Jean Monnet Center at NYU School of Law


Who is the Final Arbiter of Constitutionality in Europe?

Three Conceptions of the Relationship between the German Federal Constitutional Court and the European Court of Justice and the Fate of the European Market Order for Bananas

Mattias Kumm [1]

Abstract: The case about to be decided by the German Federal Constitutional Court (hereinafter: FCC) concerning the constitutionality of Regulation 404/93 establishing a European market order for bananas raises fundamental questions concerning the relationship between the European Court of Justice (hereinafter: ECJ) and Member States highest courts. This article examines the dominating conceptions and doctrines used to deal with these questions and then goes on to suggest an alternative. After analyzing the `European Monist' conception underlying the jurisprudence of the ECJ and the `National Statist' conception underlying the current jurisprudence of the FCC an alternative `Liberal Legal Pluralist' approach is introduced. This approach provides a principled framework that helps to refocus the debate: The interesting question is not whether the Member States' highest judicial organs may subject secondary Community Law to judicial review, but what kind of review is constitutionally warranted. [2]

[1] S.J.D. candidate, Harvard Law School; Teaching Fellow, Kennedy School of Government.

[2] I thank the conveners and participants of both the advanced seminar "WTO, NAFTA and the EU: Advanced Issues in Law and Politics" at Harvard Law School (Spring '98) and the conference on "Reconceiving European Constitutionalism" in Kopenhagen (March '98) for making possible and contributing to the stimulating discussions and helpful comments on earlier drafts. Special thanks go to Prof. J. H. H. Weiler, whose encouragement , support and criticism made this project the rich experience that it was.




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