Constitutional Courts and the Court of Justice, Constitutional Law and EU Law – Two Arranged Marriages and the Legal Problems Arising From Them

Abstract

This article addresses the question of relationship of constitutional courts to the Court of Justice in national case law; the hierarchy of these national courts to the Court of Justice of the European Union (EU); the hierarchy of national law (constitution) and EU law and the constitutional identity as a limit of the principle of supremacy. The innovative contribution of the present article is that it distinguishes between the effects of the principle of supremacy of EU law on national courts and on national legislators. It thus provides clear and precise guidance to national judges on how to proceed in contentious cases of conflict between national and EU law. This question is not satisfactorily answered in the case law of the Court of Justice. It is also avoided in articles and most textbooks dealing with the supremacy principle. This article also addresses the possibility of a comprehensive solution to the conflict between EU and national law in extreme, but politically extremely important and sensitive, divergences between the decisions of national constitutional courts and the Court of Justice. Contrary to conventional notions, which cognise such a divergence as a serious problem and tend to deny constitutional courts the possibility of making their own independent conclusions, the author of the present article sees this as a natural consequence of the position that these courts occupy in the legal systems of the Member States. In the last part of the article, the author presents several options that constitutional courts have and can use to deal with decisions based on EU law, ranging from full acceptance of this law to its complete rejection on the grounds that EU law does not fall within the frame of reference protected by constitutional law.