Effet Utile as a Unifying Doctrine in a Constitutionally Pluralist Europe

Abstract

The article shows how a particular effet utile argumentation may help to overcome disagreements that emerge among overlapping legal orders guarded by distinct “constitutional” courts – national constitutional courts, the Court of Justice of the European Union, and the European Court of Human Rights. The effectiveness of decisions of these courts depends to a great extent on domestic general courts, because it is the latter that supervise the enforcement while relying on the expertise of the former. Disagreements between several “constitutional” courts of the overlapping legal orders either confuse the domestic general courts or provide them with choice for which to make they lack the expertise (and authority). To limit these disagreements we need to search for such interpretation tools that would take into account reasonable interests of the other “constitutional” courts of the overlapping legal orders. Such concerted approach may be achieved through the concept of composite effet utile that focuses on effet utile of governance in the European constitutional space, and may therefore enhance the application of constitutional rights and obligations that are common to the overlapping legal orders, rather than emphasizing the effectiveness of provisions of a single legal order at the expense of the other legal orders.

Keywords: effet utile, principle of effectiveness, Court of Justice of the European Union, constitutional courts, European Court of Human Rights, Czech Constitutional Court, Czech Supreme Court, Landtová case, Slovak Pensions, Centro Europa, constitutional pluralism