Ana Bobić, Law Clerk at the Court of Justice of the European Union

Photo credit: Antoine Montulé, via Wikicommons

It has been almost 60 years since the Court of Justice established that EU law takes precedence. However, this principle still sparks discussions about the EU’s constitutional system. Initially, the integration of EU law into national legal frameworks caused tension between the Court of Justice and national constitutional courts. The Court of Justice believes strongly in the importance of EU law’s effectiveness and expects all national courts to share this view. However, national courts responsible for constitutional review tend to give priority to their own constitutions. My recent book examines how constitutional courts across the EU actually implement the principle of EU law primacy, focusing on the back-and-forth between these courts and the Court of Justice. The book provides greater insight into when and why clashes occur between the European Court of Justice and national constitutional courts regarding the implementation and enforcement of EU law.

National courts conducting constitutional review encounter a complex challenge shaped by their specific national systems. To illustrate the evolving power dynamics between courts, I use a visual model called the judicial triangle. As the book demonstrates, this triangle becomes unbalanced whenever conflicts arise, sometimes favoring the Court of Justice and its relationship with ordinary national courts, and at other times favoring national constitutional courts and their control over their national judicial systems. When we look at all these unbalanced judicial triangles together, a system of shared authority, known as heterarchy, emerges as the guiding principle for how courts interact. The book thoroughly examines constitutional conflicts across various legal domains and over time (Chapters 5 to 7) to support this concept. This method allows us to visualize the judicial triangles resulting from each case study, which are then collectively examined in the concluding chapters (Chapters 8 and 9). Through this, I was able to present a more detailed and nuanced understanding of the power dynamics between the courts.

To achieve this, I utilize the framework of constitutional pluralism, contending that it is relevant both in describing and setting standards for the relationships within the European judicial system. Descriptively, it depicts a system where various constitutional bodies operate concurrently, each asserting ultimate authority. These bodies frequently clash, and these conflicts are resolved gradually through self-correction, supported by principles of sincere cooperation and mutual respect. The actors within this system exist in a state of heterarchy, with their positions constantly shifting. From a normative perspective, constitutional pluralism rests on a shared foundation codified in Article 2 of the Treaty on European Union (TEU), which outlines the minimum requirements for EU membership. In this context, constitutional conflicts are considered normal and even beneficial. They encourage legal development and create a system of checks and balances between different points of constitutional authority. However, when a conflict escalates to the point where the fundamental values of Article 2 TEU are disregarded, even in their most basic interpretation, without any attempt at sincere cooperation or mutual respect, it becomes destructive. Such conflicts require combined political and legal solutions at both the EU and national levels. I offer a broad empirical illustration of these descriptive and normative aspects of the theory in Chapters 3 and 4.

To further support these theoretical arguments, the book delves into three specific areas of constitutional conflict: ultra vires review, identity review, and fundamental rights review. This section aims to provide a thorough analysis of how the Court of Justice has broadened the self-referential system of the Treaties, the limitations that constitutional courts have placed on the principle of primacy, potential solutions they propose for constitutional conflicts, and whether these solutions reflect a constructive or destructive approach to the shared values of Article 2 TEU. Across all three areas of review, the analysis consistently shows that a system of shared authority encourages cooperation, mutual respect, and a desire to prevent conflicts. National constitutional courts play a crucial role in constructively scrutinizing and balancing the Court of Justice’s rulings, and vice versa.

In ultra vires review (Chapter 5), Member States not only declared their intention to oversee the transfer of powers from national to EU levels, but also identified instances where the Court of Justice overstepped its authority under the Treaty. However, these decisions relied on pre-existing standards of competence control, involved the Court of Justice from the outset through preliminary rulings, and allowed only constitutional courts, not ordinary courts, to conduct ultra vires review.

Regarding identity review (Chapter 6), national constitutional courts consistently emphasize their authority to safeguard the core of their constitutions. For example, the Portuguese and Italian constitutional courts recently incorporated the concept of constitutional identity into their decisions, and the Belgian Constitutional Court established limits to the principle of primacy based on the constitutional core. On the EU level, identity review shows that the Court of Justice defers to national authorities to define their specific constitutional values, intervening only to ensure a common standard of protection through the principle of proportionality. This area of review further highlights that, without sincere cooperation and mutual respect, constitutional courts influenced by the executive branch might excessively broaden the concept of constitutional identity, leading to destructive conflict. When this happens, the self-correcting mechanism designed to manage conflict becomes ineffective. In such cases, judicial interactions only legitimize the decisions of the influenced courts, enabling them to distort the rule of law to serve the executive’s agenda. This destructive conflict necessitates a joint political and legal response at both the EU and national levels.

Lastly, in fundamental rights review (Chapter 7), national constitutional courts have established concrete limitations on the principle of primacy to ensure a sufficient standard of fundamental rights protection. In response, the Court of Justice has acknowledged the importance of safeguarding fundamental rights at the EU level. Through the gradual development of case law, the landscape of fundamental rights protection has significantly improved, thanks to rulings stemming from constitutional conflicts. Examples include the Court of Justice’s decisions in Aranyosi and Căldăraru and C.K., as well as the annulment of the Data Retention Directive.

Reviewing the illustrations of all judicial triangles presented and examined in the book (Chapter 8) reveals a dynamic system where power constantly shifts between the Court of Justice and national constitutional courts. While this complex system often creates challenges for the courts and legal scholars trying to interpret judicial interactions and their broader implications for the EU’s constitutional framework, one thing is clear: disagreements between these courts are common. However, the way these disagreements have unfolded demonstrates a carefully balanced system built over time, allowing them to engage constructively for the most part. Ultimately, constitutional conflict is an inherent aspect of the EU system. Utilizing a variety of procedural and substantive tools discussed in this book, the courts examined can, and often do, manage these conflicts constructively, which ultimately benefits the EU’s constitutional order.