Constitutional Pluralism and Judicial Cooperation in the EU after the Eastern Enlargements: A Case Study of the Czech and Slovak Courts

Abstract

The article’s objective is to rethink the current understanding of the European constitutional space in light of the Eastern enlargement that brings a different constitutional thoughts and language of the CEE constitutional courts (and scholars) into this space. The current scholarship understands the European constitutionalism as based on co-existence of MS constitutions and the EU ‘constitutional charter’. The peaceful co-existence is ensured through a dialogue between the constitutional interpreters (constitutional courts and the Court of Justice). This constitutional construct replaces the Kelsenian system, which has worked well in centralised sovereign state of Westphalian type, but is an obstacle for development of poly centred European Union. After the fall of the communist regimes, CEE countries were faced with re-constitutionalization. They looked into their democratic interwar past and revived old concepts, although sometimes enriched with western constitutional solutions and human rights achievements. However, this decision mostly neglected fifty-year development of Euro-Atlantic constitutionalism. After fifteen years of constitutionalisation, the old concepts rooted (back) in these systems. Such an inherent vision of legal order makes it intellectually difficult for the new Member States’ constitutional courts to grasp the idea of constitutional pluralism, which they try to avoid by dragging the European legal order into their national legal orders.

This foreign element in the European constitutional space creates a new dense and complicated network of channels of cooperation and its modes. Especially in the area of material inter-judicial cooperation, the constructive dialogue mode is vastly compromised by unilateral actions that are closer to bargaining than dialogue. However, the declared openness of a vast area of constitutional law towards effects of the European constitutional principles and, though unwelcome, reformulation of EU law requirements into national constitutional obligations promises to lead to much needed transformation of constitutional culture in the post-communist states.

Keywords: European law, constitutional law, constitutional pluralism, Court of Justice of the EU , Constitutional Court of the Czech Republic, Constitutional Court of the Slovak Republic, judicial cooperation, Eastern enlargement, preliminary question, transfer of competences