Constitutional Pluralism Is Not Dead
An Analysis of Interactions between Constitutional Courts of Member States and the European Court of Justice
The theory of constitutional pluralism which explains the relationship between the supreme jurisdictions of the EU member states and the ECJ has come under criticism. On the basis of an analysis of judgments, institutional documents, reports and other sources, Ana Bobic, Oxford University, argues in favour of a heterarchical and multilateral approach.
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In the past decade, the theory of constitutional pluralism witnessed immense success in its attempt to explain the relationship and the division of competences between supreme jurisdictions performing constitutional review in the Member States and the European Court of Justice. More recently, the theory of constitutional pluralism has received harsh criticism in the light of the interpretations put forward by the German Federal Constitutional Court, where it retained for itself the ultimate power to interpret the core of the German Basic Law, even at the cost of a serious clash with the Court of Justice. This paper argues that a proper reading of the Treaties, but also the formal and informal expressions of all the judicial actors involved, supports a heterarchical and multilateral approach. The paper analyses judgments, institutional documents and reports, as well as public statements and writings of current and former members of the Court of Justice and national constitutional jurisdictions across the EU. The analysis seeks to demonstrate that the use of common keywords points to the existence of a shared understanding of the division of obligations among the participants of the European judicial space. The actual implementation of the keywords used, the exhibited self-restraint and a self-imposed obligation to avoid conflict points to the conclusion of a strong awareness of the importance of preserving the pluralist setting, present both on the side of national constitutional jurisdictions, and the Court of Justice.
Ana Bobic is currently pursuing a DPhil in law at the Oxford Law Faculty, where she is also a lecturer in Constitutional and Administrative Law at Keble College. Her research addresses the incidences of, and reasons for, constitutional clashes between the European Court of Justice and national (constitutional) courts in the application and enforcement of EU law. It seeks to determine how the principle of primacy of EU law works in reality and whether the national constitutional jurisprudence supports this concept.
Ana is also a legal consultant for Brussels based agency Tipik, in matters relating to the implementation of secondary EU law in Croatia. After graduating summa cum laude from her undergraduate studies in law at the University of Zagreb, Croatia, Ana obtained the MJur at Oxford as the OSI/University of Oxford scholar in 2012.
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