National Constitutional Courts in supranational litigation: A contextual analysis

Date01 July 2017
DOIhttp://doi.org/10.1111/eulj.12220
Published date01 July 2017
AuthorMarco Dani
ORIGINAL MANUSCRIPT
National Constitutional Courts in supranational
litigation: A contextual analysis
Marco Dani*
Abstract
The article examines the role of national constitutional courts in supranational litigation. It firstly illustratestheir
value and situates wellknown judicial doctrines affecting their jurisdiction in the context of the normative claims,
policy agenda and institutional framework promoted by the European Union. Against this background, it gauges
the potential of national constitutional courts in countering the process of intergovernmental and technocratic
encroachment of national constitutional democracies characterising the most recent evolutionary stages of the
European integration process. It is claimed that constitutional courts are in the position of reinforcing, resisting
or correcting Union measures with a detrimental impact on national constitutional principles. After having identi-
fied in correction the approach more coherent with their constitutional mandate, the article highlights a disturbing
paradox: in remaining faithful to their constitutional role, constitutional courts contribute to the sustainability of a
comprehensive institutional setting corroding the idea of constitutional democracy on which they are premised.
1|INTRODUCTION
Owing to their role in protecting fundamental rights and contributing to the legitimacy of representative government,
constitutional courts are among the most respected institutions in European constitutional democracies. Yet, because
of developments associated with the process of European integration, their role is increasingly overshadowed. The
Union relies on a judicial system that, by privileging the relationship between ordinary courts and the European Court
of Justice, marginalises constitutional courts and undermines national constitutional legality. Within a panEuropean
constitutional democracy, this process should not be a reason of particular concern for the Court of Justice and
supranational legality could compensate constitutional losses at national level. Preoccupation for the displacement
of constitutional courts, however, seems justified considering the dubious constitutional credentials of both the Union
and the Court of Justice.
This article discusses the role of national constitutional courts in supranational litigation, i.e. in cases in which
Union norms or policy measures are implicated.
1
It firstly illustrates their value and situates wellknown judicial
doctrines affecting their jurisdiction in the context of the normative claims, policy agenda and institutional framework
*
Associate Professor, Faculty of Law, University of Trento. I am grateful to Jan Komárek, Giandomenico Falcon and Cristina Fasone for
comments on an earlier draft of this article. Many thanks also to the editor and the anonymous reviewers for their suggestions. All
errors are mine.
1
The definition is deliberately broad to include, alongside the routine cases involving the application of Union norms or the review of
their legality, cases concerning the validity or the interpretation of national measures adopted unde r the impulse of Union law or rec-
ommendations (see below, section VI).
Received: 6 November 2016 Accepted: 17 January 2017
DOI: 10.1111/eulj.12220
Eur Law J. 2017;23:189212. © 2017 John Wiley & Sons Ltd.wileyonlinelibrary.com/journal/eulj 189
promoted by Union. Against this background, it gauges the potential of national constitutional courts in countering the
process of intergovernmental and technocratic encroachment of national constitutional democracies marking the
most recent evolutionary stages of the European integration process.
The argument begins by considering the value of national constitutional courts as participants of national
constitutional democracies (section II). Constitutional courts, it is argued, are key to sustaining legal and political
orders pursuing the reconciliation of private and public autonomy. Within this context, they develop a particular type
of legality and style of adjudication allowing the correction of legislative decisions in the light of higher formal and
substantive principles. To fulfil this task constitutional courts benefit from their specific institutional qualities and a
privileged relationship with ordinary courts.
The value of constitutional courts, however, is relative for they partake also in shortcomingsof national constitu-
tional democracies such as parochialism and regulatory capture (section III). The supranational institutions introduced
in Europe after World War II cope with these deficiencies and establish a complementary relationship with national
constitutional democracies: while the latter provide the institutional framework to govern salient issues regarding
redistribution and protection of fundamental rights, supranational institutions promote allocative efficiency and
individual emancipation across borders. Complementarity emerges also as the main criterion inspiring judicial
organisation: following their specific institutional expertise, national constitutional courts and the European Court
of Justice assert their leadership over distinct jurisdictional areas reflecting the abovementioned division of labour.
To secure the effectiveness of supranational law, however, the Court of Justice develops relationships with ordinary
courts which challenge the affiliation of the latter with constitutional courts. The article illustrates the doctrines
leading to this outcome and maps out the jurisdictional areas remaining subject to national constitutional review. It
argues that, as long as the scope of supranational law remains limited, those doctrines do not have the effect of
marginalising constitutional courts. This explains why, on the whole, the latter have accepted their redefined condition
also as a matter of domestic constitutional law.
The position of national constitutional courts turns more controversial as the Union expands its remit (section IV).
The article recognises that this development is paralleledby a constitutional recalibration of the EU institutional frame-
work, but it rejects the view suggesting a transformation of the Union into a fullyfledged panEuropean constitutional
democracy. The expansion of Union competences towards increasingly salient policy areas, it is contended, is better
explained as a response to the crisis of national social government. New EU competences are instrumental to the
promotion of the advanced liberalism agenda, a coherent policy strategy aimed at strengthening the competitiveness
of national economies by reorienting national welfare states. The implementation of this policy agenda, it is argued,
corrodes national constitutional democracies without offering any equivalent supranational substitute.In this context,
doctrines such as Simmenthal become problematic because constitutional courts are displaced and, with them, also the
possibility to oppose intergovernmental and technocratic encroachment may appear foreclosed.
However, the Union institutional framework is not blind to the potentially disintegrative effects of supranational
policymaking and adjudication (section V). The article claims that the Simmenthal doctrine is no real impediment to
represent and defend national constitutional claims in supranational litigation. The preliminary reference procedure
allows constitutional courts to influence supranational litigation from the margins: while ordinary courts are in the
position of conveying domestic constitutional claims to the Court of Justice, constitutional courts can still take part
in litigation as a backup option were supranational judgments to be perceived as unsustainable according to national
constitutional standards. If properly employed, this opportunity creates sufficient incentives for the Court of Justice
to handle carefully national constitutional materials and internalise them within the existing EU policy strategies.
Finally, the role of constitutional courts is discussed from a normative standpoint by examining the range of
approaches inspiring their activity in supranational litigation (section VI). By focusing on judgments decided in the
backdrop of the economic and financial crisis, the article shows that constitutional courts are in the position of
reinforcing, resisting or correcting measures of structural change adopted under EU impulse. After having identified
in correction the approach more coherent with their constitutional mandate, the article concludes by highlighting a
disturbing paradox: in remaining faithful to their constitutional role, constitutional courts contribute to the
190 DANI

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