De Europese Dimensie Van Constitutionele Toetsing (The European Dimension of Constitutional Review)

Abstract

National constitutional review of European Union treaties and legislation is often seen as a phenomenon that highlights conflicts between national and European legal orders. It also seems to be at odds with the EU principle of supremacy of European Union law. Thus, the legitimacy of the overall European legal order may be affected. Indeed, as experiences have shown, national constitutional courts have developed their own distinct perspectives on the relation between EU law and national constitutional law. In this contribution constitutional review by the German constitutional court is analysed on the basis of the central question: what effects does national constitutional review have on the overall legitimacy of the EU legal order? The authors come to the conclusion that the German experiences indicate that the national and European legal orders are not fundamentally conflictuous but may indeed strengthen each other. The German constitutional court often comes to the conclusion that European law does not conflict with national constitutional law, which is a strong sign, also towards the German public, that EU and national law are mutually compatible. Moreover, constitutional review has often highlighted the responsibility of German politicians in the European decision making process. What lessons may be learnt for EU Member States without constitutional courts, such as the Netherlands? In this country a fundamental academic and political debate is going on about the possible introduction of constitutional review, but the European dimension is hardly addressed. The authors of this contribution argue that consitutional review should be attributed to a separate and independent constitutional court for reasons of unity of the legal order and visibility of decisions. At the same time, the Dutch constitution should be strengthened by identifying and explicitating important elements of the constitutional order. In this way, constitutional review will have a substantive meaning. Given the German experiences, constitutional review would also have effects on the relation towards EU law. At the very least, the actual nature of the relation between the national and European legal order would be clarified for the Dutch public. Especially the false assumption that the national legal order is reduced to an instrument of EU law could be rebutted. Constitutional guarantees would, moreover, have to be taken into account by policy makers in the European decision making process. As such, national constitutional guarantees in combination with constitutional review would reinforce the idea that the Netherlands has an active role to play in the European integration process and the idea that the national constitutional order is not set aside as a result of this process but is indeed an essential element thereof.