EU Constitutional Conflicts and Constitutionally Conforming Interpretation
19 Pages Posted: 10 Apr 2024
Date Written: April 9, 2024
Abstract
This paper considers the relevance of the idea of constitutionally conforming interpretation (CCI) to intersystemic interactions between EU law and domestic constitutional law. Constitutionally Conforming interpretation provides a useful tool to manage judicial discretion in interpreting and applying the law to ensure respect for certain core values such as democracy, the rule of law and the separation of powers. However, its relevance to interactions between legal systems is more complex than its use within a legal system to achieve a measure of coherence between statutory provisions and constitutional norms. Focussing on the interactions between EU law and national constitutional law, the paper considers two archetypes of interaction: regulated and unregulated cases. Regulated cases, such as MacCormick’s ‘pluralism under international law’ seem a good fit for CCI where the higher order norm (or ‘constitution’) in question are the norms of international law to which domestic, or EU law, should conform. Unregulated cases, such as ‘radical pluralism’, on the other hand seem less relevant to CCI as there is not an agreed ‘constitution’ to conform to. The paper goes on to argue that CCI can also be relevant to unregulated cases of interaction if we take an interpretive approach to such interactions. This involves viewing such interactions as involving interpretations of a common value where divergences and potential conflicts emerge as rival conceptions of what presents that value in its best light. The value in question is identified as the value of EU law in terms of the political value of supranational cooperation governed by law. When viewed in this way, putative unregulated cases of interaction can be ‘re-regulated’ according to this common value. It provides a loose standard which can form the basis of CCI even in these types of interactions. The paper concludes that this focus also helps filter out forms of divergent or conflictual interpretations which cannot be understood as interpretations of this common value and can therefore be dismissed as pathological. Certain recent judgments from the captured tribunals of EU member states which have recently been engaged in programmes of constitutional values-regression provide examples of such pathological non-conforming interpretations.
Keywords: Constitutionally Conforming interpretation – legal interpretivism- constitutional pluralism – EU Values regression
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