Constitutionalising an Overlapping Consensus: The ECJ and the Emergence of a Coordinate Constitutional Order

• Author: Charles F. Sabel,Oliver Gerstenberg
• Date: 01 September 2010
• DOI: http://doi.org/10.1111/j.1468-0386.2009.00521.x
• Published date: 01 September 2010

eulj_521511..550

Constitutionalising an Overlapping

Consensus: The ECJ and the Emergence of

a Coordinate Constitutional Order

Charles F. Sabel and Oliver Gerstenberg*

Abstract: The European Court of Justice’s (ECJ’s) jurisprudence of fundamental rights

in cases such as Schmidberger and Omega extends the court’s jurisdiction in ways that

compete with that of Member States in matters of visceral concern. And just as the

Member States require a guarantee that the ECJ respect fundamental rights rooted in

national tradition, so the ECJ insists that international organisations respect rights con-

stitutive of the EU. The demand of such guarantees reproduces between the ECJ and the

international order the kinds of conf‌licting jurisdictional claims that have shadowed the

relation between the ECJ and the courts of the Member States. This article argues that

the clash of jurisdiction is being resolved by the formation of a novel order of coordinate

constitutionalism in which Member States, the ECJ, the European Court of Human

Rights and other international tribunals or organisations agree to defer to one another’s

decisions, provided those decisions respect mutually agreed essentials. This coordinate

order extends constitutionalism beyond its home territory in the nation state through a

jurisprudence of mutual monitoring and peer review that carefully builds on national

constitutional traditions, but does not create a new, encompassing sovereign entity. The

doctrinal instruments by which the plural constitutional orders are, in this way, profoundly

linked without being integrated are variants of the familiar Solange principles of the

German Constitutional Court, by which each legal order accepts the decisions of the

others, even if another decision would have been more consistent with the national con-

stitution tradition, ‘so long as’ those decisions do not systematically violate its own

understanding of constitutional essentials. The article presents the coordinate constitu-

tional order being created by this broad application of the Solange doctrine as an instance,

and practical development, of what Rawls called an overlapping consensus: agreement on

fundamental commitments of principle—those essentials which each order requires the

others to respect—does not rest on mutual agreement on any single, comprehensive moral

doctrine embracing ideas of human dignity, individuality or the like. It is precisely because

the actors of each order acknowledge these persistent differences, and their continuing

* Charles F. Sabel is the Maurice T. Moore Professor of Law at Columbia Law School; Oliver Gerstenberg,

Dr iur, is Director of the Centre for International Governance, School of Law, Leeds University. For

their generous comments we would like to thank Grainne de Burca, Daniela Caruso, Joshua Cohen,

Daniel Halberstam, Mattias Kumm, Joanne Scott and John Snape. An earlier version of the article was

presented at a Research Seminar at the Warwick School of Law.

European Law Journal, Vol. 16, No. 5, September 2010, pp. 511–550.

© 2010 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

inf‌luence on the interpretation of shared commitments in particular conf‌licts, that they

reserve the right to interpret essential principles, within broad and shared limits, and

accord this right to others. The embrace of variants of the Solange principles by many

coordinate courts, in obligating each to monitor the others’ respect for essentials, creates

an institutional mechanism for articulating and adjusting the practical meaning of the

overlapping consensus.

I Background

The European Court of Justice (ECJ) is responding to insistent, long-standing demands

by the constitutional courts of Member States that it take account of deep national

commitments to fundamental rights in its articulation of the economic freedoms that

found the single market upon which the EU has grown. Prototypical cases include

Schmidberger,1creating a framework for reconciling freedom of expression and

freedom of goods, and Omega,2creating a framework for reconciling concerns of

dignity and the freedom to provide services. But the ECJ’s jurisprudence of fundamen-

tal rights creates a new problem by extending the court’s jurisdiction in ways that

overlap and potentially compete with that of Member States in matters of visceral

concern. The problem of competing jurisdictions is compounded by the place of the EU

in the international order. Just as the Member States require a guarantee that the ECJ

respect fundamental rights rooted in national tradition, so the ECJ insists that the

international organisations, such as the Security Council of the United Nations, respect

rights constitutive of the EU, on whose behalf it speaks.3The demand of such guar-

antees reproduces between the ECJ and the international order the kinds of conf‌licting

jurisdictional claims—disputes over the authority to assert competence or Komptenz

Komptenz—that have shadowed the relation between the ECJ and the courts of the

Member States. At the regional international level, there are analogous jurisdictional

conf‌licts between the European Court of Human Rights (ECtHR) and the EU, and

between the ECtHR and the national constitutional orders concerning the meaning and

scope of fundamental and human rights.

In this article, we argue that the potential clash of jurisdiction is being resolved, at

least within the EU, by the formation of a novel order of coordinate constitutionalism

in which Member States, the ECJ, the ECtHR and other international tribunals or

organisations agree to defer to one another’s decisions, provided those decisions

respect mutually agreed essentials. This coordinate order extends constitutionalism—

understood as the legal entrenching fundamental values rather than the founding act of

political sovereignty—beyond its home territory in the nation state through a jurispru-

dence of mutual monitoring and peer review that carefully builds on national consti-

tutional traditions, but does not create a new, encompassing sovereign entity. The

doctrinal instrument by which the plural constitutional orders are in this way pro-

foundly linked without being integrated are the familiar Solange principles articulated

by the German Constitutional Court (Bundesverfassungsgericht or BVG).4By the

1Eugen Schmidberger, Internationale Transporte und Planzüge v Austria [2003] ECR I-5659.

2Omega Spielhallen—und Automatenaufstellungs—GmbH v Oberbürgermeisterin der Bundesstadt Bonn

[2004] ECR I-9609.

3Cases C-402/05P and C-415/05P, Kadi and Al Barakaat, judgment (Grand Chamber) of 3 September 2008.

4BVerfGE 37, 271 (Solange I); English translation at [1974] 2 CMLR 540; 73, 339 (Solange II); English

translation at [1987] 3 CMLR 225.

European Law Journal Volume 16

512 © 2010 Blackwell Publishing Ltd.

Solange principles, each legal order accepts the decisions of the others, even if another

decision would have been more consistent with the national constitution tradition, ‘so

long as’ those decisions do not systematically violate its own understanding of consti-

tutional essentials. Solange thus commits each order to monitor the jurisprudential

output of the others, and to make acceptance of their deviations from national pref-

erences contingent on a continuing f‌inding of equivalence of fundamental results.

The coordinate constitutional order being created by this broad application of the

Solange doctrine can be understood as an instance of what Rawls called an overlapping

consensus: agreement on fundamental commitments of principle—those essentials

which each order requires the others to respect as the condition of its own deference to

their decisions—does not rest on mutual agreement on any single, comprehensive moral

doctrine embracing ideas of human dignity, individuality or the like. On the contrary,

the parties to an overlapping consensus know that they have reached agreement on

essentials, such as the attractiveness of democracy as a system of government or of

respect for the individual as a condition of freedom and fairness, through differing, only

partially concordant interpretations of such comprehensive ideas. It is precisely because

the actors of each order acknowledge these differences, and their continuing inf‌luence

on the interpretation of shared principles in particular conf‌licts, that they reserve the

right to interpret essential principles, within broad and shared limits, as they see f‌it, and

accord this right to others. At the same time, the emergent coordinate order suggests a

development of the idea of the overlapping consensus by showing how the Solange

principles, in obligating each order to monitor the others’ respect for essentials, creates

an institutional mechanism for articulating and adjusting the practical meaning of these

shared ideals. In asserting all this, we are of course taking for granted that there is more

to the idea of constitutionalism beyond the state than allowed by those sceptics who

maintain that constitutionalism presupposes and therefore is coterminous with West-

phalian sovereignty, although we do not respond to such scepticism here.5

The body of the argument is in three parts. In the f‌irst of these, part II, we reprise

the development of the Solange doctrine and document the diffusion of it, and its

reverse variants, to the ECJ, and the ECtHR as well as courts of the Member States.

In part III we show that in recent borderline decisions by the ECJ in Viking,Laval

and Mangold (involving old-age discrimination), the jurisprudence of what we will call

conditional competence or mutual monitoring has created a body of de-nationalised

precedents determinate enough to distinguish judgments consistent with the Solange

principles from those which are not; and we, show, furthermore, that the the percep-

tion of the need for such a distinction is widely shared among the most highly

informed participant observers of ECJ decisions—the advocate generals. In part IV

we connect the jurisprudence of mutual monitoring to the Rawlsian overlapping con-

sensus, and to the closely related idea of a deliberative polyarchy. We show that the

the emergent constitutional order is polyarchic, because, lacking a f‌inal decider, it

must resolve disputes by exchanges among coordinate bodies, each with a contingent

5For a response to the sceptics, cf B.-O. Bryde, ‘International Democratic Constitutionalism’, in R. St. J.

MacDonald and D.M. Johnston (eds), Towards World Constitutionalism (Martinus Nijihoff, 2005), at

103–125 and L.R. Helfer and A.-M. Slaughter, ‘Why States Create International Tribunals: A Response

to Professors Posner and Yoo’, (2005) 93 California Law Review 899; see also M. Kumm, ‘The Cosmo-

politan Turn in Constitutionalism: On the Relationship between Constitutionalism in and beyond the

State’, in F.L. Dunoff and J.P. Trachtman (eds), Ruling thre World? Constitutionalism, International Law,

and Global Governance (Cambridge University Press, 2009), at 258–324.

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