Inherent Risks of the Pluralist Structure: Use of the Concept of National Constitutional Identity By the Polish and Czech Constitutional Courts

Abstract:

The jurisprudence of the ECJ and national constitutional courts related to the national constitutional identities of the Members States fits into the framework of constitutional pluralism as a modus vivendi of the European legal order. This paper focuses in particular on the recent judgments of the Polish and Czech constitutional courts. One might perceive a general tendency in the process of EU integration for EU policies to be increasingly dominated by national agendas. As a result, EU policies might be held hostage by the interests of the stronger Member States. These tendencies increase the tensions inherent in the pluralist structure of the relationships between legal orders in the European arena. Constitutional identity is yet another concept used in this debate about ultimate authority. Pluralism assumes that the courts will compete over ultimate authority and will try to use such a concept ‘to their advantage’. With regard to article 4 (2) TEU, the ECJ seems to have more persuasive power than the Polish and the Czech constitutional courts. However, the jurisprudence is certainly not settled yet. The interweaving of national, European and international law creates the need to examine constitutional identity expressed inside and outside the EU. Pure heterarchy based on a balance of powers and protection of national constitutions as well as constitutional courts comes with the inherent risk of leading to the logic of ‘might is right’. On the other hand, even though one could identify cases where the judicial actors seem to miss an opportunity to improve the protection of individual rights or where they reveal a troubling eagerness to ensure their own authority, such risks are an idiosyncrasy of the system of constitutional pluralism. The theory of constitutional pluralism has the ambition of improving the quality of judgments and creating a framework for fruitful interaction of competing visions of Europe. Single judgments that may be open to criticism do not bring into question the viability of the whole framework, but it is nonetheless important to be aware of the systemic risks.