The European Arrest Warrant, Third Pillar Law and National Constitutional Resistance/Acceptance

Abstract

The EAW Saga as Narrated by the Constitutional Judiciary in Poland, Germany, and the Czech Republic In European societies of the early 21st century, the judicialisation of politics and society seems to be ‘a partial aspect of societal evolution’. Politics has become deeply judicialised and the judiciary has become profoundly involved in issues which used to be the sole domain of ‘pure’ politics. Some talk of ‘the secular papacy’, ie the judiciary of the Modern West playing the role of the 12th century papacy of the Medieval Western World. Others criticise the rise of ‘juristocracy’ and the decline of popular politics. Thus, it is not surprising that the phenomenon of ‘New Constitutionalism’ started to influence the emerging constitutionalisation of the European Communities in the 1960s and 1970s. A specific regime of European ‘constitutional tolerance’ involves constitutional and methodological pluralism among the Union and its Members, including the plurality of views on what is, and whether there is any, Grundnorm of the legal system, or who is the final arbiter of European Constitutionalism. This sort of pluralism makes the domestic judicial acceptance of European doctrines a necessary condition of the proper application of EU law. Thus, it is fair to say that the principle of primacy of European law cannot be understood from the ECJ’s perspective only. Instead, the primacy of EU law is formed by both the ECJ and national high courts.