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Making sense of the “incomprehensible”: The PSPP Judgment of the German Federal Constitutional Court
(2020)
Supranational governance is being challenged by politicians and citizens around the EU as over-centralized and undemocratic. This book is premised on the idea that polycentric governance, developed by Vincent and Elinor Ostrom, is a fruitful place to start for addressing this challenge. Assessing the presence of, and potential for, polycentric governance within the EU means approaching established principles and practices from a new perspective. While the debate on these issues is rich, longstanding and interdisciplinary, it has proven difficult to sidestep the 'renationalisation/federalisation' dichotomy. The aim of this volume is not to reject the EU's institutional structure but provide a different benchmark for the assessment of its functioning. Polycentric theory highlights the importance of multilevel horizontal relationships within the EU - between states, but also between many sub-state actors, all the way down to individuals. This helps us answer the question: how do we achieve self-governance in an interdependent world?
A comparative and comprehensive account of the jurisprudence of constitutional conflict between the Court of Justice and national courts with the power of constitutional review. This monograph addresses the incidences of, and reasons for, constitutional clashes in the application and enforcement of EU law. It aims to determine how the principle of primacy of EU law works in reality and whether the jurisprudence of the courts under analysis supports this concept. To this end, the book explores the three areas of constitutional conflict: ultra vires review, identity review, and fundamental rights review. The book substantiates the descriptive and strengthens the normative contributions of the theory of constitutional pluralism in relation to the web of relations in the European judicial space.
By examining the influence that the jurisprudence of constitutional conflict has on the balance of powers between the Court of Justice and constitutional courts, the volume develops the judicial triangle as an analytical tool that depicts the consequences for the horizontal (constitutional courts vis-à-vis the Court of Justice) and vertical judicial relationships (Court of Justice vis-à-vis ordinary national courts; constitutional courts vis-à-vis ordinary national courts).
By offering a thorough compilation of the jurisprudence of constitutional conflict in the EU, The Jurisprudence of Constitutional Conflict in the European Union improves our understanding of the principle of primacy of EU law and its limits, as well as reinforces the theory of constitutional pluralism in explaining and guiding judicial power relations and interactions in the EU.
The relationship between the Court of Justice and the Bundesverfassungsgericht is perhaps one of the most explored relationships in all of EU’s legal history. In attempting to understand and operationalize the uncertainty surrounding the positioning between EU and national constitutional orders, they have in some respects followed the footsteps of a typical life-long love story: in the early years of European integration, both courts appeared to be in denial of any romance, and entered into a conflict over the question of the final arbiter; they subsequently turned to flirting by moving away from an institutionally based conflict towards finding a common substantive ground; which resulted in finally abandoning the competition for domination, but rather embracing mutual respect and a heterarchical relationship. This brief piece follows these developments in fundamental rights review that for now end with the second German decision concerning the right to be forgotten.
The theory of constitutional pluralism as advanced by MacCormick and Walker witnessed immense success in its attempt to explain the relationship between courts of Member States performing constitutional review and the Court of Justice. Despite its success, the theory has often been criticized for its lack of normative prescriptions and legal certainty in resolving the question of the final arbiter in the EU. It is the aim of this Article to address and move beyond these criticisms by introducing and exploring the auto-correct function necessary for the proper and balanced functioning of the pluralist system.
The auto-correct has the function of preventing an outbreak of conflict between the constitutional jurisdictions involved—in the EU judicial architecture, an awareness on the part of all the actors involved of the benefits of a pluralist setting results in conflict management and control. The auto-correct function operates as follows: in the EU as we know it, issues prone to constitutional conflict arise regularly, and both the Court of Justice and national constitutional jurisdictions are able, through their respective procedural avenues, to control the extent of the conflict. There are also two legal imperatives driving this dynamic in two opposite directions—the principle of primacy of Union law on the one hand, and the obligation to respect the national identity of Member States on the other.
As analyzing judicial behaviour shows, the application of self-restraint and mutual accommodation avoids a clash between parallel sovereignty claims on EU and national levels. In particular, national and EU law interaction demonstrates the existence of in-built conditions for the auto-correct function's application, such as the principle of EU-friendly interpretation in national constitutional law, or the national identity clause in primary EU law. The auto-correct function manifests itself and brings about a balance between the different constitutional orders only through the interaction of parallel claims to sovereignty.