Constitutional Adjudication in Europe between Unity and Pluralism

Abstract

The special issue firstly explores the relationships between national constitutional judges and supranational courts, both the ECJ and the European Court of Human Rights, as grounds of cooperation, competition and sometimes of conflict. In the first section of the special issue, Paris deals with this issue from the perspective of EU Member States’ constitutional courts’ case law on the limits to the primacy of EU law. Through a comparative analysis the author shows that important similarities can be detected in this jurisprudence. Moreover, if constitutional review of EU law is performed by constitutional courts in a cooperative manner vis-à-vis the ECJ and within certain boundaries as for the disapplication of EU law, it can even foster the creation of a European legal space where the protection of fundamental rights and of the rule of law across the Member States and in the EU is enhanced while national peculiarities are preserved.

Alessia Cozzi’s essay deals with a hypothesis of silent coordination of the fora of constitutional adjudication. Cozzi investigates decisions of national supreme and constitutional courts that implicitly follow a previous European Court on Human Rights (ECtHR) judgment without explicitly referring to it. Her article aims at understanding in which cases this implicit coordination is performed and why national courts are reluctant to make this approach explicit, hiding a successful coordination and turning a battleground into a meeting ground without emphasizing this transformation. Finally, the third essay of the first section deals with the interesting case study of the Belgian Constitutional Court, placed in a comparative perspective. It raises a problem of general and systematic interest for the identification of a system of constitutional adjudication in the EU and the exploration of its procedures and challenges.

This case study is extremely promising, as little research has examined whether constitutional courts employ the same strategies applied domestically, when violations of European and international law occur through legislative omissions. Omissions may be an insidious battleground for national and supranational courts, and Verstraelen’s article demonstrates a versatile approach of Member States’ constitutional courts in order to accommodate the potential fragmentation of national judges’ responses with the need to ensure unity and uniformity of EU law.

The second section of the special issue is devoted to test the model of the composite European constitutional adjudication under pressure. The Euro-crisis offered an ideal stress test. Whereas legal analysis on the constitutional dimensions of Euro-crisis abounded, some specific aspects of this picture were overlooked also in those jurisdictions where the Euro-crisis had a remarkable impact. A first underestimated aspect concerns the role played by lower courts, often contradicting supreme and European courts. Pavlidou’s article addresses this vastly overlooked aspect, by examining how domestic lowest courts in Greece safeguarded social rights by resorting to alternative constitutional sources and by indirectly enforcing constitutional provisions in order to constitutionalize social rights. Her essay juxtaposes this practice to the opposite interpretation of austerity measures by the European and Supreme Greek courts. In light of this, she analyzes the implications of this contradictory judicial review both in terms of the scope of social rights and conceptions of unity and diversity within the multiple levels of adjudication.

Another vastly overlooked aspect in the Euro-crisis scholarship is the absence of preliminary references to the ECJ for the ‘harmonization’ of social rights adjudication stemming from the same supranational instruments. Constitutional courts were eager to solve cases by invoking solely their own constitutional interpretation and standards. Pierdominici’s article tries to fill this gap in the scholarship, questioning constitutional courts’ reluctant approaches toward preliminary references aimed at guaranteeing (European) standards of protection of social rights. Fasone’s essay is devoted to look at the impact of constitutional adjudication on Euro-crisis measures on the role of legislatures, in this critical conjunction, to ascertain whether common challenges to representative democracy have led to unitary or plural (and divergent) judicial responses to the issues of Parliaments’ displacement in Euro-crisis procedures. In particular, the article investigates in this framework how constitutional courts have resorted to the argument of the national constitutional identity showing that, due to several circumstances, the protection of parliamentary powers and, ultimately, of the principle of representative democracy has been of little concern for most constitutional courts in such a critical juncture. After having tested current trends of constitutional adjudication on the battleground of Euro-crisis measures, the third section of the special issue explores possible procedures and remedies to settle emerging conflicts.

In this section, Andrea Edenharter claims that in the long run, a legal reconciliation within the EU can only be achieved if national courts enjoy at least some discretion in cases in which EU law allows for the application of national fundamental rights, because otherwise, national constitutional courts might challenge the ECJ’s role as Supreme Court of the EU and thus damage the project of reconciliation as such. Edenharter’s essay deals with the core problem of the possible existence of a system of constitutional adjudication in the area of fundamental rights review. In this respect, her article analyses two possible legal tools that may facilitate the function of such a system of constitutional adjudication. On the one hand, the margin of appreciation doctrine developed by the ECHR should be adopted by the ECJ. On the other hand, the principle of discretion can also be applied in favor of the ECJ, with national constitutional courts reducing the intensity of scrutiny towards the ECJ in accordance with the German Federal Constitutional Court’s position in Honeywell. Zaccaroni’s paper deals with the need of reconciliation of Member States’ constitutional identities and EU law from a different perspective. His article holds this reconciliation as a necessary assumption to make a system of constitutional adjudication workable in the EU. The essay emphasizes the contribution of some recent decisions of the EU for the identification of the concept of EU constitutional identity. Zaccaroni’s aim is to assess how to reconcile the theoretical position of the ECJ with the one of the national constitutional courts, and in particular, the possibility to reconcile the pluralism of national constitutional identities with the (desired) unity of the EU constitutional identity. His essay investigates two possible solutions: a) a clear theorization of an evolutionary interpretation of the principle of conferred powers; b) a real judicial cooperation between EU and national constitutional judges. In the latter perspective, Zaccaroni claims that constitutional courts should openly recognize the existence of an EU constitutional identity. Additionally, his essay claims that a system of constitutional adjudication would benefit from a mechanism of “reverse” preliminary ruling (from the ECJ to national constitutional courts), when identity-related conflicts are at stake.

Finally, the last article of the section investigates the legal and practical obstacles to the full affirmation of the ECJ as a constitutional adjudication forum. Starting with the fact that the ECJ is increasingly emerging and self-identifying as a constitutional Court, Carlo Tovo argues that the revision of the ECJ’s rules of procedure, along with the reform of the General Court, may play a major role in strengthening the constitutional adjudication of the Court’s activity. Tovo explores the new centrality of the preliminary ruling proceedings in the revised rules of procedure of the Court of Justice, in connection with the actual and future delimitation of jurisdiction between the ECJ and the General Court. Then, his article focuses on the procedural arrangements introduced by the revised ECJ Rules of procedures and other sources, aimed at balancing the need to ensure the coherence and uniformity of EU law and to strengthen the ‘constitutional authority’ of the Court. Before the special section on “The View from the Bench”, Gábor Halmai presents some conclusive remarks, providing a critical account of the use of the notion of constitutional identity by Member States’ Supreme and Constitutional courts. This is a key element to grasp the tension between unity and pluralism in the composite system of constitutional adjudication. Halmai argues that while a genuine reference to national identity claims is legitimate insofar as a fundamental national constitutional commitment is at stake, the abuse or misuse of constitutional identity by Constitutional courts “is nothing but constitutional parochialism” that can undermine the whole European constitutional construction and subvert the basic principle of sincere cooperation.

Keywords: Cconstitutional adjudication, Europe, EU law, ECHR, Courts