Judging European Democracy - National Constitutional Review of European Law and its Democratic Legitimacy
PhD student: Dr N.J. de Boer
Promotors: Mrs Prof D.M. Curtin, Prof L.F.M. Besselink, I. Venzke
Duration: 1/9/2012 - 31/12/2016
PhD defence: Amsterdam, 4/5/2018
A core issue of contemporary EU constitutional law concerns how the relation between the Member States constitutions and EU law should be construed. This issue plays out particularly in cases of so-called constitutional conflict, cases in which there is a conflict between a constitutional norm of the legal order of a Member State and that of the EU legal order. The issue that many constitutional law scholars have addressed is how such conflicts can be addressed in a way that is legitimate. Scholars advocating constitutional pluralism as a way to deal with such conflicts often see the judge as the main actor that is to decide on issues of constitutional conflict, and address how the judge is to decide these issues. This proposal argues that this almost exclusive focus on the judiciary has notable shortcomings, because it does not take sufficiently into account the institutional position of the judiciary viewed from the perspective of democratic legitimacy as well as the doctrine of a separation of powers between the judge and the legislature. This study essentially asks how such constitutional conflicts can be addressed in a way that sufficiently takes into account these concerns. To answer this question, this study consist of two main components. First, it develops a normative critique of the idea of constitutional pluralism as an internal normative point of view. By that internal normative point of view I understand constitutional pluralism as a theory to guide national judges in deciding on the proper relationship between the national and EU legal order. It is distinguished from constitutional pluralism as an external descriptive account, which holds that the constitutional reality of the EU cannot be understood in hierarchical terms, but that the EU legal system is better understood as a system in which there is interaction between the partially independent national and supranational legal orders. This study aims to offer an understanding of the challenges that the process of European integration poses to traditional concepts of democratic legitimacy, constitutionalism, the separation of powers between the judiciary and the legislature, and why constitutional pluralism as internal point of view is an unsatisfactory solution for these challenges. Secondly, on the basis of the normative critique this research asks how the decisions of national courts and the CJEU on the relationship between national constitutional orders and the EU legal order, can be made compatible with this normative ideal. This part has two interrelated components. It asks both what the normative ideal requires in terms of institutional design as well how judges can interpret the law so that it is in line with this ideal. This question is answered by offering a comparative analysis of multiple judicial decisions of national constitutional courts and the CJEU concerning this relationship and the way in which these decisions have structured and allowed for responses of national legislatures as well as the European Parliament. The goal is to enquire how national constitutional courts and the CJEU can adopt a role that is more compatible with the idea of democratic legitimacy, constitutionalism and the separation of powers between the judiciary and legislature, than that which constitutional pluralism offers.