National constitutional courts in the European constitutional democracy

Abstract

This article critically assesses the transformation of national constitutional courts’ place in the law and politics of the EU and its Member States. This process, which has its origins in the foundational constitutional doctrines of EU law, has recently been accelerated on the one hand by a handful of recent European Court of Justice (the ECJ) decisions and on the other hand by national constitutional courts’ own approach to EU law. The ECJ’s doctrine, based on an orthodox understanding of the primacy of EU law, fails to acknowledge the difference between constitutional and ordinary national courts implementing the distinction between ordinary and constitutional legality. At the same time some national constitutional courts show little sensibility to the nature of EU law and to the symbiotic relationship between constitutional democracies established after World War II and European integration. The assessment is based on the idea of European constitutional democracy, which is briefly sketched here. The article argues that maintaining the special place of national constitutional courts is in the vital interest of both the EU and its Member States.