Constitutional Dialogues, Pluralism and Conflicting Identities

Abstract

Dialogue is not only a means of communication; it is also a medium of power. In European law, this is illustrated by the Solange formulation which can be viewed both as a perfect platform for launching constitutional dialogue and for vindicating power. The formulation has now spread over not only within the rhetoric of national courts but even within the language of the European Court of Human Rights and the Court of Justice. This Europeanization of Solange leads irremediably to an increased plurality of the EU legal order since it implies deference not only to European values but also to constitutional identities of the Member States. This is reflected in the recent case law of the Court of Justice where one can speck some clear traces of a doctrine of deference towards national identities. Plurality is as well reflected in the schizophrenic ruling of the Federal Constitutional Court (FCC) in June 2009. Yet the constitutional courts have been marginalized – especially if compare with lower courts – when it comes to establishing a fruitful and direct dialogue with the Court of Justice. Obviously, the application of the direct effect doctrine by the constitutional courts entails an acceptance of the preliminary ruling procedure. Very few constitutional courts have made preliminary rulings to the Court of Justice. But perhaps are we on the verge of a trend-shift on this matter?