European Constitutional Identity “Inside Out”: Inherent Risks of the Pluralist Structure

The jurisprudence of the CJEU and the national constitutional courts referring to the national constitutional identities of the Members States fits into the framework of constitutional pluralism as modus vivendi of the European legal order. This paper focuses in particular on the recent judgments of the Polish and Czech constitutional courts. One might perceive a more general tendency in the process of EU integration to dominate the EU policies increasingly with national agendas. As a result, the EU policies might be held hostage by the interests of the stronger Member States. These tendencies enhance the tensions inherent in the pluralist structure of the relationships between legal orders in the European arena. Constitutional identity is yet another concept used in this debate about the ultimate authority. Pluralism assumes that the courts will compete over the ultimate authority and will try to use such concept “to their advantage”. With regard to art.4 (2) TEU the CJEU seems to have more persuasive power than the TK or the ÚS. However, the jurisprudence is definitely not settled yet.

The interweavement of national, European and international law creates the need to examine the constitutional identity expressed to the inside and to the outside of the EU. Pure heterarchy based on a balance of powers and protection of national constitutions and constitutional courts comes with the inherent risk of leading to a logic of “might is right”. On the other hand, even though one could identify cases where the judicial actors seem to miss an opportunity to improve the protection of individual rights or disclose too much eagerness to ensure its own authority, it is how the system of constitutional pluralism functions. It has the ambition of improving the quality of the judgments and creating a framework for fruitful interaction of competing visions of Europe. Single criticisable judgments do not put in question the viability of the whole framework, but it is important to be aware of the systemic risks.

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