|
|
Who is, under this approach, the final arbiter of constitutionality in Europe? This paper does not answer that question. Instead it provides good reasons to stop asking it and addresses the underlying concerns by redirecting the question.
The reason why it refuses to answer the question is that within a pluralist framework, it does not make sense to speak of a final arbiter of constitutionality in Europe. In the approach outlined here the ECJ is conceived as the final arbiter of constitutionality on the level of the European Legal Order and the Member States Constitutional Courts are conceived as the final arbiters of constitutionality on the national level. The claim that within a pluralist conception the question of `quis judicabit' no longer makes any sense may seem formalist at first. The assertion that there may be more than just one Grundnorm operating in the European legal order may be of interest to legal theorists. A realist, however, would point out that this way of conceiving of the relationship between the Member States Courts and the ECJ covers up more than it reveals: Member States Courts, when exercising their function as final arbiters of their national constitutional orders will do so in a manner that, in one way or another, involves substantive review of some aspects of the European Legal Order. Since it can be expected that national authorities will, in case of conflict, feel bound by the decision of their respective national court rather than the ECJ, the Member States appear to be the final arbiters of constitutionality in Europe, for all practical purposes. It is not surprising therefore, that the pluralist rhetoric referring to two Courts, each ultimate arbiter in its own sphere (and ultimate arbiter concerning the question of its limits) is one used by national lawyers and national courts, not, however, by the ECJ.
A pluralist approach does not, however, simply hide these realities behind a veil of theory-laden rhetoric. On the contrary, it helps focus on the political and legal realities that underlie the complex and interrelated mechanisms of decision-making within the multi-level European polity and helps ask important questions otherwise ignored. The many interactions that structure conflict management - between legal and political modes of conflict resolution on one hand, and between national and the European levels on the other - are easily covered up by a Schmittian[54] focus on who has the ultimate say. Some of these complexities come into view, when focusing on the kind of review national courts should engage in, once they have set their mind on not accepting the ECJ's premise that EC law trumps national constitutional law.
Here the article makes two central claims. The first claim is that the conception of the relationship between the ECJ and the FCC as devised by the FCC in its latest jurisprudence is based on a legally unconvincing and normatively inappropriate reading of the German Constitution. The second claim is that there is an alternative conception that provides a constitutionally sound, normatively appropriate and politically sensitive account of the relationship between the ECJ and the FCC. The Liberal Legal Pluralist approach claims to be such an approach. Whatever legitimacy this approach may have derives from the fact that the coherence of the legal order on the European level is not the only value that a European legal order should or does in fact embrace. Should a Member States Court strike down a piece of secondary EC law using the standards suggested by the Liberal Legal Pluralist approach, it has a good reason to do so. There is reason to believe that such an act could be a more valuable contribution to the development of the European Legal Order in the long run, than the grudging acceptance of bad laws in the face of judicial helplessness.
But of course this is not the whole story. Problems remain. The final point, therefore, is to acknowledge that the problem of securing coherence of the European Legal Order while at the same time respecting national constitutional traditions is one that knows no solution that works as a panacea. Any approach taking for granted the institutional setting, legal provisions and practices that exist currently must make difficult trade-offs and can't ultimately guarantee that it will deliver the goods. The claim concerning the approach suggested here is more modest. The approach is successful, if it can be used to frame questions, suggest answers and help negotiate solutions in a way that is more helpful than alternative approaches.
[54] In this respect C. Schmitt himself was perhaps less Schmittian than others. Schmitt described federal orders as legal orders in which the question of `quis judicabit' is ultimately left open, see C. Schmitt, Verfassungslehre, 9th ed. 1993, at 373: `Es gehört zum Wesen des Bundes, dass die Frage der Souveränität zwischen Bund und Gliedstaat immer offen bleibt...."