CFR. In my view, a more nuanced position would be preferable, even if it requires a revision of the rules of procedure of the CJEU in relation to preliminary references in criminal law matters.

The case at hand concerns criminal law enforcement in Bulgaria, where a domestic rule concerning breaches of judicial impartiality could be interpreted so as to require a referring national court that has laid out the factual background and the law applicable to the case for the purposes of the reference to the CJEU, to inhibit itself from any further decisions in a criminal case (and face disciplinary action).

In particular, the dispute is about the 'EU law-compliant' interpretation of Art 29(2) of the Bulgarian Code of Criminal Procedure (BCCP), which  establishes that 'A judge ... may not be part of the court composition due to some other circumstances on account of which he/she may be considered biased or interested, directly or indirectly, in the outcome of the case'. In stylised terms, the argument is that, by laying out the relevant facts and the rules applicable thereto, the national court expresses a 'preliminary view' on the substance of the case. By doing so before the case is at deliberation phase, and then refraining from inhibiting itself from further decisions in the case, the criminal court would be breaching its duty of impartiality (which is a fundamental guarantee of the right to a fair trial) and the accused's right to the presumption of innocence.

In case this interpretation was accepted, this would create a significant issue of coordination of EU law and domestic criminal law in the Member States--which may well be an unresolved issue in the deepening of judicial cooperation in criminal matters in the EU, since there are no special rules for the purposes of a reference for a preliminary ruling in criminal law matters under Art 94 of the rules of procedure of the CJEU (as acknowledge by AG Bot in para 19). Thus, the case is important beyond the technical point concerning the current rules applicable to the content of references for a preliminary ruling and their effects in criminal law cases, and could easily be pointing out to the need to create such special rules.

In addressing the question referred by the Bulgarian court, AG Bot indeed acknowledges that the referral mechanism 'can create difficulties in situations requiring delicate handling by domestic courts of all jurisdiction and rank' (para 6, own translation from Spanish). However, he rejects that the referral of a case for a preliminary ruling can be interpreted as requiring the inhibition of the referring criminal court (much less the imposition of disciplinary sanctions). His arguments are based both on the need to facilitate judicial cooperation, and on the specific rules applicable to the preliminary reference procedure (para 7). More specifically, AG Bot submits to the CJEU that such a requirement for the inhibition of the referring criminal court would neutralise the effectiveness of Art 267 TFEU and would prevent (Bulgarian) criminal courts from referring cases for a preliminary ruling to the CJEU, which would encroach upon the prerogatives of the Court under Art 267 TFEU--most notably, its monopoly on the interpretation of EU law, which is an issue that comes up again and again in the area of enforcement of fundamental rights under EU law, as became clear in relation to Opinion 2/2013 on the accession of the EU to the ECHR (EU:C:2014:2454; see comments here, here and here).

AG Bot's point of departure is encapsulated in his consideration that 'case law and doctrine have sufficiently stressed that preliminary references are the cornerstone of the Union's judicial system, which exercise concerns the national courts' (para 36, own translation from Spanish). He further relies on Opinion 2/2013, where the CJEU stressed that 'by setting up a dialogue between one court and another, ... between the Court of Justice and the courts and tribunals of the Member States, [the preliminary ruling procedure] has the object of securing uniform interpretation of EU law ... thereby serving to ensure its consistency, its full effect and its autonomy as well as, ultimately, the particular nature of the law established by the Treaties' (para 176). Moreover, he stresses that the proper exercise of the possibility to refer cases to the CJEU for a preliminary ruling is an integral part of the right to a fair trial, as recognised by the European Court of Human Rights (ECtHR) in Dhabbi v Italy (No. 17120/09) (para 38 of AG Bot's Opinion).

All the ensuing analysis concerning the content of the factual and legal requirements of Art 267 TFEU and Art 94 of the rules of procedure (paras 41-72) rests fundamentally on the importance of the exposition of facts and the explanation of the applicable domestic law that the domestic court needs to provide the CJEU for the purposes of enabling the Court to provide a ruling on the proper interpretation of EU law as it relates to the relevant domestic rules. AG Bot stresses that there is no reason to apply different requirements in criminal matters as compared with civil or administrative law cases (para 66, although he offers no further elaboration or support for this position); and that, if anything, the imposition of higher thresholds of precision and motivation in criminal cases would be justified by the impact that the CJEU's ruling can have on the accused's freedom (para 68).

AG Bot proceeds to consider the arguments regarding the lack of impartiality derived from the 'preliminary view' expressed by the criminal court in the referral (paras 73-87). Remarkably, he stresses that '[i]t is clear from settled case law of the European Court of Human Rights that the mere fact that a judge adopts resolutions before the process can not justify by itself any reproaches regarding his impartiality. What should be assessed is the extent of the measures which have been adopted ... Consequently, although a preliminary question before the Court is a court decision, it is not least true that stating, in that context, the circumstances of fact and legal issues inherent to the case constitutes only a mere statement by the national court, which, furthermore, does not to carry out any legal characterisation' (para 83, references omitted, own translation from Spanish, emphasis added). AG Bot supports this argument with his view that, in the specific case, there is no reason to believe that the referring court is biased or partial. This reasoning is, however, problematic because it tries to address a substantive requirement (ie assessment of the extent of the measures) with a formal justification (that, formally, the description of the legal rules applicable to the case by the domestic court does not necessarily imply a definite legal characterisation of the facts of the case).

Moreover, when it comes to the arguments on a potential breach of the presumption of innocence (paras 88-104), the Opinion seems to get into a muddy road. It starts off by acknowledging that the adoption of any preliminary view on the guiltiness of the accused would infringe the right to the presumption of innocence (para 89) and that, consequently, the key element in an analysis of compliance with Art 48 CFR would be to determine whether, in the referral for a preliminary ruling, the domestic criminal court has indicated that it considers the accused guilty, without guilt being duly proven. In my view, this is indeed the proper framework for the analysis. However, AG Bot proceeds to stress that, in the specific circumstances of the case, the accused cannot benefit from the presumption of innocence because he had already been convicted (para 91).

He also indicates that '[i]n any case, we must not forget that the request for a preliminary ruling by a national court is only intended to obtain a correct interpretation of EU law--whereas determining, on the basis of this interpretation, if the accused is to be found innocent or guilty of the facts, is a task that can only result from the unique and personal appreciation of that [national] court' (para 92, own translation from Spanish). Then, he proceeds once more to arguments on the neutralisation or deactivation of the preliminary reference mechanism should domestic courts be forced to inhibit themselves (and face disciplinary sanctions) in case they referred cases to the CJEU (which is circular and returns to the initial points). AG concludes on this point that 'there is no doubt whatsoever that European Union law, and in particular Articles 267 TFEU and 94 of the Rules of Procedure, precludes national legislation ... which, if maintained, could very seriously affect the preliminary ruling mechanism and, with it, the cooperation established between the Court and national courts, and threaten the primacy of EU law' (para 103, own translation from Spanish).

I find this line of reasoning exceedingly formal because it creates an absolute separation between a view on the need of asking for the interpretation of specific legal provisions and the domestic court's position on the need or likelihood to apply that law to the case. Granted, not every instance in which a request is made necessarily indicates that the referring court has reached a decision on whether the rules will be applicable (as this may, in fact, be affected by the outcome of the CJEU's interpretative exercise). However, in my view, it cannot automatically be ruled out that by its nature the content of a reference for a preliminary ruling is inapt to contain an indication of bias by the referring court, or a breach of the presumption of innocence of the accused. Where that was apparent, and in order to properly protect the rights of the individuals affected by the procedure under the CFR, the CJEU shall engage in a substantive assessment to determine whether Art 48 CFR was at risk and, where warranted, include adequate safeguards when deciding on the preliminary ruling--such as, in specific instances, requiring the referring court to inhibit itself in favour of a different court.

Granted, the main difficulty is that there is no procedural avenue for this as Art 94 of the rules of procedure stands--which in my view seems to be more than a good reason to revisit the assumption that the same rules apply for civil/administrative and criminal references for a preliminary ruling (see para 66 of AG Bot's Opinion).

Beyond these issues, I find it troubling that AG Bot submits to the CJEU that it also needs to rule that a discretionary inhibition by the referring court should also be declared contrary to EU law. Specifically, when considering 'whether EU law prevents [the referring national court] from opting, in application of the national rule under dispute, to inhibit itself because that rule ensures a higher level of protection of fundamental rights of the individuals concerned' (para 113, own translation from Spanish), AG Bot argues considers that the question is actually whether 'European Union law precludes the national court's application of a national rule that has been declared contrary to EU law [by the CJEU]?' (para 114, own translation from Spanish). Of course, AG Bot considers that the answer is that EU law indeed prevents the referring court from relying on that rule to opt for discretionary inhibition. 

However, in my view, given that the domestic rule at stake is the fundamental rule for the disqualification of judges in criminal proceedings, this seems way too far fetched. In particular, because Art 29(2) BCCP establishes a general, open-ended standard to ensure judicial impartiality (see above), there seems to be no reasonable way to conclude that, even if the mere fact of having referred the case to the CJEU for a preliminary ruling does not necessarily trigger the application of Art 29(2) BCCP, its application should be completely excluded for the reasons discussed by AG Bot in his Opinion. More leeway is necessary for the referring court to exercise her own discretion and decide whether, all things considered, she is no longer in a position to make further decisions in the criminal process in an impartial way. Any other interpretation would be, in my submission, a breach not only of Article 48 CFR, but also of Article 6(1) of the European Convention on Human Rights, as it ensure the right to a 'fair and public hearing ... by an independent and impartial tribunal established by law'.

Therefore, overall, I would like to see the CJEU decide this case in a more nuanced way than AG Bot proposes. I do not hold very high hopes, though.

My preliminary thoughts on why UK's Referendum Bill franchise infringes Art 18 TFEU

This is just a short development of my thoughts regarding why UK's Referendum Bill franchise infringes Art 18 TFEU. For an analysis of the voting franchise and the difficult issues it raise, see Prof Jo Shaw's excellent piece here. I will develop lengthier arguments in view of the debate I hope this will spur. For now, this is a broad brushstroke presentation of the argument:

Art 18 TFEU prohibits any discrimination on grounds of nationality, and that prohibition of discrimination applies within the scope of application of the Treaties and without prejudice to any special provisions contained therein. As recently stressed by the CJEU in Dano (C-333/13, EU:C:2014:2358) “Every Union citizen may therefore rely on the prohibition of discrimination on grounds of nationality laid down in Article 18 TFEU in all situations falling within the scope ratione materiae of EU law. These situations include those relating to the exercise of the right to move and reside within the territory of the Member States conferred by point (a) of the first subparagraph of Article 20(2) TFEU and Article 21 TFEU”… “the principle of non-discrimination, laid down generally in Article 18 TFEU, is given more specific expression in … Directive 2004/38 in relation to Union citizens who … exercise their right to move and reside within the territory of the Member States” (59 & 61).

I will limit my points to non-UK EU citizens that have resided in the UK for more than five years, which have acquired permanent residency under Art 16 Dir 2004/38 (thought the same arguments apply functionally to the rest of non-UK EU citizens residing in the UK, at least those who are not an unreasonable burden on the social assistance system). 

Those non-UK residents will (likely) see their permanent residency right affected (if not taken away) should the UK pull out (barring a general grandfathering of those rights). While some non-UK EU citizens are given right to vote in the referendum (Irish, Maltese, Cypriots) regardless of any other condition linked to their right to residence under Art 16 Dir 2004/38 or otherwise; others (rest of nationalities) do not get the right to vote on an issue that affects the continuity of the rights acquired under Dir 2004/38—and, ultimately, Arts 20-21 TFEU, which clearly engages Art 18 TFEU. This is discrimination based on nationality and, consequently, prohibited by Art 18 TFEU. Moreover, given the relevance of permanent residence rights for the development of basic human rights as recognised in the EU Charter (such as private and family life, Art 7; or property, Art 17, just to mention the most likely to be affected), this sort of discrimination is unacceptable.

Of course, the only valid argument against this is that Art 50(1) TEU determines that “Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements”. However, even then, it seems contrary to UK constitutional principles to force non-UK citizens to apply for citizenship (if they can) in order to have their basic fundamental rights upheld. Hence, this is not only politically and socially unacceptable, but legally flawed and open to challenge before the Court of Justice of the European Union.

CJEU clearly indicates total lack of will to effectively become EU's constitutional court (C-206/13)

In its Judgment of 6 March 2014 in case C-206/13 Siragusa, the Court of Justice of the EU has continued developing its case law on the lack of applicability / jurisdiction to interpret the Charter of Fundamental Rights of the EU (CFREU) in purely domestic situations (which it had, amongst other instances, already indicated in Romeo).
In my view, the approach adopted by the CJEU is prone to create potential situations of reverse discrimination and may end up creating multiple (and possibly conflicting) standards of protection of fundamental rights in the EU with significant constitutional implications.
In the case at hand, the CJEU was presented with a question on the interpretation of the right to property recognised in article 17 CFREU and, more specifically, on whether it could be constructed as a limit against certain landscape protection rules applicable in Italy. The issue was raised by an Italian court hearing a dispute between an Italian citizen and an Italian public authority. Despite the efforts in trying to connect the situation with the (indirect) application of EU environmental law, the CJEU was not persuaded that there was a sufficient connection and, therefore, rejected to provide a substantive interpretation. The main argument of the CJEU was indeed that
30 [...] there is nothing to suggest that the provisions of Legislative Decree [...] fall within the scope of EU law. Those provisions do not implement rules of EU law [...].

31 It is also important to consider the objective of protecting fundamental rights in EU law, which is to ensure that those rights are not infringed in areas of EU activity, whether through action at EU level or through the implementation of EU law by the Member States.

32 The reason for pursuing that objective is the need to avoid a situation in which the level of protection of fundamental rights varies according to the national law involved in such a way as to undermine the unity, primacy and effectiveness of EU law (see, to that effect, Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125, paragraph 3, and Case C‑399/11 Melloni [2013] ECR, paragraph 60). However, there is nothing in the order for reference to suggest that any such risk is involved in the case before the referring court.

33 It follows from all the foregoing that it has not been established that the Court has jurisdiction to interpret Article 17 of the Charter (see, to that effect, Case C‑245/09 Omalet [2010] ECR I‑13771, paragraph 18; see also the Orders in Case C‑457/09 Chartry [2011] ECR I‑819, paragraphs 25 and 26; Case C‑134/12 Corpul Naţional al Poliţiştilor [2012] ECR, paragraph 15; Case C‑498/12 Pedone [2013] ECR, paragraph 15; and Case C‑371/13 SC Schuster & Co Ecologic [2013] ECR, paragraph 18)
(C-206/13 at paras 30-33, emphasis added).
In my view, this line of reasoning (acknowledgedly, rather in line with art 51 CFREU and art 6 TEU) is clearly problematic. To begin with, because it clearly disconnects (implicitly, at least) the protection of the CFREU rights from EU citizenship (art 20 TFEU, coupled with the general prohibition of discrimination on the grounds of nationality in art 18 TFEU). The CJEU has clearly considered it insufficient that EU citizens can be granted different levels of protection of their CFREU rights at domestic level as a result of the application of the domestic laws as sufficient justification for intervention (i.e. to assume jurisdiction and provide legal interpretation). By restricting the goal of a common level of protection of CFREU rights to cases in which 'the unity, primacy and effectiveness of EU law' is affected and excluding its competence, the CJEU seems to forget that the CFREU is in itself EU law and, consequently, that it should be afforded the same treatment as the other Treaty provisions.
Secondly, the CJEU is laying down too strong foundations for unresolved problems of reverse discrimination. If the claimant in Siragusa had not been Italian and, consequently, a (very loose) connection to free movement rights could be established, the CJEU may have been willing to assess the intervention by the Italian State on the property of a (moving) EU citizen under a different light (worse still, that challenge could be easier for corporate claimants than for individuals, at least if they do not engage in an economic activity, since 'corporate citizens' could also be potentially protected by freedom of establishment).
In such a case, the trigger for the application of the CFREU would be equally unrelated to the content of the rights of the CFREU themselves and, sometimes, the trigger for CJEU intervention may simply result from the fact that the EU citizen affected exercised or not free movement rights--which, in my view, continues to create an unjustifiable discrimination between moving (proper) EU citizens and non-moving (unaware) EU citizens that can only continue to erode the potential development of the EU.
Finally, this line of reasoning may end up creating a situation where the (constitutional) courts of the Member States may be obliged to enforce at the same time conflicting standards of substantive protection for a given fundamental right, depending on the 'sorce of law' that controls it in a given situation. And that will surely be difficult to understand. How could 'my' right to private property be different under 'my' domestic constitutional law protection or under 'my' CFREU protection, depending on factors unrelated to me, my property, or the rules (primarily) applicable? Surely the compatibility between the CFREU and competing (superior) standards of protection (those derived from the European Convention on Human Rights) have (somehow) been ironed out in art 52(3) CFREU. However, the situation is not the same with (lower-ranking?) domestic standards of protection [art 52(4) CFREU is clearly insufficient for that task] and, in my view, the CJEU approach is not helpful in that regard either.
Therefore, the continued rejection of its role as a constitutional court of the EU and the increasing restriction of the scope of application of the CFREU in which the CJEU is engaged are, in my view, undesirable developments in EU law.

Is Costa v Enel forgotten? CJEU trips over supremacy and direct effect in case concerning Art 41(2)(c) CFREU (C-313/12)

In its Judgment of 7 Movember in case C-313/12 Romeo, the Court of Justice of the EU issued an important ruling concerned with the extension of the obligation to state reasons derived from Article 41(2)(c) of the Charter of Fundamental Rights of the EU in purely domestic situations.
In the case at hand, the CJEU was especifically presented with a query regarding the compatibility with Article 41(2)(c) CFREU (and, more generally, with the case law on the duty to state reasons) of an Italian rule whereby faulty administrative decisions would not be quashed if the authorities supplemented their statement of reasons in subsequent court proceedings.
In my view, the reasons offered by the CJEU to decline jurisdiction to respond to the questions referred by the Italian court show a poor understanding of (or a lack of willingness to give effect to) the changed nature of the Charter after the entry into force of the Treaty of Lisbon. As very clearly stated, 'the EU Charter of Fundamental Rights is now legally binding, having the same status as primary EU law' [for discussion, see S Douglas-Scott, 'The European Union and Human Rights after the Treaty of Lisbon' (2011) Human Rights Law Review 11(4): 645-682].
In that regard, keeping in mind that Article 6(1) of the Treaty on European Union now very clearly indicates that 'The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of  [...] which shall have the same legal value as the Treaties' (emphasis added), it is very hard to understand how the CJEU can have unblinkingly held that:
it cannot be concluded that [...] Article 41(2)(c) of the Charter or indeed other rules of European Union law concerning the obligation to state reasons for acts have been made directly and unconditionally applicable (sic), as such, by [the relevant Italian rules], so that internal situations and situations relating to European Union law are treated in the same way. Therefore it must be held that, in the present case, there is no clear European Union interest in a uniform interpretation of provisions or concepts taken from European Union law, irrespective of the circumstances in which those provisions or concepts are to apply (C-313/12 at para 37, emphasis added).

I cannot get my head around the fact that, as no one would doubt, the CJEU has kept for time immemorial the position that the Treaties (now including the Charter of Fundamental Rights  for these purposes) are supreme and directly effective without any need for internal measures that receive them or recognise that they are directly and unconditionally applicable in all EU Member States--and, yet, it shows a stark resistance to apply these principles to the Charter (see also C-482/10 Cicala).
As very clearly summarised in Costa v Enel,
A Member State's obligation under the [Treaty], which is neither subject to any conditions nor, as regards its execution or effect, to the adoption of any measure either by the States or by the Commission, is legally complete and consequently capable of producing direct effects on the relations between Member States and individuals. Such an obligation becomes an integral part of the legal system of the Member States, and thus forms part of their own law, and directly concerns their nationals in whose favour it has created individual rights which national courts must protect (6/64, summary, point 7).
This, together with Art 6(1) TEU surely determines the supremacy and direct effect of the Charter--as also supported by an a contrario interpretation of Protocol No 30 on the Application of the Charter of Fundamental Rights of the European Union to Poland and the United Kingdom (what would be the purpose of the Protocol if not precisely to exclude such supremacy and direct effect regarding the UK and Poland?). Then, if the CJEU has not forgotten Costa v Enel, the only relevant question is: how are Judgments like Cicala and Romeo possible? Why is the CJEU (suddenly) so averse to (continuying to) act as constitutional court at EU level?