Constitutional Pluralism Is Not Dead: An Analysis of Interactions between Constitutional Courts of Member States and the European Court of Justice
German Law Journal, Vol. 18, Forthcoming
23 Pages Posted: 12 Oct 2016 Last revised: 16 Oct 2016
Date Written: October 10, 2016
In the past decade, the theory of constitutional pluralism witnessed immense success in its attempt to explain the relationship and the division of competences between supreme jurisdictions performing constitutional review in the Member States and the European Court of Justice. More recently, the theory of constitutional pluralism has received harsh criticism in the light of the interpretations put forward by the German Federal Constitutional Court, where it retained for itself the ultimate power to interpret the core of the German Basic Law, even at the cost of a serious clash with the Court of Justice. This paper argues that a proper reading of the Treaties, but also the formal and informal expressions of all the judicial actors involved, supports a heterarchical and multilateral approach. The paper analyses judgments, institutional documents and reports, as well as public statements and writings of current and former members of the Court of Justice and national constitutional jurisdictions across the EU. The analysis seeks to demonstrate that the use of common keywords points to the existence of a shared understanding of the division of obligations among the participants of the European judicial space. The actual implementation of the keywords used, the exhibited self-restraint and a self-imposed obligation to avoid conflict points to the conclusion of a strong awareness of the importance of preserving the pluralist setting, present both on the side of national constitutional jurisdictions, and the Court of Justice.
Keywords: constitutional pluralism, judicial dialogue, constitutional courts, European Court of Justice
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