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Constitutional Pluralism Is Not Dead: An Analysis of Interactions Between Constitutional Courts of Member States and the European Court of Justice

Published online by Cambridge University Press:  06 March 2019

Abstract

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The theory of constitutional pluralism as advanced by MacCormick and Walker witnessed immense success in its attempt to explain the relationship between courts of Member States performing constitutional review and the Court of Justice. Despite its success, the theory has often been criticized for its lack of normative prescriptions and legal certainty in resolving the question of the final arbiter in the EU. It is the aim of this Article to address and move beyond these criticisms by introducing and exploring the auto-correct function necessary for the proper and balanced functioning of the pluralist system.

The auto-correct has the function of preventing an outbreak of conflict between the constitutional jurisdictions involved—in the EU judicial architecture, an awareness on the part of all the actors involved of the benefits of a pluralist setting results in conflict management and control. The auto-correct function operates as follows: in the EU as we know it, issues prone to constitutional conflict arise regularly, and both the Court of Justice and national constitutional jurisdictions are able, through their respective procedural avenues, to control the extent of the conflict. There are also two legal imperatives driving this dynamic in two opposite directions—the principle of primacy of Union law on the one hand, and the obligation to respect the national identity of Member States on the other.

As analyzing judicial behaviour shows, the application of self-restraint and mutual accommodation avoids a clash between parallel sovereignty claims on EU and national levels. In particular, national and EU law interaction demonstrates the existence of in-built conditions for the auto-correct function's application, such as the principle of EU-friendly interpretation in national constitutional law, or the national identity clause in primary EU law. The auto-correct function manifests itself and brings about a balance between the different constitutional orders only through the interaction of parallel claims to sovereignty.

Type
European Jurisprudence
Copyright
Copyright © 2017 by German Law Journal, Inc. 

References

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115 Regarding its principle of openness towards EU law, the German Bundesverfassungsgericht stated in Honeywell: “When exercising this competence to affect a review, the principle of openness of the Basic Law towards Europe is to be complied with as a correlate of the principle of sincere cooperation (Article 4.3 TEU) and to be made fruitful.” Honeywell, supra note 105, at para. 100.Google Scholar

116 General Report, Conference of European Constitutional Courts, supra note 114, at 2–4.Google Scholar

117 See Trybunałt Konstytucyjny 16.11.2011 [Polish Constitutional Tribunal decision of Nov. 16, 2011] SK 45/09 para. 2.6 [hereinafter Brussels Regulation]; Lisbon Treaty II, supra note 14, at para. 112; General Report, Conference of European Constitutional Courts, supra note 114, at 2; National Report, The Constitutional Court of the Czech Republic, supra note 114, at 4; National Report, The Supreme Court of Denmark (2014), at 12; National Report, The Federal Constitutional Court of the Republic of Germany, supra note 114, at 3; National Report, The Constitutional Court of Hungary, supra note 114, at 2–3; National Report, The Constitutional Tribunal of the Republic of Poland (2014), at 2; National Report, The Constitutional Court of Romania (2014), at 12; M. Wathelet, Advocate General, Constitutional Courts and the CJEU: Is There a Dialogue? History and Prospects, Address at the EU Law Discussion Group at the Law Faculty, University of Oxford (Oct. 23, 2015).Google Scholar

118 See generally Wathelet, supra note 117.Google Scholar

119 Rosalyn Higgins, Problems and Process: International Law and How We Use It 10 (1995).Google Scholar

120 See Report, National, The Constitutional Court of Belgium (2014), at 31; Lisbon Treaty I, supra note 5, at para. 5; Carlsen, supra note 105, at para. 9.6; Granital, supra note 114, at para. 7–7; Brussels Regulation, supra note 117, at para. 2.7; Constitutional Treaty, supra note 60, at para. II–4; Melloni, supra note 63, at para. II-3; National Report, The Federal Constitutional Court of the Republic of Germany, supra note 114, at 3; Pham, supra note 105, at para. 91.Google Scholar

121 See Regulation, Brussels, supra note 117, at paras. 2.5, 2.8; National Report, The Constitutional Court of Romania, supra note 117, at 12; Pham, supra note 105, at para. 91.Google Scholar

122 See Regulation, Brussels, supra note 117, at para. 2.6; General Report, Conference of European Constitutional Courts, supra note 114, at 12; National Report, The Portuguese Constitutional Court, supra note 114, at 23; National Report, The Constitutional Court of Romania, supra note 117, at 12–13; National Report, The Constitutional Court of the Slovak Republic (2014), at 12; National Report, The Constitutional Court of the Republic of Slovenia (2014), at 18; UK Supreme Court, R (on the application of HS2 Action Alliance Limited) [2014] U.K.S.C. 3 at para. 202 [hereinafter UK Supreme Court, HS2]; Pham, supra note 105, at para. 91.Google Scholar

123 Granital, supra note 114, at para. 7–4.Google Scholar

124 See Report, National, The Constitutional Court of the Czech Republic, supra note 114, at 11; Brussels Regulation, supra note 117, at para. 2.5; National Report, The Constitutional Court of Romania, supra note 117, at 58; Pham, supra note 105, at para. 91.Google Scholar

125 National Report, The Constitutional Tribunal of the Republic of Poland, supra note 117, at 2.Google Scholar

126 Interviewee 1; Interviewee 2; Interviewee 3; Interviewee 4; Interviewee 5; Interviewee 6.Google Scholar

127 Interviewee 1; Interviewee 2, Interviewee 4; see Report, National, The Supreme Court of Denmark, supra note 117, at 12; National Report, The Portuguese Constitutional Court, supra note 114, at 23; Brussels Regulation, supra note 117, at para. 2.6.Google Scholar

128 See Report, National, The Constitutional Court of Austria (2014), at 11; National Report, The Constitutional Court of Croatia (2014), at 24; National Report, The Supreme Court of Cyprus, supra note 114, at 5; National Report, The Constitutional Court of the Czech Republic, supra note 114, at 20; National Report, The Federal Constitutional Court of the Republic of Germany, supra note 114, at 17; National Report, The Constitutional Court of Hungary, supra note 114, at 2; National Report, The Supreme Court of Ireland, supra note 101, at 5; National Report, The Constitutional Court of the Republic of Latvia, supra note 114, at 8; National Report, The Constitutional Court of the Republic of Lithuania, supra note 105, at 30; National Report, The Constitutional Court of the Republic of Malta (2014), at 4; National Report, The Constitutional Tribunal of the Republic of Poland, supra note 117, at 15; National Report, The Portuguese Constitutional Court, supra note 114, at 38; National Report, The Constitutional Court of Romania, supra note 117, at 61–62; National Report, The Constitutional Court of the Slovak Republic, supra note 122, at 9; National Report, The Constitutional Court of the Republic of Slovenia, supra note 122, at 26; National Report, The Constitutional Tribunal of Spain (2014), at 26; Pham, supra note 105, at 91.Google Scholar

129 General Report, Conference of European Constitutional Courts, supra note 114, at 8.Google Scholar

130 Claes & Reestman, supra note 32, 941.Google Scholar

131 General Report, Conference of European Constitutional Courts, supra note 114, at 9.Google Scholar

132 The very framework of the Conference of European Constitutional Courts demonstrates how cooperation among judges and courts contributes to what Jacobs famously called the cross-fertilization of legal systems. See generally Jacobs, supra note 31.Google Scholar

133 Fabbrini, supra note 10, at 1014–1016.Google Scholar

134 To reiterate the point made by the Polish Trybunałt Konstytucyjny: “[C]onfirming one's national identity in solidarity with other nations, and not against them.” Polish Treaty of Lisbon, supra note 72, at para. 2.1.Google Scholar

135 Co-operative programs, conferences and networking events of these judicial networks play a role in the coordination of judicial activity and the unification of practices at the national level. One of their main advantages is precisely the level-playing field, where no judicial instance is in a hierarchical position to another. See Claes & de Visser, supra note 47, at 101.Google Scholar

136 Kelemen, supra note 8, at 146.Google Scholar

137 See Lord Neuberger and Lord Mance in UK Supreme Court, HS2, supra note 122, at para. 201.Google Scholar

138 Ústavní Soud České republiky 31.12.2012 [Decision of the Constitutional Court of Dec. 31, 2012], Pl. ÚS 5/12 (Czech) [hereinafter Czech CC Slovak Pensions]. Google Scholar

139 For a more detailed analysis of the intricacies of the case, see Bobek, Michal, Landtová, Holubec, and the Problem of an Uncooperative Court: Implications for the Preliminary Ruling Procedure, 10 Eur. Const. L. Rev. 54 (2014).Google Scholar

140 Id. at 66.Google Scholar

141 Id. Google Scholar

142 See generally Wathelet, supra note 117.Google Scholar

143 Federico Fabbrini, The European Court of Justice, the European Central Bank and the Supremacy of European Law: Introduction, 23 Maastricht J. of Eur. & Comp. L. 1, 2 (2016).Google Scholar

144 Interviewee 4 stated that the case should not be taken into account as a representation of anything, as is it vitiated by numerous mistakes on behalf of both the Czech Constitutional Court and the Court of Justice.Google Scholar

145 The exact wording used by the Czech Constitutional Court was: “The Constitution[al] Court inferred that the Court of Justice of the European Union had overlooked these facts, as it otherwise would have had to conclude that EU law was not applicable in the situation [at] hand.” National Report, The Constitutional Court of the Czech Republic, supra note 114, at 18.Google Scholar

146 See Kelemen, supra note 8, at 146.Google Scholar

147 See generally supra note 13 for the discussion and the relevant literature.Google Scholar

148 See Walker 2003, supra note 3, at 40. See generally Rodin's argument, supra note 14.Google Scholar

149 See Weiler, supra note 16, at 419 (discussing “persuasion pull” and “compliance pull” as the drivers behind the implementation of the case law of the Court of Justice).Google Scholar

150 See Laurence Helfer & Anne-Marie Slaughter, Toward a Theory of Effective Supranational Adjudication, 107 Yale L.J. 273, 314 (1997); Krisch, supra note 3, at 247.Google Scholar

151 See Higgins, supra note 119, at 10. See also Claes, supra note 82, at 713.Google Scholar

152 See Shaw, supra note 4, at 14, 19, 24; see also Zenon Bañkowski & Emilios Christodoulidis, The European Union as an Essentially Contested Project, 4 Eur. L.J. 341, 342 (1998).Google Scholar

153 Bundesverfassungsgericht [BVerfGE] [Federal Constitutional Court], May 29, 1974, 37 Entscheidungen Des Bundesverfassungsgerichts (BGHZ) 271 (hereinafter Solange I).Google Scholar

154 In its response, the Court of Justice used the common constitutional traditions of Member States as the source of inspiration and the level of protection of fundamental rights that will be accorded on the Union level. See ECJ, Case C-4/73, J. Nold, Kohlen- und Baustoffgroßhandlung v. Commission of the European Communities, at para. 13, Judgment of May 14, 1974. Finally, the German Constitutional Court accepted such a level of protection in the Solange II judgment. See Bundesverfassungsgericht [BVerfGE] [Federal Constitutional Court], Oct. 22, 1986, 73 Entscheidungen Des Bundesverfassungsgerichts [BVerfGE] 339 [hereinafter Solange II].Google Scholar

155 Krisch, supra note 3, at 247 onwards.Google Scholar

156 The area of fundamental rights is an excellent example of how the EU has evolved as a constitutional legal order not comparable to nation states. See Gráinne de Búrca, After the EU Charter of Fundamental Rights: The Court of Justice as a Human Rights Adjudicator?, 20 Maastricht J. Eur. & Comp. L. 168, 169 (2013).Google Scholar

157 See Sweet, Alec Stone, The Structure of Constitutional Pluralism: Review of Nico Krisch, Beyond Constitutionalism: The Pluralist Structure of Post-National Law, 11 Int. J. Const. L. 491, 500 (2013).Google Scholar

158 Kelemen, supra note 8, at 141, 148–149.Google Scholar

159 Similarly, Rodin differentiates among the immediate and the future impact of the case law of the Court, arguing that the latter is based on the changed societal context, gradually transforming a judgment into a landmark. See S Rodin, Dumb and No More Here, Address at the Conference on Central and Eastern European Judges Under The EU Influence: The Transformative Power of Europe Revisited on the 10th Anniversary of the Enlargement, 12–13 May 2014, EUI, Florence, Italy [cited with the author's permission], at 10, 14.Google Scholar

160 Stone Sweet argues that the possibility of a conflict is a “manifestation, probably permanent, of a pluralist structure of EU law.” Stone Sweet, supra note 20, at 65.Google Scholar

161 This is not to diminish the importance of the principle of primacy in the case law of the Court of Justice, but rather to emphasize the importance of the “political” in relation to the “legal.” Moreover, it also serves to reiterate the importance of the national constitutional setting and its ability to constrain national constitutional jurisdictions.Google Scholar

162 Barbara Guastaferro, Beyond the Exceptionalism of Constitutional Conflicts: The Ordinary Functions of the Identity Clause, Jean Monnet Working Paper 01/12 at 4 (2012).Google Scholar

163 Bundesverfassungsgericht [BVerfGE] [Federal Constitutional Court], Dec. 15, 2015, Order No. 2 BvR 2735/14 [hereinafter EAW Order].Google Scholar

164 The same was underlined by the Austrian Constitutional Court, where it stated that should a conflict arise, this should not be developed beyond an individual case. National Report, The Constitutional Court of Austria, supra note 128, at 9.Google Scholar

165 Soon to be 27.Google Scholar

166 See generally Case C-36/02 Omega, supra note 68; Case C-208/09, Sayn-Wittgenstein, supra note 69; Case C-391/09 Runevič-Vardyn, supra note 70.Google Scholar

167 See generally Conseil constitutionnel [CC] [Constitutional Court] decision No. 2007–560 DC, Dec. 20, 2007 (France) [hereinafter Treaty of Lisbon]; Honeywell, supra note 105; Gauweiler, supra note 34.Google Scholar

168 Two further examples that highlight the auto-correct function are: (1) the decision of the Bundesverfassungsgericht in relation to the European Arrest Warrant (EAW). In this decision, the German Court was in a position to enter into a discussion on the compatibility of the EAW with the Basic Law. Instead, the Court only focused on interpreting the national law that implemented the EAW, and avoided entirely having to entertain the idea of declaring an EU act contrary to the national constitution. Bundesverfassungsgericht [BVerfGE] [Federal Constitutional Court], July 18, 2005, Decision No. 2 BvR 2236/04, [hereinafter EAW Constitutionality]. See also Alicia Hinarejos, Case Comment: Bundesverfassungsgericht (German Constitutional Court), Decision of 18 July 2005 (2 BvR 2236/04) on the German European Arrest Warrant Law, 43 Common Mkt. L. Rev. 583 (2006); and (2) the decision of the Polish Trybunałt Konstytucyjny on the constitutional complaint concerning Article 45 of the Council Regulation 44/2001/EC of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. See 2012 O.J. (L 12) 1 (Jan. 16, 2001). The Polish Trybunałt Konstytucyjny provided a broad interpretation of the term “normative act” and assumed jurisdiction to review secondary acts of EU law against the Constitution. In addition, the Tribunal stated that its jurisdiction to do so is only subsidiary to that of the Court of Justice in relation to EU primary law (§2.6). Nevertheless, it found the provision to be in accordance with the Polish Constitution. I argue that, regardless of expanding its jurisdiction to review secondary EU acts, the Polish Constitutional Tribunal was aware and intentionally exhibited self-restraint in order to avoid conflict. See generally Brussels Regulation, supra note 117.Google Scholar

169 See the Opinion of Advocate General Maduro in Joined cases C-402/05 P and C-415/05 P Kadi 2008, §44. See also Claes, supra note 82, at 37.Google Scholar

170 As Franz Mayer famously named the Bundesverfassungsgericht. Franz Mayer, Rashomon in Karlsruhe: A Reflection on Democracy and Identity in the European Union, 9 Int. J. Const. L. 757 (2011).Google Scholar

171 Claes and Reestman were correct to point out that the Court of Justice was particularly wise not to engage in the debate on the difference between national and constitutional identity, but rather focused on solid arguments to assess the legal basis for, and in the event preserve, the OMT. Claes and Reestman, supra note 32, at 970. In July 2017, the Bundesverfassungsgericht submitted its second request for a preliminary reference to the Court of Justice, engaging in a more profound debate on the limits of the monetary policy mandate of the ECB, and the mechanisms used to redress the Euro crisis. The reference is an excellent illustration of the procedural and substantive aspects of incrementalism, developing and building the constructive conversation between the two courts, and a parallel refinement of the standard of review of ECB's activity in resolving the Euro crisis. Bundesverfassungsgericht [BVerfGE] [Federal Constitutional Court], July 18, 2017, Order No. 2 BvR 859/15, 2 BvR 980/16, 2 BvR 2006/15, 2 BvR 1651/15.Google Scholar

172 This is contrary to Kelemen, who underlines the immaturity of the system that needs to be overcome by a final resolution of the quest for the ultimate judicial authority in the EU. See Kelemen, supra note 8, at 136.Google Scholar