National Constitutional Courts in supranational litigation: A contextual analysis

• Date: 01 July 2017
• DOI: http://doi.org/10.1111/eulj.12220
• Published date: 01 July 2017
• Author: Marco 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 well‐known 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 pan‐European

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 well‐known 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;23:189–212. © 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 above‐mentioned 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 fully‐fledged pan‐European 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 re‐orienting 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

policy‐making 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 back‐up 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

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