Cooperation of courts: The role of supranational jurisdictions in Europe

Abstract

The constitutional protection of individual rights has been in place, in developed democracies, for several decades. In all the countries that have adopted the idea of a written constitution, there is a set of constitutional provisions on rights and liberties, and there are mechanisms for the protection and enforcement of those rights and liberties by an independent judiciary. A constitution is no longer something that functions exclusively within the sphere of politics; rather, it is regarded as the Grundnorm , determining the legal system as a whole and, in particular, the status of the individual. While, in most European countries, the last word in constitutional interpretation is reserved to a separate constitutional court, all courts and judges have a right (as well as an obligation) to apply constitutional provisions as they arise in the context of ordinary legislation and administrative action. In effect, constitutions became “ living instruments, ” existing not only as written texts but also (and fi rst of all) as sets of judicially created rules and principles. In Europe, we are already well acquainted with the “ juridifi cation ” of national constitutions. As correctly observed by Andras Sajo: [C]ontinental constitutional adjudication is strongly in favor of the increased protection of fundamental rights. In view of this fact, the majority of Italian, German and Spanish cases grow out of actual disputes, and constitutional review there occurs mostly as appellate constitutional adjudication. Constitutional adjudication does not primarily affect the legislature but it does the ordinary administration of justice and in practice, it extends constitutionalism (primarily through the protection of