What has been the impact of the enlargement of the European Union (EU) to the east on the judicial interaction between the EU and Member States’ legal orders? What changes (if any) has this brought in the judicial approach of the European Court of Justice (ECJ), in comparison with the newly emerging approach of the European Court of Human Rights after the enlargement of the Council of Europe to the east? And yet, is the distance between the judicial impact of, respectively, the law of the EU (hereinafter EU law) and the law of the European Convention on Human Rights (ECHR) on the EU Member States and the Council of Europe now shorter than it was before the enlargement of Europe to the east?
In attempting to answer these research questions it is not possible to refer exclusively to the relevant literature, which has mainly1 examined the impact of the 2004 and 2007 enlargements from two particular points of view. Focusing exclusively on the domestic constitutional situation, some scholars have investigated the ‘European’ constitutional amendments within the Constitutions of new Member States in central and eastern Europe.2 A second group, who instead focus exclusively on the European dimension, has studied the institutional adjustments the EU carried out (or should have carried out) in order to be ready for the accession of the ten central and eastern European (CEE) States, along with the short-term impact of the enlargement on the EU's constitutionalisation process.3
The exclusivity of these points of view, taken as the focus of investigation, entails a weak point in relation to our research questions, which can be answered only within an investigation that valorises the dynamic natureof the enlargement. On the contrary, both of the approaches in the recent literature entail the problem of analysing the enlargement in a retrospective light: an important but closed chapter of the history of European integration. Their main disadvantage seems to be that, under those points of view, the enlargement is considered more as a final achievement, rather than as a constitutional process in line with the dynamic nature of the EC supranational system.4 In other words the enlargement, in both cases (focusing exclusively either on the national constitutional side or the European side), tends to become a static and isolated component, rather than the ‘constitutional work in progress’ that, in my view, it should be seen as.
The question is the following: how to move the research trends from a retrospective dimension towards a prospective and dynamic one in order to answer the research questions that have to do with the judicial interaction between the national constitutional dimension and the European dimension before and after the enlargement of Europe?
In my view the key element is to try to answer these questions in the framework of the investigation trend that focuses on the relationships between interacting legal orders,5 with particular attention paid to the judicial interaction between the European courts and the CEE Member States’ Constitutional Courts.6 This means looking contextually at both sides of the judicial coin (European and national constitutional) in order to evaluate the reciprocal influences between the two sides.
This perspective will be investigated subject to two assumptions. The first is the firm belief that, today more than ever, the courts (especially, in relation to the national legal orders, the constitutional courts) are the institutions which, in their respective legal orders, occupy a privileged position to forge closer ties between different but interacting legal regimes. For this reason, in this paper, the courts (both the European and the constitutional ones) will often be identified as the ‘judicial interconnecting entities’ between interacting legal regimes. The second assumption stems from the awareness that the said interconnection is, in most cases, based on a pre-existing risk of constitutional conflict between legal orders situated at different but not hierarchically based, levels. One of the areas in which the risk of conflict remains very high is the delicate issue of the adequacy of the standard of protection of fundamental rights. This difficulty remains despite the ever-greater coordination between the levels. It raises the most sensitive questions, from a constitutional perspective, and is, therefore, most likely to be the locus for constitutional conflicts between the national constitutional dimension and European dimension. This issue is presented in the first part of the paper.
That being said, as far as concerns the structure of the paper, the investigation of the ways in which the interconnecting judicial entities are dealing with the new risks of judicial misunderstanding and constitutional conflicts post-enlargement will focus on two main fronts.
First, I will examine the reactions of some CEE Constitutional Courts to the new challenges brought by the enlargement, distinguishing between initial reactions immediately after the enlargement and a second judicial trend that is still ongoing. The saga of the European Arrest Warrant will be taken as a case study.
The second front (the other side of the coin) will focus on the European judicial side, asking how the European courts in Luxembourg and Strasbourg have reacted, respectively, to the enlargement of the EU and of the Council of Europe. In this regard, the paper will also outline what still needs to be done in order to foster communication between the two abovementioned legal dimensions (European versus national), especially on the European judicial side.7
The concluding remarks have a threefold aim. First, they will summarise which models of conflicting settlement have emerged from the analysis. Secondly, they will focus on the trend of progressive re-approachment between the domestic impact of ECHR law and EU law after the enlargement of Europe. Thirdly, they will address the idea of judicial dialogue, in an attempt to define such a concept, which is often used in too general terms.
Part One: The CEE interconnecting judicial entities
The first reaction
Based on what we have considered above, the analysis begins with the reactions of certain CEE Constitutional Courts to the risk of constitutional conflicts between the European level and their domestic legal orders. It will then proceed to consider how these courts are actually settling EC legal disputes,8 focusing on the European Arrest Warrant saga as a case study, and question whether certain general trends might be identified and injected into the current ‘season’ of European cooperative constitutionalism.
There are few doubts that the potential grounds for the raising of such constitutional conflicts were inherent in the CEE legal orders at the time of their accession, and the reasons for this are too obvious to be further discussed here. It is sufficient to recall the early (and later) predictions warning of: (1) the risk that the taste of freedom – recently rediscovered after years of substantial or formal subjection to the Soviet Union – would make the CEE candidate countries strongly averse to a (new) transfer of sovereignty to the EU, albeit in a complete different political and historical context;9 (2) the related argument underlying the CEE legal orders’ ‘sovereignist’ nature with regard to western constitutional models;10 (3) the emphasis on the supremacy of the CEE Constitutions over all other sources of law (including international treaties);11 and (4) the Constitutional Courts’ role within CEE legal orders, as protagonists of the transition period and guardians of regained sovereignty, who are empowered to interpret and annul international treaties that might run foul of national Constitutions.12
Considering how the CEE Constitutional Courts, as the interconnecting domestic judicial entities, have reacted up to the abovementioned risks of collisions between the domestic legal orders and the supranational one, two distinct periods can be identified: the first immediately following the enlargement of 2004; and the second still ongoing. In order to be, as far as possible, more prospective than retrospective, we will devote greater attention to the second, current period.
In relation to the first (immediately post-accession) period, the less-than-Europe-friendly approach (more in tone than in final outcome) of certain CEE Constitutional Courts’ decisions seems to have less to do with the abovementioned warnings and more to do with psychological and emotional reactions13 to ‘the EU treatment’ of the CEE candidate countries in the pre-accession period. It would, in fact, be difficult and not less confusing to try to understand in light of those warnings alone why the Polish Constitutional Tribunal,14 only a few days after its Europe-friendly judgment regarding the European Arrest Warrant15 (which will be examined below), rejected, on the one hand, as constitutionally groundless all petitioners’ complaints against the EC Accession Treaty and, on the other, felt the need to highlight that the ‘accession of Poland to the European Union did not undermine the supremacy of the Constitution over the whole legal order within the field of sovereignty of the Republic of Poland’. The judgment continued that, in the case of conflict between national laws and European law, ‘the nation as the sovereign would need to decide on amending the Constitution or causing modification within Community provision or, ultimately, on Poland's withdrawal from the European Union’. The tone of the recalled reasoning seems to express the feeling of the new Member States which could finally, once having joined the club, express their judicial grudges caused by having been discriminated by the same club, during the pre-accession negotiations. It is in fact well proved that the demand for consistency and reciprocity between internal and external human rights policies, raised almost 10 years ago by Philip Alston and Joseph Weiler,16 was never neglected on an EU level as much as it was in the CEE candidate countries during the monitoring period, especially in light of the criteria laid down in Copenhagen in 1993.17 Such policy was based, it has been argued,18 on core discrimination. In order to join the EU, the CEE candidate Member States were required not only to adhere to a degree of scrutiny which, at that time, was not applicable to other States (in the absence of a binding Charter of Fundamental Rights) within the EU, ‘but also to a system of enforcement which simply did not exist internally’ in the EU. In other words, the candidate countries were required to meet standards that several of the existing Member States did not meet at that time, regarding, for instance, the field of minority protection,19 a key element of the Copenhagen criteria but which was not at all an integral part of the European acquis.20 It is indisputably true that none of the first 15 Member States, at the time of their admission, were subject to the same preconditions and ‘that no earlier enlargement had been conditioned by rules regarding democracy and human rights’.21 In this regard, another element should be taken into account: the conditions to be fulfilled were entirely set by the EU without room for any negotiation or differentiation as to each candidate's peculiar position. In the end, the whole European pre-accession strategy was nothing more than a de facto ‘take-it-or-leave-it’ package.22
Why, then, should we be surprised by the less than Europe-friendly tone of some of the first post-accession decisions of CEE Constitutional Courts regarding matters of EU law?
Another post-accession, on-the-spot reaction of certain CEE Constitutional Courts to pre-accession treatment was substantially to ignore the interconnecting link between domestic law and European law. An eloquent example is the decision of the Hungarian Constitutional Court of 2004.23 The Hungarian judges voided a national statute, which was clearly passed in order to implement certain European Commission regulations, for being in breach of the constitutional principle of legal certainty, stating at the same time that ‘the question about the provisions challenged in the petition concerns the constitutionality of the Hungarian legislation applied for the implementation of the EU regulations rather than the validity or the interpretation of these rules’.
The same indifferent approach to European integration appears to characterise the decision of the Slovak Constitutional Court rendered at the end of 2005,24 where the judges declared unconstitutional a positive action provision adopted by the national legislature following an option (and not an obligation) provided for under the EC Race Directive25 granted to Member States.26 Furthermore, this ruling ignored the ECJ's developed case law on positive actions.27 As has been correctly stressed:
The ‘judicial hypocrisy’29 shown by the Hungarian and Slovak Constitutional Courts must be read, together with the ‘judicial grudge’ of the decision of the Polish Constitutional Tribunal mentioned above, in light of the shift from the ‘imposed obedience’ of the pre-accession period to a ‘voluntary obedience’ which characterises the post-accession period. In other words, if, in order to become Members, the candidate countries did not have any alternative but to obey the (extremely demanding) requirements of the EU, then, after their formal entrance, what was previously mandatory suddenly became voluntary, and respect of the acquis and the application of EC law became a question of ‘constitutional tolerance’.30 One might say that the pre-accession policy was not exactly the best strategy to foster such tolerance.31
It is peculiar that after almost 10 years of approximation, the Slovak Constitutional Court has not found an opportunity to redress the relationship between Slovak and EC law?… What the positive action case definitely shows is that the Slovak Constitutional Court is [at the beginning of the post-accession period] unwilling to apply EC law or the approximated Slovak norm when is not required to do so.28
After the first post-accession period: lessons from the European Arrest Warrant saga regarding conflict settlement between interacting legal orders
Despite the negative effects of the EU pre-accession strategy and the consequent ‘less than enthusiastic’ debut of the CEE Constitutional Courts in the European judicial arena, and against all the negative predictions about their lacking the necessary amount of ‘constitutional tolerance’,32 once the first post-accession period was over the approach of the CEE interconnecting judicial entities seems to represent a leading model for a new season of judicial communication among interacting legal orders.
It is has been argued33 that those courts, being part of the third generation of constitutional courts,34 are distinguished by the fact that they were born into the global constitutional movement, which has determined their rapid reception of international standards and legal solutions and strong mutual cooperation. In particular the post-communist constitutional courts developed in a favourable international environment where, as opposed to the times when the ‘ancient’ European constitutional courts were established, there already was (and is) a common European language of constitutionality and fundamental rights.35
The next section highlights, through a case law-based analysis, that not only did the CEE Constitutional Courts appear to have ‘learned to speak’ that language very quickly, but also that they are starting to express new ideas using that same language of constitutional pluralism. In this context, the saga of the European Arrest Warrant (hereafter EAW) seems to be the most suitable example, not only because it implied a confrontation between ‘western’ and ‘eastern’ constitutional courts, but also because it appears a paradigmatic case to study the reactions of the domestic interconnecting judicial entities to the conflicts arising between the European and national legal systems.
European Arrest Warrant as a case study
As provided for by Article 1 of the Framework Decision 2002/584/JHA establishing the European Arrest Warrant, the EAW is a judicial decision issued by a Member State based on the arrest or surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or the carrying out of a custodial sentence or detention order. It is, therefore, a cooperation mechanism of a strictly judicial nature, which permits practical administrative assistance between Member States’36 executive bodies, thus leading to the free circulation of criminal decisions, grounded on a system of mutual trust among the Member States’ legal systems.37
The legal manifestation of such mutual trust is the principle of mutual recognition of judicial decisions – as provided for by Article 1, n. 2 of the Framework Decision – with the obligation binding on all Member States to enforce an EAW issued by another EU Member State. According to the fifth considerando of the Framework Decision: ‘The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities.’ In this regard, in spite of all the differences38 that may be emphasised,39 and highlighted in certain national statutes for the adoption of the Framework Decision,40 it is clear that both measures (surrender by EAW and extradition) have as their goal the surrender of a requested person to the relevant authority of a Member State, for the purpose of prosecution or the carrying out of a criminal sentence.
A number of Member States have resisted the application of the EAW to one of their own citizens. In fact, before the Framework Decision's adoption, 13 of the (then) 25 Member States provided for constitutional dispositions forbidding,41 or somehow limiting,42 the extradition of nationals. No wonder, then, that the innovations of the EAW provisions caused, at the time of their adoption,43 unavoidable ‘constitutional disturbance’ in the majority of Member States. Some countries, such as Portugal,44 Slovakia,45 Latvia46 and Slovenia,47 revised their Constitutions before their constitutional courts had a chance to rule on the alleged unconstitutionality of the implementing statute, as had occurred in Poland, the Czech Republic and Cyprus.
Germany, instead, faced quite an unusual scenario: the constitutional48 amendment was introduced shortly before the adoption of the European Framework Decision 2002/584/JHA in order to allow, under certain circumstances, the extradition of a citizen, which had previously been banned.49 However, this did not avoid the intervention of the Federal Constitutional Court at Karlsruhe over the national regulation for the adoption of the Framework Decision.
In order to assess how (differently) some west and eastern European constitutional courts have reacted to the risk of constitutional conflict when implementing the EAW Framework Decision, it is useful to analyse and compare the relevant decisions50 of the German, Polish and Czech Constitutional Courts.
The German case
As previously mentioned, shortly before the implementation of the Framework Decision on the European Arrest Warrant, Article 16 (2) of the German Constitution had, thanks to prophetic intuition, already been revised.
The new provision permits derogation to the ban on extraditing a German citizen to allow his surrender to an EU Member State or an international court, on the condition that the fundamental principles of the rule of law be respected.
In 2003, the German Minister of Justice had rejected a request for extradition to Spain submitted by the Spanish police authority against a German and Syrian national accused by the Spanish authorities of participation in criminal association and terrorism, committed in Spanish territory. The reason for the decision was that in 2003 the legislation for the implementation of the new provisions under Article 16 (2) of the Constitution had not yet been issued and, therefore, the application of the Article's previous version, unconditionally forbidding the extradition of a German citizen, was non-negotiable.
Following Germany's adoption of Framework Decision 2002/584/JHA through the Europäisches Haftbefehlsgesetz of 21 July 2004, Hamburg's jurisdictional authorities granted the request for surrender of the individual to Spanish authorities on the basis of the Framework Decision which, as anticipated, does not exempt Member States’ citizens.
An appeal against this decision before the competent Länder Constitutional Courts was unsuccessful and the German citizen subject to the EAW appealed to the Constitutional Court, asserting, inter alia, the alleged violation of the provisions of Article 16 (2) of the Basic Law.
The appellant claimed that the transposition Act of Framework Decision 2002/584/JHA lacked democratic legitimacy for having introduced into national legislation a provision potentially depriving one's personal liberty and offending the principle of legal certainty, such as, for instance, the derogation rule to the principle of double criminality.
The federal government intervened, stating that the constitutional complaint was to be considered groundless, above all due to the binding nature of the decisions pursuant to the EU Treaty, which (strikingly enough, as stressed by the German government) ‘must have unconditional supremacy over national law, including constitutional principles’.
The German constitutional judges51 must have been of a different opinion, as they declared the national law implementing the EAW Framework Decision unconstitutional since the German legislator did not conform to the provision pursuant to which the extradition of a German national is only admissible as long as the rule of law is upheld.52
In particular the German judges made it clear that the third pillar's intergovernmental dynamic may not, under any circumstances, fall within the EC acquis of the first pillar, a reminder that the EU Treaty's express provisions on the Framework Decision's absence of direct effect is due to the Member States’ preference to avoid the ECJ conferring direct effect on these sources in the same way that it had determined EC directives’ interpretation.
Furthermore, the constitutional judges maintained that, notwithstanding the high level of integration, the EU still embodies a partial legal system pertaining to the field of international public law.
Accordingly, from a constitutional view and directly pursuant to Article 16 (2) of the Basic Law, there should be a case-by-case review to ensure that prosecuted individuals are not deprived of the guarantees of fundamental rights they would have been granted in Germany, and that, except for obvious language problems and a lack of familiarity with the criminal law of the destination country, this may not, in any event, lead to the worsening of the individual's situation.
Seemingly, the underlying reasoning behind the decision is a sense of ill-concealed distrust in the legal systems of other Member States as to the safeguarding of the accused person. Therefore, the German legislator has been blamed for infringing, by implementing the Framework Decision, the principle of proportionality, having not chosen the least restrictive of the possible options – the right for German citizens to be prosecuted and serve any sentence passed against them in their native land, thus undermining citizens’ special connection to their own state's legal order.
According to the German constitutional judges, the legislator did not utilise the discretion allowed by the Framework Decision, which permitted the judicial authorities to refuse execution where the EAW relates to offences which ‘are regarded by the law of the executing Member State as having been committed in whole or in part in the territory of the executing Member State or in a place treated as such; or have been committed outside the territory of the issuing Member State and the law of the executing Member State does not allow prosecution for the same offences when committed outside its territory’.53
In such circumstances, according to the Federal Constitutional Court (FCC), a significant domestic connecting factor is established and ‘trust of German citizens in their own legal order shall be protected’ (paras 86–7). The German literature has criticised the FCC for basing its reasoning on predominantly historical arguments, thus overemphasising the historic close relationship between the German state and its citizens. As Ulrich Hufeld pointed out, the Senat remained in a ‘Schneckenhaus’ by focusing only on Article16.2 Basic Law as would the Grundgesetz in its literal shape reflect the meaning of the whole Constitution.54
By reading the ruling from a different perspective, it is rather evident how, behind the attempt to verify the responsibility of the German legislator in the transposition activity, the Federal Court's actual aim was to halt the acceleration process, which followed the EAW Framework Decision's adoption of European integration concerning the third pillar which, according to the same court, ‘cannot overrule, given its mainly intergovernmental character, the institutional dynamic peculiar to a system of international public law’.
It was opinion of the Karlsruhe judges that in light of the safeguards of the subsidiarity55 principle, ‘the cooperation in criminal matters established within the third pillar on the basis of a limited mutual recognition of criminal decisions, does not presuppose general harmonization of criminal laws of the Member States; conversely, it is a way to preserve national identity and statehood within the uniform European legal space’ (para. 77; emphasis in original).
It has been correctly pointed out56 that the key word in this crucial part of the reasoning is the adjective ‘limited’, through which the Constitutional Court has precisely set a limit to the ‘optimism’ of European judges who, in the first ruling57 dealing directly with the third pillar's integration scope, expressly stated how ‘the ne bis in idem principle necessarily implies a high level of confidence between Member States and that each of them recognises the criminal law in force in the other Member States even when the outcome would be different if its own national law were applied’ (para. 33).
The message sent from Karlsruhe proved, beyond all doubt, that any Member State's attempt to imitate first pillar's procedures in such a constitutionally sensitive context, by definition part of its (remaining) hard core of sovereignty, would not have been tolerated by the Solange judges.
Although the majority of the Constitutional Court58 made no mention of the ECJ ruling in Pupino, it is quite a direct response to the ‘acceleration’, by way of the third pillar, which Pupino embarked on 30 days before. It could have been expected that the German Constitutional Court would at least mention and follow the outcome of the Pupino decision, even if it, after consideration, finally deviated from the approach of the ECJ.59
A comparison between the Polish and the Czech cases
To understand fully the implications for the relationship between the European and domestic constitutional legal systems of the adoption of the Framework Decision on the EAW in Poland and the Czech Republic, as well as the reactions of their Constitutional Courts to the risk of conflict between the constitutional and European dimensions, it is necessary to take a step back, to the process which led to the adoption of the Czech and Polish Constitutions in 1992 and 1997, respectively. Both Constitutions are characterised by a number of clauses aimed at the protection of long-sought sovereignty, attained after decades of subjugation to communist regimes. Both Constitutions make a distinction, as is the case for the constituent documents of most CEE countries, between internal and external sovereignty.60
The next aspect to be taken into account is the ‘low-profile approach’, typical of these countries, to the constitutional amendments leading to accession to the EU. Some scholars maintain that there is a difference between Poland and the Czech Republic in their preparation for EU accession, remarking on the high level of constitutional amendments achieved by the Czech Republic and the only merely average the Polish ones.61 It should be emphasised, however, that – partly due to the hostile response of public opinion to their accession – with regard to the sensitive issue of the supremacy between EU law and the Constitution, both national legislatures only amended the relevant constitutional parameters slightly, leaving to the respective Constitutional Courts the heavy and unwanted burden of resolving the inevitable conflicts between the constitutional and European dimensions which such relaxed ‘super primary’ parameters could only worsen.62
As to the specific question relating to the alleged constitutional invalidity of the EAW Framework Decision's implementing Act, the Constitutional Courts of Warsaw and Brno have handed down directly relevant judgments. Within the two legal systems, the implementing regulations did not bear notable differences, and the relevant constitutional parameters as to the extradition ban on nationals were to a certain extent similar. The Polish Constitution was (before the constitutional review which followed the decision of the Constitutional Court) lapidary. In fact, Article 55 stated that ‘the extradition of a Polish citizen shall be forbidden’. In the Czech Republic, Article 14 (4) of the Charter of Fundamental Rights and Liberties, which encompasses all rights and liberties protected by the Constitution of the Czech Republic, states more generally that ‘no Czech citizen shall be removed from his/her homeland’.
One distinguishing feature between the two countries was the extent of the debate on the opportunity to amend the two abovementioned constitutional provisions in view of the then forthcoming accession to the EU. The Czech Republic never granted priority to the issue. In Poland, on the contrary, there was considerable debate. Revision of Article 55 of the Constitution had already been envisaged by some insiders, who stressed how an unconditional ban on extradition of nationals could potentially represent a hindrance to the European integration process within the third pillar, which in turn – as already emphasised – had been gaining strength since the enforcement of the Amsterdam Treaty. Conversely, others thought that the conflict could be settled through discussion. In fact, the second course was the one opted for, given the highly symbolic value of Article 55 which, in the Polish Constitution, enshrines those ideals of identity and sense of belonging deeply rooted within an ethnocentrically oriented demos still bound to nationalistic63 memories, which characterise the predominant view in central and eastern Europe.
Against this background, it is interesting to move on to draw parallels between the actual reasoning of the Constitutional Courts of Warsaw and Brno which, while starting from similar constitutional parameters, and with a practically equivalent object, reached opposite outcomes. The first judgment, in fact, annulled the national regulation; the second did not find any constitutional illegitimacy.
The judges of the Polish Constitutional Tribunal64 had to establish whether surrender, a substantive issue of the EAW, could be regarded as a subset of extradition, the latter being expressly forbidden by Article 55 of the Constitution if the person concerned is a Polish national. Having answered positively to the interpretative dilemma, the judges held that the constitutional concept of extradition was so far-reaching as to encompass the surrender of a Polish citizen, whose purpose, at least at the Framework Decision level, is to replace within the European legal space, the bilateral, intergovernmental dynamics typical of the mechanism of extradition.
After grouping under the same legal notion the two concepts of extradition and surrender, the second argument of the Polish Constitutional Tribunal was to point out how the admissibility of a national's surrender, provided for by the Framework Decision, undermined the rationale behind the ban in Article 55 of the Polish Constitution, under which the essence of the right not to be extradited is that a Polish citizen must be prosecuted before a Polish court. According to the Tribunal, Poland's accession to the EU brought about a radical change. Namely, the said accession necessarily implies a revision of Article 55 in order to make the constitutional requirements conform to EU provisions. This constitutional revision, however, according to the Polish judges, could not be carried out by the judiciary, through a very creative constitutional interpretation of the relevant constitutional parameter, but needed a formal constitutional revision carried out by the legislators.
The Pupino judgment, which reasserts the obligation for national courts to adopt a consistent interpretation of the Framework Decisions, pursuant to Article 34 (b) TEU, was yet to be adopted by the ECJ. Nevertheless, the opinion of Advocate General Kokott regarding the judgment had already been published.65 The Polish constitutional judges, without directly mentioning the Pupino decision, considered the possibility of an obligation of consistent interpretation. However, they did not find it relevant in the current situation since, according to their reasoning, the obligation was limited by the ECJ itself, as it may not worsen an individual's condition, especially as regards the sphere of criminal liability.66 As has been recently noted,67 the Polish judges did not refer to specific judgments to show on what basis they had constructed this argument. While national legislation is bound under Article 9 of the Polish Constitution to implement secondary EU legislation, a presumption of the implementing act's compliance with constitutional norms cannot be inferred sic et simpliciter. The Polish Constitutional Tribunal easily concluded that, by permitting the prosecution of a Polish citizen before a foreign criminal court, the national regulation implementing the EAW Framework Decision would have prejudiced the constitutional rights granted to Polish citizens, and therefore it could only be found to be unconstitutional.
In spite of having clarified the unconstitutionality of the matter, the Tribunal found that the mere annulment of the provision would have led to a breach of Article 9 of the Constitution, according to which ‘Poland shall respect international law binding upon it’, and whose application, according to the constitutional judges, also encompasses Poland's obligations stemming from accession to the EU. Therefore, in order to comply fully with such obligation, a change of Article 55 was considered necessary to provide for the possibility, departing from the general ban on extradition of nationals, of enabling the surrender of such persons to other Member States in the execution of an EAW.
Meanwhile, the Tribunal, by enforcing Article 190 (3) of the Constitution, set a deadline of 18 months for implementation of the decision, to give the legislature time to adopt the necessary amendments while the provision remained temporarily in force. An appropriate amendment of Article 55(1) of the Constitution was expressly suggested by the constitutional judges to the constitutional legislature, so that this provision would envisage an exception to the prohibition on extraditing Polish citizens, to permit their surrender to other Member States of the EU on the basis of an EAW.68
One year later, the Czech constitutional judges founded their reasoning on a completely different set of grounds. After recalling a decision issued barely two months earlier (judgment of 8 March 2006), where they had carried out an express revirement of their own jurisprudence in order to meet the interpretation criteria required by the application of the equality principle as interpreted by the ECJ,69 the judges were faced with the sensitive issues of the binding nature, and the related discretionary margin left to the legislator regarding cooperation in criminal justice matters, which were to be attributed within the scope of the Framework Decisions pursuant to Article 34 EU.
Showing a higher degree of openness to (and extensive knowledge of) EU law, the Czech constitutional judges broadly touched upon the Pupino judgment, and although perhaps underestimating its added value, they pointed out how the obligation of national judges to interpret, as far as possible, national law in conformity with Framework Decisions adopted under the third pillar – and pursuant to such jurisprudence – would leave unprejudiced the issue relating to the enforcement of the principle of primacy of EU law over (all) national legislation.
The Czech Constitutional Court, taking into account the doubts concerning the interpretation of the Framework Decision's nature and its scope, seriously considered the possibility of proposing – evidencing once again its will for dialogue with the EU's supreme judicial body – a preliminary reference to the ECJ, though later ruling out the option since the Belgian Cour d'Arbitrage, as anticipated,70 had already addressed the ECJ regarding the same issue. The Czech constitutional judges, then faced with the dilemma of whether they should suspend judgement concerning constitutionality while ‘awaiting’ the ECJ's answer to the Belgian referral, or rather rule on the matter, chose the latter option. The most interesting aspect of the Czech decision is that the judges attempted to find amongst all the potential interpretations of the relevant constitutional norm (Article 14 (4) of the Czech Charter of Constitutional Rights) the one not which did not clash with EU law principles on the secondary legislation. In particular, the judges highlighted how, without the support of an interpretation effort, the wording of Article 14 (4), according to which no Czech citizen shall be removed from his homeland, does not fully account for71 the actual existence of a constitutional ban on the surrender of a Czech citizen to a foreign state, in execution of an arrest warrant, for a set period of time.
In the view of the Czech Constitutional Court, two plausible interpretations exist. The first and literal one, even though it might lead to upholding the ban on extradition within the constitutional norm, would have at least two disadvantages. First, it would not take into account the ‘historical impetus’ underlying the adoption of the Charter of Fundamental Rights, and especially of Article 14 (4). The Constitutional Court stressed, in fact, how a historical interpretation of the criterion under discussion clearly explained that, based on the wording of the Charter between the end of 1990 and the beginning of 1991, the authors who drafted the ban on a Czech citizen being removed from his or her homeland, far from considering the effects of the implementation of extradition procedures, had in mind ‘the recent experience of communist crimes’ and especially of the ‘demolition operation’ that the regime had perpetrated in order to remove from the country whoever represented an obstacle to the hegemony of the regime itself.
Secondly, an interpretation of that sort would lead to a violation of the principle, clearly expressed for the first time by the constitutional judges, according to which all domestic law sources, including the Constitution, must be interpreted as far as possible in conformity with the legislation implementing the European integration evolution process. An obligation that the constitutional provisions be interpreted consistently with EU law, which the constitutional judges derived from the combined provisions of Article 1 (2) of the Constitution, was added because of the accession to the EU and pursuant to which ‘the Czech Republic is compelled to fulfil obligations originating under international law’, and Article 10 EC on the principle of loyal cooperation between Member States and the EU.
On the basis of a teleological approach, the Czech constitutional judges went on to identify the constitutional norm's most consistent interpretation of the implementing act, as well as of Framework Decision 2002/584/JHA, to the Polish Constitution. It is not surprising, then, that the court managed to find constitutional grounds to almost all problematic Framework Decision dispositions.
Accordingly, it is plausible to infer that the Czech Constitutional Court, in its firm intent to reach greater consistency between Article 14 (3) of the Constitution and the European Framework Decision, strained the literal content of both the constitutional dispositions and the domestic law under discussion. The argument was that, whereas the constitutional norm had been interpreted as a mere ban on the surrender of a Czech citizen to the jurisdictional authority of another Member State for the purpose of prosecution for a crime committed in the latter's territory, the grounds underlying the whole decision would have ceased, i.e. the equivalence in terms of protection of fundamental rights among EU Member States, reflecting also a substantive convergence of the various criminal legislations and procedures.
Unavoidably, this led to the acceptance by the Czech judges of the principle of mutual trust in the criminal legislation of other Member States’ legal systems (rejected by their German judicial colleagues) through the direct reference to the ECJ decisions in Gozutok and Brugge, whose findings have been questioned by the ‘sceptical’ approach of the German constitutional judges.
Comparative jurisprudential views
On a closer examination of the Polish and Czech Constitutional Courts’ decisions on the EAW, two different expressions of the same acceptance of the primacy of the third pillar EU legislation, with no direct effect over domestic law, including the national Constitution, can be identified. In the Czech case, the judicial strategy leading to primacy was that of resorting to consistent interpretation, along with the manipulation of the wording of the relevant Article 14 (4), so as to provide constitutional validity to an EAW issued against a Czech citizen.
In the case of Poland, instead, the Polish Constitutional Tribunal, ‘tightened’ by the constitutional parameter which left no room for misunderstandings or creative interpretation, asserted Poland's respect for European law binding upon it in a different way. Accordingly, a constitutional change in the relevant parameter – which it was possible to include within the fundamental principles at the heart of the Constitution – was considered convenient for attaining the full conformity with the EU law requirements.
Needless to say, if the primacy of EU legislation over internal law can, in theory, be quite easily assumed with regard to the European dimension, its fulfilment on a national level is conditional upon the Constitutional Courts’ acceptance and, in the end, openness to the ‘reasons of European law’.
It is possible to argue that, although the Czech and Polish courts took fundamentally different approaches in reaching their conclusions, both showed a certain willingness towards that openness. Conversely, the final decision of the German Federal Constitutional Court evidences the radically different, tougher stance adopted by the German constitutional judges as regards the EAW. With regard to the final outcome of the German decision, although the predisposition of the constitutional parameters to international and supranational pluralism would have allowed the constitutional judges somehow to save the Framework Decision's implementing Act, they decided to annul it. They were widely criticised for this, with critics asserting the rule-versus-exception rationale between the first and second passage of Article 16 (2).72 Such an unconditioned, dismissive approach accounts for the presumption of the German Federal Constitutional Court that European law – and particularly that stemming from the third pillar – may, in no event, override the Constitution as the Basic Law. This outcome is not surprising. Unsurprisingly, as far as the counter-limit doctrine (riserva dei controlimiti) is concerned, the German Federal Constitutional Court is in fact in good company in Europe, and recently also the Constitutional Courts of some CEE States,73 although with slightly different attitudes, have joined the club.
What is truly amazing, instead, as compared with that which emerged from the analysis of the Polish and Czech decisions, is the legal reasoning and the judicial style that led the German court to declare the national law implementing the EAW as unconstitutional and void. First, the German judges confined the scope of the second paragraph of Article 16 (2), introduced by the 2000 constitutional revision, providing only under specific circumstances for the possibility of a German national's extradition, to a mere exception to the rule embodied by the statement ‘freedom from extradition’ granted to all German citizens, as per the first paragraph of Article 16 (2).
As has recently been observed,74 the clause in the second paragraph of Article 16 (2) differs significantly from the other derogatory clauses present within the German Constitution. The latter, in fact, serves the purpose of authorising strict restrictions to fundamental rights, whilst the former is instrumental to achieving the objectives set out in the European clause of Article 23 (1) of the Constitution.75 The value-based link between the paragraph added in 2001 to Article 16 (2) and the conditional opening to the supranational dimension, as codified in the first paragraph of Article 23 of the Basic Law, appears, therefore, to be the main missing element in the German court's legal reasoning, which focused instead on another nexus, that between ‘the German people and their domestic law’ (para. 67), along with the need ‘to preserve national identity and statehood in the uniform European legal area’ (para. 77).
The ruling makes clear that the only standards the German Federal Constitutional Court is willing to uphold are precisely those relating to national identity and statehood which touch upon the core of society's fundamental values, and which establish that strong sense of belonging, though somewhat ethnocentric, so dear to the Karlsruhe76 judges. Accordingly, their distrust as to the scope of the protection of individual rights granted under the other legal systems in the EU merges with a firm belief that the right to a commensurate protection from those different criminal law systems, which cannot afford an equivalent protection to the legal rights of a person under investigation, is the exclusive right of German citizens themselves.
The gap between this rationale and the EAW's basic underlying legal values could hardly have been greater. First, as regards the distrust, both the Framework Decision and its interpretation by the ECJ have called for mutual trust and solidarity among Member States, stressing their paramount importance as fundamental elements to the continuation of the Europe-wide cooperation in criminal matters. Secondly, as to the exclusive nature of the protections granted to German citizens, the essence of the European Framework Decision, based on a pluralistic, open concept of citizenship, is to grant additional guarantees to those, regardless their nationality, who have a special connection with the EAW's executing State, as witnessed under the previously mentioned Article 5 of the Framework Decision. The said Article, indeed, whilst specifying the guarantees to be granted by the State in particular cases, expressly provides for additional guarantees in the event that ‘the person subject to the arrest warrant for the purposes of prosecution is a national or resident of the executing Member State’,77 as well those provided by Article 4 (6) of the Framework Decision.78
Part Two: Interconnecting judicial entities on the European side
Strasbourg and Luxembourg at the forefront of the enlargement: an antithetical judicial approach?
Shifting from the domestic constitutional point of view to a supranational one, this paper will now focus on the reaction of the European courts to the potential increase in the risk of constitutional conflicts between the national and supranational legal dimensions caused by the recent accession of ten new Member States to the EU. In this regard, in spite of the risk of simplification implied in every attempt at synthesis, it is possible to identify two potentially alternative judicial routes. On the one hand, a further centralisation of adjudication powers, which the European Court of Human Rights at Strasbourg seems to be favouring after the enlargement of the Council of Europe to the east, and, on the other hand, the appraisal of national constitutional values, which the ECJ seems to have privileged since the major enlargement of 2004. A comparison of the different responses of the two European courts to the same phenomenon appears instrumental to our main conceptual file rouge that attempts to analyse the consequences of enlargement, taking into account multiple, interacting legal regimes.
However, before doing so, a clarification is necessary. The following remarks claim to be neither exhaustive nor conclusive. At the risk of oversimplifying very complex, diverse and seldom consistent judicial attitudes, my only defence is that what truly matters for the purposes of this paper is the identification of a general (although not always homogeneous) trend.79
Beginning with the reaction of the European Court of Human Rights to the enlargement, as it has already been stressed,80 since the end of the Cold War, the Council of Europe has experienced a dramatic increase in its number of members. In 1989, it was an exclusively western European organisation, counting 23 Member States. By 2007, its membership had grown to 47 countries, including almost all the former communist States of central and eastern Europe.81
Here, my main assumption is that the European Court of Human Rights has reacted to the Council of Europe's enlargement to the east with a more explicit understanding of itself as a pan-European constitutional court, as a result of both the exponential growth of its case load and the realistic possibility for it to ascertain systemic human rights violations in CEE countries. This has implied a shifting away from an exclusively subsidiary role as ‘secondary guarantor of human rights’ to a more central and crucial position as a constitutional adjudicator.82
It is arguable that this change in the European Court of Human Rights’ judicial attitude emerged, for the first time in 1993, in Judge Martens’ concurring opinion in the Branningan case.83 On that occasion, the majority of the court, recalling a judgment from 1978,84 stated that the choice to determine whether the life of the nations may be threatened by a ‘public emergency’ has to be left to the wider margin of the Member States. By reason of their direct and constant contact with the current, pressing needs of the moment, in fact, it was observed, the national authorities are in a better position than international judges to decide both on the actual occurrence of such an emergency and on the nature and scope of the necessary derogations to avert it. Conversely, in his concurring opinion, Judge Martens argued that:
Another call for a more proactive role for the European Court of Human Rights as a reaction to the Council of Europe's enlargement came from (again, the same) Judge Martens’ separate opinion on the court's 1995 decision in the Fisher v Austria85 case. To the then typical self-restraint of the Strasbourg Court, according to which ‘the European Court should confine itself as far as possible to examining the question raised by the Court before it’,86 Judge Martens objected that:
Since 1978 ‘present day conditions’ have considerably changed. Apart from the developments to which the arguments of Amnesty refer, the situation within the Council of Europe has changed dramatically. It is therefore by no means self-evident that standards which may have been acceptable in 1978 are still so. The 1978 view of the Court as to the margin of appreciation under Article 15 was, presumably, influenced by the view that the majority of the then Member States of the Council of Europe might be assumed to be societies which had been democracies for a long time and, as such, were fully aware both of the importance of the individual right to liberty and of the inherent danger of giving too wide a power of detention to the executive. Since the accession of eastern and central European States that assumption has lost its pertinence.
The message was indeed quite clear: an explicit invitation addressed to the court to assume a more general constitutional and centralised role. But it was only some years later (very recently indeed) that the European Court of Human Rights seemed ready to accept that invitation. Since 2004, in fact, with regard to some areas of the law,88 and not surprisingly especially in certain judgments directed to CEE Member States, the Strasbourg Court has started to go beyond its strict case-by-case approach of past years. More precisely, in a decision of 2004, the court held that a violation of the ECHR had instead originated in a systemic problem connected with the malfunctioning of domestic legislation which involved 80,000 persons. The court suspended 167 complaints pending before it on the same issue until the respondent State secured, through appropriate legal measures and administrative practices, the implementation of the fundamental rights protected by the ECHR (in that case the right to property).89 In particular, the court argued that:
No provision of the Convention compels the Court to decide in this way on a strict case by case basis. This self-imposed restriction may have been a wise policy when the Court began its career, but it is no longer appropriate. A case law that is developed on a strict case-by-case basis necessarily leads to uncertainty as to both the exact purport of the Court's judgment and the precise content of the Court's doctrine.87
Consequently, the impression is that recently, as a (late) reaction to the enlargement of the Council of Europe to the east, the European Court of Human Rights, with a view to supporting the respondent, very often a CEE90 State, in fulfilling its obligations under Article 46 has sought to indicate the type of measure the same State might take to put an end to the systemic situation identified in the present case. In doing so, the court seems to welcome a new activist approach, commensurate with the enlargement of the Council of Europe,91 towards the Member States’ legislative and judicial powers. Those States, in turn, seem gradually to lose freedom of choice as to the appropriate means to comply with a judgment notifying a breach of the ECHR92 and determine the appropriate remedial measures to satisfy the respondent State's obligations under Article 46.93 It is not a coincidence, then, that this approach was introduced in certain decisions addressed to CEE Member States.94
Although it is in principle not for the Court to determine what remedial measures may be appropriate to satisfy the respondent State's obligations under Article 46 of the Convention, in view of the systemic situation which it has identified, the Court would observe that general measures at national level are undoubtedly called for in execution of the present judgment, measures which must take into account the many people affected. Above all, the measures adopted must be such as to remedy the systemic defect underlying the Court's finding of a violation so as not to overburden the Convention system with large numbers of applications deriving from the same cause?… In this context the Court's concern is to facilitate the most speedy and effective resolution of a dysfunction established in national human rights protection. (para. 193)
As has been stressed already, the reason for the new judicial strategy described above has to be identified in the European Court of Human Rights’ lack of the necessary trust in CEE constitutional-democratic standards. This is quite puzzling, one might say, considering that since 1989 the Council of Europe has represented the key reference point and a source of inspiration for the CEE's constitutional momentum. However, upon closer scrutiny, it is only apparently paradoxical: is there anyone more aware of a constitution's weaknesses than those who actively contributed to its birth?
The further centralisation of the court's adjudication powers, along with the reduction of the appreciation margin, namely at the level of CEE Member States, may not be regarded as a foolish activist jump but rather as a considered step aimed at reducing the exploding case load, bearing in mind Sadursky's words: ‘If there is a domain in which concern over national identity and accompanying notions of sovereignty are obviously weak in central and eastern Europe is in the field of protection of individual rights.’95 The same does not apply to the different scenario of the EU constitutional dimension, where the penetration of European law into the domestic legal orders and the constitutional conflict between the national and the supranational levels do not seem destined always to expand, as in the case of the European Court of Human Rights intervention, the content of the constitutional rights, but rather, to the contrary, as the EAW saga shows, at least sometimes, to force constitutional changes with a restrictive result for certain Member States.96
Against this background, and with regard to the new ‘season’ of a centralised judicial activism of the European Court of Human Rights, the relevant question is whether (and in the case of a positive answer, in which direction) the ECJ has somehow developed a new judicial sensitiveness after the 2004 and 2007 enlargements. The addition of 12, not always homogeneous, constitutional identities seems in fact to mean that the ECJ's exclusive reference to the concept of common constitutional traditions is becoming progressively less suitable, especially if it is considered, with particular emphasis on CEE Member States that: ‘After the fall of communism, national identity (often perceived in an ethnic rather than civic fashion) has been either the only or the most powerful social factor, other than those identified with social foundations of the ancien regime, capable of injecting a necessary degree of coherence into society and of countervailing the anomie of a disintegrated, decentralised and demoralised society.’97 The situation is even more complicated because, within the CEE, there exist more identities asking for recognition: the majority one and the many minorities.98
Bearing these considerations in mind, the key question may be: how is the ECJ responding to the change, in a pluralistic identity-based direction, of the dynamic nature of constitutional tolerance?99 It has been argued that, before the enlargement, the ECJ, in order to foster constitutional tolerance by Member States, applied a two-level argumentative strategy: the first-level approach addressed national legislative and executive bodies, and the second, the national courts.100 Briefly, it appears that, with regard to that first aspect, the ECJ seems to have understood the extent of the change in the relationship between the European dimension and the Member States’ constitutional dimensions after 2004. As to the second, however, there is still a long way to go, even if certain steps in the right direction have already been taken. The next section of the paper is dedicated to the attempt to find some empirical support for these assumptions.
The (CEE) Member States’ political bodies as ECJ interlocutors
It has been argued101 that, in order to prevent potential ‘sovereignist’ reactions by Member States, and namely in order to enhance this miraculous ‘voluntary obedience’, in the last few decades the ECJ has resorted to applying the ‘majoritarian activist approach’.102 According to this approach, among the various solutions to a case, the European judges may opt for the final ruling most likely to meet the highest degree of consensus in the majority of Member States.103 The European judges seem to have understood that if such an approach had been partially104 able to convince Germans and Italians when they had been ‘invited’ to obey the European discipline in the name of the peoples of Europe, the same ‘invitation’ would have proven much less successful when applied to Estonians or Hungarians.
The post-2004 era has called, then, for a new ad hoc judicial strategy to combine with the pre-2004 majoritarian activist approach. After all, what new Member States need to be reassured about seems to be that even if, with regard to those national values relating to a peculiar constitutional identity to protect, they found themselves in a minority or isolated position, the European judges would not sacrifice them on the altar of the majoritarian-activist approach. It does not seem a coincidence, indeed, that some months after the 2004 enlargement, the ECJ stated, against an exclusively majoritarian logic, for the very first time, that ‘it is not indispensable in that respect for the restrictive measure issued by the authorities of a Member State to correspond to a conception shared by all Member States as regards the precise way in which the fundamental right or legitimate interest in question is to be protected’.105
The factual background of the Omega decision mentioned above is too well known to come back to it now. It is enough here to recall that the question was whether the aim of protecting a constitutional right, in this case the right of human dignity, representing a top priority issue, especially for one Member State (in this case, Germany), could possibly justify a restriction of freedom of services, a fundamental freedom but also fundamental right of the European economic constitution. The outcome of the decision is even more famous: ‘Community law does not preclude an economic activity consisting of the commercial exploitation of games simulating acts of homicide from being made subject to a national prohibition measure adopted on grounds of protecting public policy by reason of the fact that that activity is an affront to human dignity.’106 What seems instead to have been undervalued in several commentaries on the case is the circumstance that the European judges, in order to acknowledge the protection of the single Member State's constitutional values, had to manipulate their previous judgment, which clearly reflected the then prevailing approach of the majoritarian (if not unanimous) logic at the heart of the justification grounds for the restriction of fundamental freedoms.107 The ECJ was then able to give an authentic (manipulated) interpretation of its precedent explaining how:
In other words, there emerges a shift in the judicial reasoning of the ECJ, from a pre-accession majoritarian activist approach to a post-accession reference to the required protection, at least in the most sensitive cases, of the fundamental rights peculiar even to a single Member State's constitutional identity. Upon closer inspection, the attention to national values, far from being a post-2004 accession novelty, has always been a main feature of the ECJ case law related to the achievement of a European single market. This is, in particular, with regard to consumer protection and the preservation of public order as legitimate national justification for the hindrance to fundamental freedoms, especially freedom of establishment and freedom to provide services. It is enough to consider the case law related to gambling where, since 1994,109 the Court has admitted that moral, religious and cultural factors, and the morally and financially harmful consequences for individuals and societies associated with gambling, could serve to justify the existence, in the hands of the national authorities, of an appreciation margin sufficient to enable them to determine what kind of consumer protection and public order preservation they should apply. The innovative element of the post-accession phase, connected mainly with the need to provide a reassurance argument for the strong, identity-based demand of recognition coming from the new CEE Member States, is instead the willingness of the ECJ to take a step back if the protection of a national constitutional right is at stake. If it is true, as it has been objected110 that: ‘the phase of justification before the ECJ is a phase in which the Court strikes a balance between competing values of the Member States and the economic values of the Union and makes the final determination’, the added value of the relevant post-accession case law111 is that fundamental rights become a legitimate justified obstacle to the further enhancement of the European economic constitution even if that ground of justification is not at all enshrined in the founding treaties.
Although, in paragraph 60 of Schindler the Court referred to moral, religious or cultural considerations which lead all Member States to make the organisation of lotteries and other games with money subject to restrictions, it was not its intention, by mentioning that common conception, to formulate a general criterion for assessing the proportionality of any national measure which restricts the exercise of an economic activity.108
The same vision, even more clearly expressed, was confirmed recently in a judgment of 14 February 2008,112 which so far has gone strangely unnoticed. The dispute in the main proceedings concerned the importation by a German company of Japanese cartoons called ‘Animés’ in DVD or video cassette format from the UK to Germany. The cartoons were examined before importation by the British Board of Film Classification (BBFC), which checked the audience targeted by the image storage media by applying the provisions relating to the protection of young persons in force in the UK and classified them in the category ‘suitable only for 15 years and over’. The image storage media bear a BBFC label stating that they may be viewed only by persons aged 15 years or older. Dynamic Medien, a competitor of Avides Media, brought proceedings for interim relief before the Landgericht (Regional Court) of Koblenz (Germany) with a view to prohibiting Avides Media from selling such image storage media by mail order. Dynamic Medien submitted that the legislation on the protection of young persons prohibits the sale by mail order of image storage media which have not been examined in Germany in accordance with that law, and which do not bear an age-limit label corresponding to a classification decision from a German higher regional authority or a national self-regulation body (‘competent authority’). By a decision of 8 June 2004, the Koblenz Landgericht held that mail-order sales of image storage media bearing an age-limit label from the BBFC alone was contrary to the provisions of the law on the protection of young persons and constituted anti-competitive conduct. On 21 December 2004, the Oberlandesgericht (Higher Regional Court) of Koblenz, ruling in an application for interim relief, confirmed that decision. The Koblenz Landgericht, called to rule on the merits of the dispute and unsure whether the prohibition provided for by the law on the protection of young persons complied with the provisions of Article 28 EC, decided to stay the proceedings and refer to the ECJ for a preliminary ruling. The German court asked the ECJ whether the principle of free movement of goods laid down in Article 28 EC precludes the German law prohibiting the sale by mail order of DVDs and videos that are not labelled as having been vetted by the German authorities as to their suitability for young people. It also asked whether the German prohibition could be justified under Article 30 EC. The ECJ held, in the first place, that the German rules constitute a measure having equivalent effect to quantitative restrictions within the meaning of Article 28 EC, which in principle is incompatible with the obligations arising from that Article unless it can be objectively justified. The Court then considered whether the German measures could be justified as being necessary to protect young people, being an objective linked to public morality and public policy, which are recognised as grounds for justification in Article 30 EC. The Court held that the German measures were so justified, and stated in particular:
… that it is not indispensable that restrictive measures laid down by the authorities of a Member State to protect the rights of the child, correspond to a conception shared by all Member States as regards the level of protection and the detailed rules relating to it (see, by analogy, Omega, paragraph 37). As that conception may vary from one Member State to another on the basis of, inter alia, moral or cultural views, Member States must be recognised as having a definite margin of discretion.113
Despite the reference to the analogy of the Omega case, in Dynamic Medien the ECJ seems have gone further with the appraisal of the national constitutional values of the particular Member State, in the direction of indirect reassurance towards the new Member States. The case presents a twofold innovation. First, by making express reference to different levels of the protection of fundamental rights within Member States (rather than way of protection as in Omega), and by acknowledging for the first time a definite discretion margin to the individual Member State, the ECJ has achieved a double objective. On the one hand, the Court refused to follow the highest standard-based concept of fundamental human rights114 whilst, on the other, it has explicitly confirmed its willingness to adhere to the substantive nature of the fundamental rights. In Alexy's words,115 they are substantively fundamental because they enshrine the basic normative structures of state and society.116 It would be difficult not to catch the link between, on the one hand, the Court's step back, facing the fundamental boundaries117 of basic value-oriented choices of the Member States, in its obsessive enhancement of European law uniformity and, on the other, the aim to reassure (also) CEE States that their constitutional identity will not be sacrificed in the name of the achievement of the European economic values.
Secondly, the reference to the European Charter of Fundamental Rights is also very innovative in this regard. Departing from other cases where the ECJ has made explicit reference to the Charter,118 here the mentioned reference is the sole means to assert European primary law protection of the fundamental right in question.119 In the author's view it is not a coincidence that, in light of this judicial strategy of reassurance being put in place, the ECJ started to make express reference in its reasoning, after years of indifference, to the Charter, almost immediately after the accession of the CEE Member States. As it has been astutely argued: ‘There is a high degree of congruence between the structure of constitutional rights in the post-communist countries of central and eastern Europe and the structure of the rights as displayed in the EU Charter.’120
In light of the scenario that the previous pages have tried to delineate, it is perhaps possible to advance further in the attempt to systematise the reactions to the enlargement that have characterised the judicial approach of the ECJ. The ECJ seems in fact increasingly committed to work on a self-restriction of the EC primacy principle121 when it comes to the protection of identity-based constitutional dimensions of one or more Member States. A precise strategy of the ECJ, whose aim seems, in line with the Solange approach, to prevent further positions (also) of the CEE courts by somehow ‘internalising’, as we have seen in Omega and Dynamic Medien, the ‘controlimiti’ (counterlimits) doctrine in its case law.
In other words, the ‘evolutionary nature of the doctrine of supremacy’122 seems to have undergone another transfiguration phase after the 2004 enlargement, from an uncompromising version123 to a compromising one. It is not a coincidence that the Treaty establishing the European Constitution of 2004 provided, immediately prior to the EC primacy principle codification, at I-6, the following complementary principle:
Moreover, it does not appear to be coincidence either that in the ‘substantial reincarnation’ of the Treaty establishing a Constitution for Europe, whereas the Lisbon Treaty entered in force on 1 December of 2009, notwithstanding the lack of an express codification of the principle of primacy of EC law, the principle enshrined in Article 1-5 of the Treaty establishing the European Constitution has been textually provided by Article 4.2 of the Treaty on European Union, as amended by the Treaty of Lisbon. In a different context, Mattias Kumm has stated that the primacy principle's new ‘season’ following the 2004 enlargement, with a view to the new Treaty of Lisbon, requires that: ‘When EU law conflicts with clear and specific national constitutional norms that reflect a national commitment to a constitutional essential, concerns related to democratic legitimacy override considerations relating to the uniform and effective enforcement of EU law.’124 In other words: ‘Guarantee of the constitutional identities of Member States in the constitutional Treaty should be interpreted by the ECJ to authorise national Courts to set aside EU law on certain limited grounds that derive from the national constitutions.’125
The Union shall respect the equality of the Member States before the constitution as well their national identity, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect the entire state functions, including the territorial integrity of the state, maintaining law and order and safeguarding national security.
If this impression is to be confirmed in the future, the ECJ would have found, thanks to the new parameter provided by Article 4.2 of the Lisbon Treaty, the appropriate judicial mechanism to prevent the occurrence of the most frequent constitutional conflict between the EC and national levels – the dualistic tension between the irresistible, overriding vocation of the ECJ's Simmenthal mandate and the equally monolithic national constitutional mandate to preserve the core of fundamental domestic values from EC ‘invasion’.
As a matter of example, an EU norm, which would take precedence over a Member State's constitutional provision which asserts its constitutional identity, would clash, in fact, with EU law itself, and with Article 4.2 of the Lisbon Treaty, which requires, as we have seen, that EU Law respects the national identity of the Member States. Consequently, in the case of such a conflict, the hypothesis of annulment of a piece of EC law by the Member States’ constitutional courts would appear even less realistic. The intervention of constitutional courts in this case would in fact be prevented by the annulment of the piece of EU legislation by the ECJ itself because of its contrast with an EU Treaty provision.126
The (CEE) national judicatures as ECJ interlocutors
The previous sections have pointed out the changes that, following the 2004 and 2007 enlargements, have characterised the new approaches of the European judicature towards Member States’ political powers. It now remains to consider whether anything has changed – or still needs to be changed – at the European judicial level with regard to the relationship between the European legal order and Member States’ judicial bodies, with particular reference to the CEE judicatures. In this regard, a distinction has to be made between constitutional courts and the ordinary judges in CEE Member States. The former, as indicated above, seem well prepared to play a leading role in the new season of European cooperative constitutionalism through a creative and often activist approach. Further, as third-generation constitutional courts,127 they are characterised by being born into the global constitutional movement, which favours the interaction between legal regimes, but the same does not apply to the ordinary courts. It has been rightly observed, in fact, that the judiciary in CEE countries is still enslaved by textual positivism.128 In other words, the CEE ordinary judges still maintain a rather formalistic approach, almost mechanical and deferent to the national legislature, not enthusiastic about the new chances of judicial communication offered by EU law and, in particular, by its preliminary ruling procedure, almost allergic to creativity as well as judicial activism and far from any intent to participate in a transnational discourse. This is not exactly the best start to building a virtuous process of mutual assistance between the legal constitutional dimension and the European one.
Against this background, my assumption is that the ECJ has already put forward actions aimed at urging CEE ordinary courts to cooperate, but that a lot still remains to be done, especially with regard to judicial style, in order to improve the virtuous cycle of reciprocal influence between the European and the national courts, including constitutional courts. With regard to achievements, we refer to the need, strongly felt in the pre-accession period, for a rule that CEE national judges might have perceived as an incentive not to disregard the correct domestic application of EU law. The solution was found, one year before the major 2004 enlargement, in the Kobler case,129 where the ECJ extended the case law in Francovich130 and Brasserie131 related to State liability in the case of actions taken in breach of the national obligations stemming from EU law to the judiciary of the Member States. In other words, the ordinary courts of the new Member States, at the moment of their entrance in the European judicial arena, have been welcomed by the updating of the ECJ's doctrine of Member State liability, which now enables an individual to bring suit for damages on a claim that a prior decision of a Member State's court violated EU law.132 It is difficult to deny that the decision's effect (or at least intention) was to motivate (also) CEE Member States’ courts, which will have an obvious incentive for making referrals concerning doubtful questions of EU law to the ECJ in an attempt to avoid any possible subsequent liability.
This is what we should also read between the lines of the ECJ's decision of December 2003, where the Court found the infraction procedure brought by the Commission against Italy as legitimate, due, inter alia, to the persisting practice of the Italian Corte di Cassazione in breach of Community law.133 As has been noted,134 the possibility of infringement proceedings against the judicial misapplication of EU law has been regarded with suspicion by the ECJ and excluded by mainstream scholarship:135 ‘by the argument the co-operation and the trust between the Court of Justice and national Courts would have been disrupted. We may see this infringement procedure as a warning to national Courts in the new Member States to take Community law seriously.’136
If the abovementioned decisions represent the result of the substantive efforts of the ECJ to adapt its judicial attitude to the new post-enlargement era, what seems to remain inappropriate is the ECJ's language towards the new judicial interlocutors.
Especially on the strength of what still seems to characterise the CEE ordinary judicatures, the actual judicial style and argumentative structure of the ECJ's legal reasoning do not appear fully adequate.
As Mauro Cappelletti perceptively wrote: ‘Unlike the American Supreme Court and the European Constitutional Courts, the ECJ has almost no powers that are not ultimately derived from its own prestige, [and the] intellectual and moral force of its opinions.’137 With special regard to Member States’ judicial interlocutors, the main factors at the heart of the ECJ's legitimacy still remain the clearness of the legal reasoning of its judgments138 and the persuasive force of its arguments. This attitude strongly characterised the early years of the ECJ's case law, when the European judges applied to their legal reasoning, by way of a didactic methodology, ‘a judicial style which explains as it declares the law’.139 This is particularly true with specific reference to the procedure of Article 234 EC. It was not easy for the ECJ to induce national judges to feel confident about such a new and sophisticated judicial conversation tool, but during years of ‘courteous pedagogy’140 they managed to persuade them.141
Apparently, over the years, the ECJ's judicial style has progressively lost its original didactic and pedagogic character. The reasons seem easily identifiable: on the one hand, the national courts of first-generation Member States soon learnt to ‘digest’ the impact of EC law's novelty over time, thus gradually losing the didactic and pedagogic needs. On the other hand, the growing case load combined with the difficulty of finding at the same time a compromised, convincing and persuasive position in an enlarged ECJ has become an increasingly difficult task for the European judges. However, now, with 12 new eastern European national judicatures that ‘will have the time to learn more than the mere basics of Community Law’,142 the ECJ again needs to find a judicial style which explains, as well as states, the law and the persuasive strength of its arguments, which it somehow lost. A good example of this evolution of ECJ's judicial style is, in line with our research focus, the awaited decision of the ECJ regarding the EAW.143
Owing as well to the wealth of interest aroused by the German, Polish and Czech Constitutional Courts’ decisions, there was a long wait for the ECJ's decision, which had been requested under Article 35 EU by the Belgian Cour d'Arbitrage, on the validity of Framework Decision 2002/584/JHA. As Advocate General Dámaso Ruiz-Jarabo Colomer stressed in his conclusions,144 the referring Belgian court expressed doubts about the Framework Decision's compatibility with the EU Treaty on both procedural and substantive grounds. The first of these questions related to the legal basis of the European Council's decision. In particular, the referring court was unsure that the Framework Decision was the appropriate instrument, holding that it should be annulled because the EAW should have been implemented, instead, through a convention provided by Article 34 (2)(d) TEU. In this case, in fact, according to the Belgian court, it would have gone beyond the limits of Article 34 (2)(b) TEU, pursuant to which Framework Decisions are to be adopted only for the purpose of approximation of the laws and regulations of the Member States. Secondly, the Belgian court asked whether the innovations brought by the Framework Decision regarding the EAW, even when the facts in question do not constitute an offence under the law of the executing State, were compatible with the equality and legality principles in criminal proceedings in their role as a general principle of EU law as enshrined in Article 6 (2) EU.
More specifically, the alleged infringement of the principle of equality would have been due to the unjustified dispensation, within the list of 32 offences laid down in the Framework Decision, with the double criminality requirement, which is held instead for other crimes. Conversely, the principle of legality would have been breached owing to the Framework Decision's lack of clarity and accuracy in the classification of the offences. It was opinion of the Belgian court, in fact, that should Member States have to decide whether to execute an EAW, they would not be in the position to know whether the acts for which the requested person is being prosecuted, and for which a conviction has been handed down, actually fall within one of the categories outlined in the Framework Decision.
The Advocate General, in his conclusions, had no doubts about the high relevance of the preliminary request which should have been included, also in the light of the German, Polish, Cypriot and Czech rulings:
At first reading this leads to much disappointment. The second reading does not really give a different impression. It was opined, indeed, that the ECJ had failed to engage fully in undertaking the role of ‘protagonist’ assigned to it by the Advocate General and, more harshly, that ‘the Court's decision may serve as an example of how judicial discourse should not be conducted, particularly when the issues at the stake involve decisions of national Constitutional Courts’.146 The ECJ refused to declare the EAW invalid and, consequently, to reset the balance carried out by the Council through the adoption of the Framework Decision between the exigency of enhancing the cooperation in criminal matters and to respect the constitutional values of the Member States.
… in a far-reaching debate concerning the risk of incompatibility between the Constitutions of the Member States and European Union law. The ECJ must participate in that debate by embracing the prominent role assigned to it, with a view to situating the interpretation of the values and principles which form the foundation of the Community legal system within parameters comparable to the ones which prevail in national systems.145
There are few doubts that the ECJ steered clear of protagonist leading roles, but given the inter-legal orders’ constitutional tension preceding the judgment, it could have been the right option that one followed if it would not have achieved that output through a succinct, not persuasive, cryptic and in some parts even apodictic reasoning in which the comparative argument it is an unjustified omission.
The ECJ settled the dispute over the appropriateness of the Framework Decision as a legal instrument to govern the EAW, stating that EU Treaty provisions may not be interpreted as granting the sole adoption of Framework Decisions falling within the scope of Article 31 (1)(e) TEU.147 It is true, the Court held, that the EAW could have been governed by a convention as per Article 34 (2)(d) TEU, but, at the same time, it stated that the Council enjoys discretion to decide upon the appropriate legal instrument, where, as in this case, the conditions governing the adoption of such a measure are satisfied. The carte blanche, without further explanation, given to the Council in the choice of the appropriate legal basis to pursue the sensitive goal of enhancing the cooperation of the Member States in criminal matters does not seem the best strategic move in order to reassure the CEE national Parliaments and judges about the EU's commitment to the principle of legal certainty, so important in the constitutional structures of the post-communist legal orders. However, the more unsatisfactory and cryptic part of the reasoning is that related to contesting the alleged breach of fundamental rights by the EAW Framework Decision.
With regard to the alleged violation of the principle of legality, the ECJ operates an artificial translation of the field of the game from the European level to the national level, arguing that Article 2 of the Framework Decision, which abolishes the requirement of double criminality from the list of 32 offences, does not itself harmonise the criminal offences in question, in respect of their constituent elements or penalties to be attached:
This is a clever but risky means of sending back ‘the hot (constitutional) potato’ to the national courts. It is clever because the fundamental issue of the respect by European legislation of the fundamental principle of legality of the criminal offences and penalties suddenly becomes, and almost magically so, a matter determined by the law of the issuing Member State, which must respect fundamental rights and fundamental legal principles as enshrined in Article 6 TEU (para. 53).149 It is risky because this ECJ judicial attitude of ‘washing one's hands of the problem’, without further explanation, does not exactly seem to be the right approach to foster the confidence of the national (especially of central and eastern European) courts, so essential in the enhancement of the European area of freedom, security and justice, in the fundamental rights commitment of the EU.
Consequently, even if the Member States reproduce word-for-word the list of the categories of offences set out in Article 2(2) of the Framework Decision for the purposes of its implementation, the actual definition of those offences and the penalties applicable are those which follow from the law of the issuing Member State. The Framework Decision does not seek to harmonise the criminal offences in question in respect of their constituent elements or of the penalties which they attract.148 (para. 52)
In response to the third argument concerning the alleged violation to the principles of equality and non-discrimination of the EAW, owing to the unjustified differentiation between the offences listed under Article 2 (2) providing for the abolition of the double criminality requirement, on one hand, and all the other crimes where surrender is conditional on the executing Member State's recognition of the criminal liability on which the EAW is based, on the other, the ECJ has played, in just one passage, that protagonist role the Advocate General referred to in his conclusions. Such a ‘judicial activism regurgitation’, in the absence of a proper argumentative and persuasive basis and, in the light of the heavy inter-constitutional perturbation which anticipated the ECJ ruling, makes the interaction between the European dimension and the constitutional one on this delicate issue even more problematic. The ECJ, in fact, in an attempt to justify the rationale behind the abovementioned differentiation, made an express reference to the mutual trust between Member States as an indispensable tenet at the heart of any third pillar action – an argument openly questioned, as noted above, by the German Federal Constitutional Court – thus stating that according to the classification as per Article 2 (2):
In other words, the different treatment of persons suspected of having committed offences featured in the list set out in Article 2 (2) of the Framework Decision and those suspected of having committed offences other than those listed is justified, according to the apodictic, cryptic and unpersuasive reasoning of the ECJ, by a presumption of the existence of mutual trust in the Member States for the guarantees provided by their respective criminal law. Furthermore, the said presumption was heavily contested less than 2 years earlier by the most prestigious constitutional court in Europe, the Federal Constitutional Court of Germany. There was not a single word, instead, which could have been read as an answer to the constitutional objections raised in relation to the EAW by many constitutional courts in Europe. As has been correctly argued, ‘the ECJ's sparse reasoning in the decision contrasts with the firm and outspoken approach of the national Constitutional Courts’.150
The Council was able to form the view, on the basis of the principle of mutual recognition and in the light of the high degree of trust and solidarity between the Member States, that, whether by reason of their inherent nature or by reason of the punishment incurred of a maximum of at least three years, the categories of offences in question feature among those the seriousness of which in terms of adversely affecting public order and public safety justifies dispensing with the verification of double criminality. (para. 57) (emphasis added)
The lack of persuasive strength in the reasoning and the lost talent for the original pedagogical intent are not the only facets of the ECJ's current style that hinder, in the current post-enlargement times, the communication between the European level and the domestic constitutional level. The EAW decision could in fact represent a (bad) model for speculation on the ECJ's need eventually to expand its legal reasoning equipment to include a method until now too dangerously ignored: the comparative one. It is well known that the ECJ has always been sparing in direct reference to Member States’151 comparative law, leaving this ‘delicate business’ to the Advocate General's conclusions.
Two reasons seem to support this choice. First, in the early years, the ECJ devoted all its argumentative efforts to stressing the peculiar features of the ‘new legal order’, distinguishing Community law from national and international law. The absence of reference to comparative law in the ECJ's reasoning would be instrumental to that aim. Secondly, with the further enlargements and the risk of emphasising the reference to certain legal orders to the detriment of others, the ECJ very quickly understood that the strategic reference to the ‘common constitutional traditions’ formula as a source of inspiration for European judges could have served to legitimise the European integration process in a more diplomatic way in the Member States’ eyes.
Now the question is whether, after the latest enlargements to the east of 2004 and 2007, the time has come for the ECJ to take seriously the comparative law argument in its legal reasoning. In the past, it has been possible to justify the exclusive reference to the common constitutional traditions under the ‘majoritarian activist approach’ judicial strategy. Conversely, today, also in order to ensure a correspondence between the judicial argumentation level and the content-based level, in the light, on one hand, of the new value-based season increasingly committed to taking into consideration the single Member State's constitutional identity and, on the other, of the ever-more heterogeneous national constitutional humus, the exclusive reference to the common constitutional tradition has seemingly become unsuitable. On the contrary, a more audacious recourse to the explicit comparative reference to Member States’ law would serve a twofold purpose: to enhance the judicial acceptance of the European legislation within the CEE Member States, thus providing a role model for national courts,152 as well as to fit the growing tendency towards an effective interaction between the European legal order and the national ones, the file rouge of the present paper.
As it has been highlighted in the Introduction and in the light of the research questions above identified, three are the main aims of the concluding remarks.
First, they will highlight which models of conflicting settlement have emerged from the analysis. Secondly, they will focus on the tendency to a progressive approaching between the domestic impact of ECHR law and EU law after the enlargement of the EU. Thirdly, they will deal with the idea of judicial dialogue, in an attempt to concretise such a concept, which is often used in too general terms.
Starting with the first final remark, and with specific reference to the case law related to the EAW saga, the relevant question is which models of settlement of conflict between legal systems emerge that are able to prevent the risk of constitutional conflicts. In an attempt to provide a conceptual conclusive framework of the different approaches of the German, Polish and Czech constitutional judges, the three decisions appear to be the expressions of the respective courts’ different ways of tackling the delicate issue of the relationship between EU law and Member States’ constitutional legal systems. With the ruling on the EAW, the German Federal Constitutional Court proved that it advocates a certain ‘democratic statism’, as defined by Mattias Kumm. This is, to express it more clearly, ‘a normative conception of a political order establishing a link between three concepts: statehood, sovereignty and democratic self-government’.153 Statehood and sovereignty154 constitute, indeed, the leitmotif of the entire argument underlying the German judgment.
A decision based on such cornerstones could not but lead to the annulment of the national implementation of the EAW Framework Decision, as well as, more generally, as has emerged from the analysis of the decision, to the refusal of any idea to ‘communitise’ the European area which more then others reflects national statehood and sovereignty: the cooperation in criminal matters entailed by the EU's third pillar. In such a state-oriented view of the European integration process, the constitution represents the supreme Grundnorm conferring validity on any other, internal or external, source of law, including European law, namely through the Solange jurisprudence's codification of Article 23 of the German Constitution.155 The focus on the concept of Staatvolk, giving rise to objective ethnic factors156 as legitimate grounds for the Constitution's supremacy has, needless to say, further repercussions, beyond the relationship between Germany and the EU, on a horizontal dimension which connects the EU Member States. The most evident of these repercussions is the sense of poorly hidden distrust, which permeates the entire judgment, of the other European legal systems’ ability to secure an adequate level of protection of human rights. The sole guarantee left to the German citizen is the certainty of being, as far as possible, prosecuted, judged and eventually convicted by a domestic German court.
On the opposite side, upon closer scrutiny the Polish Constitutional Tribunal did exactly what the most extremist ‘pro-European activist’ would ask for in the case of an irreconcilable conflict between the Constitution and EU law. Does the Framework Decision clash with the constitutional norm of a Member State? Fine, we thus suggest amendment of the Constitution and, meanwhile, the annulled provision remains temporarily in force.
It is not by chance that a Polish scholar has observed how the request to the legislature to review the Constitution and the temporal limitation of the effects of the decision proves that:
Upon closer analysis, the two approaches considered herein (the German and Polish ones), while so different in their identification of what is the supreme source of legal reference (in the former, the national Constitution, in the latter, EU law), have something in common – the fact that both of them focus on identifying a supreme source of law. In other words, in both decisions, the game is played out on the field of the sources-of-law-based theory delimited by the identification of hierarchical, predetermined and unassailable relations among the norms involved.
The Constitutional Tribunal in fact recognized the supremacy of EU law…. It thus accepted that the Constitution itself was no longer an absolute framework for control, if it hinders the correct implementation of EU law, it should be changed… . It seemed that in this judgment the Tribunal went further than the existing practice, it implicitly accepted the supremacy of EU law over constitutional norms.157
Correspondingly, such an idea of the relationship between EC law and national constitutional law is neither flexible nor open to comparisons. It is not flexible because it is determined by a clear-cut, ‘once and for all’ definition of these relations, which does not permit derogations and forces upon the judicial interpreter the solution for the relevant conflict settlement. It is not open to comparisons because of the tendency to resolve conflicts by referring solely to the domestic constitutional landscape. In this respect, it is worth noting how both the Polish and German judgments: (1) did not recall relevant ECJ jurisprudence; (2) did not refer to decisions adopted by other European Constitutional Courts attempting to resolve similar conflicts; and (3) never considered the possibility of a dialogue with the ECJ through a preliminary reference.158
Conversely, the three elements do converge in the Czech decision and represent specific and concurring clues to demonstrate that the Czech Constitutional Court opted to play the game of conflict settlement between domestic and EU law in a field characterised by an interpretation-based theory,159 rather than a sources-of-law hierarchically based theory, as it seems has been favoured by their colleagues in Karlsruhe and Warsaw. The field chosen by the Czech Constitutional Court is characterised, instead, from a substantive point of view, by the acceptance of the idea of constitutional pluralism as the paramount parameter for the settlement of constitutional conflicts, while, as to methodology and procedure, by a dialogic and communicative theory of inter-constitutional law is applied.
First, from a substantive point of view, the Czech Constitutional Court, although never fully giving up focusing its reasoning on the classical concepts of sovereignty, limited transfer to the supranational system and the application of the ‘controlimiti’ doctrine. The court attempted to convey on an axiological basis, and without any vision of hierarchy between interacting legal systems, the ultimate rationale behind the EAW-implementing national law, on the one hand, and the constitutionally protected values, on the other. To sum up, the Czech judges found that the fact that the Framework Decision does not always apply the double criminality requirement does not infringe the constitutional principle of legality in criminal law, as the absence of the latter rule does not affect the principle ‘with regard to the Member States of the EU, which have a sufficient level of values convergence and mutual confidence that they are all states having democratic regimes which adhere to the rule of law and are bound by the application to observe this principle’.160
The process of ascertaining conformity of national rules implementing EU norms to the constitution is not carried out through a strict application of the unassailable rule of EU law primacy over the whole domestic law, nor by assuming unconditioned supremacy of the constitution over any other source of law, but rather with the objective of identifying the best solution to fulfil ‘the ideals underlying legal practice in the European Union and its Member States’.161
With regard to the second, methodology-based, aspect, the Czech Constitutional Court fits its reasoning within a much broader normative framework than a literal interpretation of relevant constitutional parameters would have allowed. Through certain verbatim quotes of European and comparative constitutional jurisprudence, far from giving evidence of ‘constitutional arrogance’, the Czech court has shown a willingness to be part of the project of cooperativeconstitutionalism, which seems to represent one way of avoiding constitutional conflicts between the European order and Member States’ constitutional systems. Certainly, it is not the easiest road to take, but it is most likely the only one having a chance to strike the right balance between different but interconnected legal systems, and to find consequently a ‘harmony in diversity’.162
A second consideration relates to the fact that, in the framework of the relationship between interacting legal systems, a growing distance is emerging between the (low) degree of openness towards EU law in the CEE Constitutions and the more generous tendency to accept the mechanisms of European law into domestic law which central and eastern European Constitutional Courts are currently showing.
In an attempt to be less obscure, let us apply this consideration to the EAW saga. Upon an initial, ‘static’ reading of the relevant constitutional norms, it has frequently been pointed out in the paper how an ex ante evaluation of the EAW Framework Decision provisions, as regards the binding obligation on the executing State, except for the cases strictly provided for, to surrender a national to the requesting Member State appeared more in line with the German Basic Law regulating extradition, than it appeared to be capable of complying with the corresponding provision of the Czech Fundamental Rights Charter.
More generally, while always maintaining the relevant constitutional norm's perspective, it is evident that the ‘sovereignist’ nature of the CEE national Constitutions, and specifically the Polish and Czech ones, left little room for their Constitutional Courts’ pro-European ‘enthusiasm’, when compared with the flexibility theoretically allowed the German Constitutional Court under the Basic Law's relevant provisions, which was never noted for having a marked ‘sovereignty-focused’ character (also in light of the historical context in which it took shape). Moreover, one should bear in mind that the ‘European clause’, introduced at Article 23 of the Basic Law upon the ratification of the Maastricht Treaty in 1993, further acquired the already-existing predisposition of the German Constitution to be influenced by EU and international law.
Notwithstanding the advantage of the German legal system as to the interpretation of the relevant constitutional parameters compared with the CEE legal systems, and especially the Polish and Czech ones, the ‘leap’ of the Warsaw and Brno Constitutional Courts obtained two important and unexpected results. First, it cancelled out the said advantage of the German relevant constitutional parameter; secondly, it enabled Polish and Czech constitutional jurisprudence, despite a constitutional parameter which it was rowing against, to accept the penetration of European law into domestic legal systems to a much greater extent than the German Federal Constitutional Court proved with its decision.
In other words, this new season of European constitutionalism seems to be marked by a sense of ‘exploration’ in terms of new argumentative techniques and original judicial interaction between national and European courts, which follows novel ‘off-piste’ routes from those outlined by the interpretative routes suggested by applicable constitutional parameters. To simplify even more, what is emerging seems to be a constantly growing bifurcation between the static reading of the constitutional clauses in the interconnecting legal systems and their dynamic judicial interpretation by constitutional courts.
The second conclusive remark focuses instead on the attempt to answer to one of the main research questions identified at the beginning of the paper. Is the distance between the judicial impact of, respectively, EU law and ECHR law, now shorter than it was before the enlargement of Europe to the east between the Member States of the EU and the Council of Europe?
The answer, in the light of the analysis carried out, seems to be positive. When looking at the most recent years of supranational integration, it is in fact possible to appreciate a constant re-approaching between EU law and EHRC law, as a result of two main factors.
First, as we have seen at supranational level, the enlargements of the Council of Europe and of the EU caused two opposite reactions in the Strasbourg and Luxembourg Courts: the Strasbourg Court accelerated acting as a quasi-constitutional court while the ECJ drew back by referring to a ‘compromise’ version of primacy. This double process makes these two supranational courts more similar in respect of how they see their respective case laws affecting domestic legal orders.
Secondly, the trend observed at supranational level seems to find confirmation at the national level. It is in fact possible to identify a growing tendency of the national judges of the EU and ECHR Member States to deal with the EU and ECHR law in a similar way.
In countries like Sweden and Denmark the national judges gave a sort of ‘continuity’ when approaching EU and ECHR law: they preferred utilising those interpretive techniques (‘rule of presumption’, ‘rule of interpretation’, or ‘rule of instruction’) previously devised with regard to the possible contrast between EHRC and national law also for the contrast between EU and national law. In these constitutional experiences the consistent interpretation was chosen as the way to resolve the antinomies existing between national and both EHRC and EU laws.
To the contrary, in other countries, the ordinary domestic judges prefer to put aside the national law where it differs from EHRC law, granting then, also in this regard, the same judicial treatment to ECHR and EU law.163
Specific reference ought to be made to the Italian experience. In particular, some ordinary judges, in the new millennium, have started looking at the relationship between the ECHR and the national legal order in a surprising, if not revolutionary, way. The Tribunal of Genoa,164 followed by other courts of first instance and of appeal, in order to resolve a conflict between ordinary national laws and ECHR principles, started to put aside the national provisions. By doing this, it adopted the same solution applied since the adoption of the historic decision of the Constitutional Court in Granital in 1984:165 the ordinary judges applied the priority of EC law in cases of conflict between national law and EC law.
The latter approach, supported also by the highest ordinary and administrative courts,166 was essentially founded on the consideration that, due to the incorporation of the ECHR into the European dimension through the bridge provided by the general principles of EU law mentioned in Article 6 TEU, it seemed logical to provide EU and ECHR law with the same constitutional protection.
In other words, this brave new judicial approach interpreted the famous parag. 16 of the landmark decision of the ECJ in Simmenthal167 as applying also to ECHR law by analogy.
By looking at how the Italian Constitutional Court reacted the first time it had the opportunity to take the floor again in the debate,168 it is possible to imagine that it did not much enjoy the period of its enforced silence169 on the interpretation of the new Article 117, para. 1 of the Italian Constitution with regard to the relationship between national law and the ECHR.
Finally, another interesting analogy has to be stressed: looking at the German case law, we could appreciate the emergence of a particular counter-limits doctrine also with regard to the ECHR.170 In the light of the trends, identified at both supranational and national level, of the narrowing between the domestic impact of ECHR and EU law on the legal orders of the EU and ECHR Member States, it is then possible to speculate about the possible emersion of a Unitarian theory of the jurisprudential supranational law in its relationship with the national, specifically judicial powers.
One final remark is devoted to an attempt to clarify a stereotype which unavoidably appears every time the judicial globalisation discourse171 approaches the issue of the relationship between the European legal dimension and the national constitutional one.172
In order to avoid the mistake of one who, looking at a finger pointing to the moon, focuses on the finger and not on the moon, it should be noted that the notion of judicial dialogue173 is nothing but a signal which points out the presence of something else, often particularly problematic, behind it. It is then not a substantive goal in itself but rather a procedural tool to improve a status quo that is not completely satisfactory. In particular, what seems to emerge from the analysis undertaken in this paper is that, if there is something called European judicial dialogue, it very often occurs due to a (real or presumed) risk of constitutional collision174 between the domestic and European level, especially with regard to the standard of protection of fundamental rights. It may also occur due to the willingness of national constitutional courts to make clear, by referral to the ECJ, what appears unclear in relation to the interpretation of EC law rather than (more poetically but less realistically) to aspire to the courts belonging to different, but interacting, constitutional jurisdictions to build a judicial ‘Harmonia Caelestis’.175 Therefore, the involvement of the interconnecting entities (the Member States’ Constitutional Courts and the European Courts in Luxembourg and Strasbourg) in the European judicial dialogue is, generally, a reaction, and very rarely a spontaneous action, to either a situation of lack of legal clarity regarding the interpretation and the application in the domestic legal system of EU law or a collision (or to risk of it) between the European legal system and Member States’ constitutional systems.
If, however, the starting rationale behind the idea of judicial dialogue between national and European courts is of a reactive and to some extent defensive nature (search for clarity and the willingness to prevent a constitutional collision), it should finally be added that in the prosecution of the same conversation, this approach can achieve a further result, of a promotional and truly constitutional nature: the participation of the interconnecting unities in the judicial construction of a pluralistic European legal order. In this conceptual framework emerges the constitutive function of the courts in Europe: the possibility of creating ex post ‘rules of engagement’ between the Member States and the EU legal order in the absence (or the misapplication) of the ex ante fixed rules.