Author: Jan Komárek

Title: European Constitutionalism and the European Arrest Warrant: Contrapunctual Principles in Disharmony

Abstract: This paper examines two recent decisions of the Polish Constitutional Tribunal and the German Federal Constitutional Court, which both annulled national implementation of the EAW Framework Decision. After a brief discussion of these courts’ reasoning and pointing out some of their questionable elements, the decisions are put into the context of contrapunctual law principles designed by M. P. Maduro to guide national courts when applying EU law. This serves a twofold aim: firstly to show that although both decisions’ outcome was the same, each court took a fundamentally different approach in reaching its conclusion. Secondly the discussion aims at showing that contrapunctual law principles have their limits that correspond to the limits of legal interpretation and reasoning. M. Kumm’s principle of best fit and his analysis of constitutional conflict help to find reasons supporting this contention. It is highlighted by the particular context of each decision: the fact that constitutional courts may be increasingly protecting the sovereignty of their constitutions (which is even more true in case of post-communistic Member States) and the special character of the Area of Freedom Security and Justice. It is proposed however that since this limitation of contrapunctual law principles can lead to involvement of broad set of actors – politicians, constitutional doctrine and also the general public, it could be beneficial for creating a genuine EU constitution - may be not written, but not having to mask itself behind the word “treaty”.

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