On National Courts, European Law and Constitutions: Dialogue and Conflict

• Author: Norbert Reich
• DOI: http://doi.org/10.1111/1468-0386.00076
• Date: 01 June 1999
• Published date: 01 June 1999

On National Courts, European Law

and Constitutions:

Dialogue and Conflict

Norbert Reich*

A.-M. Slaughter, A. Stone Sweet, J.H.H. Weiler (eds) Legal Change in Its Social

Context (Hart Publishing 1998)

The publication of this ambitious and important, multi-national and multi-dis-

ciplinary research comes at the right time: the aftermath of Maastricht has been

overcome, the Euro- and Amsterdam disillusioning is ahead of us, and Agenda 2000 is

awaiting far-reaching political decisions which probably will not come. The editors

and authors of the project are united in putting central elements of the European

Legal and Constitutional Order such as supremacy, direct effect, and Kompetenz-

Kompetenz to the litmus test of acceptance by national courts. They prefer a realistic

to a legalistic approach, and take a functional rather than an institutional attitude.

The book is, according to the outline of the research projects as explained by the

editors, divided into two, or rather, three parts. The first part consists of a historical

account of how the new theories of the European Court of Justice (ECJ) on the

specificity of the European legal order have been accepted, rejected, problematised,

circumvented, and eventually been reconfirmed by the highest judicial authorities of

the 6 chosen Member States (Belgium, France, Germany, Italy, the Netherlands, and

United Kingdom; note that from the ‘second generation’ members, neither Ireland,

with its specific problems on the abortion issue, nor Denmark, with its sacred national

sovereignty as reaffirmed by the judgment of the Danish High Court of 6.4.1998, have

been included). In the second part, based on the inquiry undertaken in the first part,

different authors from diverging research backgrounds undertake a mostly neo-

functional analysis and explanation of the phenomena of co-operation and conflict

between European and national courts, thereby touching upon issues such as

democratic accountability, sovereignty, national traditions, and fundamental rights.

The last part is made up of a thought-provoking, brilliant essay by Joseph Weiler,

which tries to explain the dialectics of why the success of European constitutional

integration has become its very problem today.

The first part consists of an in-depth analysis of the reception vs rejection of the

central EC law doctrines of supremacy and direct effect by the highest national courts,

whether they be constitutional courts, as in Italy and Germany, or mixed jurisdictions,

as in France and (to a lesser extent) Belgium, or common law courts without powers

of judicial review, as in the UK and (with some specificities) in the Netherlands. It is

interesting to note that the courts which did not have the power of judicial review

seemed the most eager to accept the novel principles of the ECJ, which, to some extent,

154 © Blackwell Publishers Ltd. 1999

* University of Bremen

European Law Journal, Vol. 5, No. 2, June 1999, pp. 154–159

© Blackwell Publishers Ltd. 1999, 108 Cowley Road, Oxford OX4 1JF, UK

and 350 Main Street, Malden, MA 02148, USA