Constitutional pluralism and the role of courts in the European judicial network: competition, dialogue, or backlash?

Abstract

Constitutional pluralism describes a configuration of two or more sources of judicially enforceable, (quasi-)constitutional rights existing alongside each other in a (national) legal system. Without doubt, constitutional pluralism can have substantial advantages, for example by strengthening protection of fundamental rights. In the European Union (EU), the proliferation of fora for judicial review and the incorporation of European and international fundamental rights catalogues into domestic law has created new opportunities for rights claiming. At the same time, constitutional pluralism clearly has challenges and potential drawbacks. This constitutional arrangement has undercut the predominant role of national constitutions in regulating the exercise of public authority and imposed additional checks and balances on both law-makers and constitutional judges. Indeed, the concept is intricately linked to the perennial question of Kompetenz-Kompetenz: Which (judicial) body has the final word in matters that touch upon both constitutional and EU law – national constitutional courts or the Court of Justice (CJEU)? While the question has been looming ever since the first landmark rulings of the CJEU establishing the doctrines of direct effect and supremacy of EU law, new tensions have emerged in the last decade, e.g. in the domain of social and labour rights, criminal prosecution, and fiscal and monetary policy. On the one hand, the conceptual assumptions and normative underpinnings of constitutional pluralism – continuous dialogue, sincere and loyal cooperation, mutual accommodation – have become subject to critique, culminating in the assertion that constitutional pluralism and constitutional identity provide a convenient guise for the demise of judicial independence and the rule of law by authoritarian regimes. Defenders of constitutional pluralism, on the other hand, insist on retaining a distinction between politicized stand-off by captured constitutional courts, and ultra-vires control exercised by independent constitutional courts. Against this backdrop, the panel invites contributions unpacking the various ambivalent effects of constitutional pluralism with regard to fundamental rights protection, the interactions between domestic courts, the EU Court of Justice (CJEU) and the European Court of Human Rights (ECtHR), as well as the activation and instrumentalization of constitutional and apex courts by private and political actors. We welcome contributions with an interdisciplinary outlook, employing either theoretical or empirical approaches, and using different methodologies (qualitative, quantitative, case-study based methodology, and formal models).

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