EU, constitutional authorities and identities
Panel formed with individual proposals.
While Michel Rosenfeld states that the concept of ‘constitutional identity‘ is ‘an essentially contested concept as there is no agreement over what it means or refers to‘, lately, there is a growing academic interest concerning the respect for constitutional identity as well as the so-called constitutional pluralism and judicial dialogue. Therefore, it is worth to detect the operationalisation of the concept of constitutional identity within the jurisprudence of the CJEU where it might be labeled as a safeguard or standard of legal federalism or as the model of constitutional dialogue aiming to mitigate the national constitutional concerns. In this regard, the enactment of the Lisbon Treaty represents a turning-point. The aim of my presentation is to detect the possible conclusions that could be drawn from the already existing jurisprudence of the CJEU concerning the interpretation of the identity clause, Article 4 (2) of the Treaty on European Union.
In recent years the homogeneity clause of Article 2 TEU has gained concretization of its scope and content due to enforcement of values vis-à-vis EU Member States violating the rule of law. Every instance of such enforcement must necessarily assume the presence of certain ‘epistemic minimum‘ shared by the conflicting constitutional authorities. Any conception of such a minimum however seems problematic or at least begging profound theoretical questions. At stake are the conditions of mutual inter-systemic cognition. The paper refers to the reinterpreted epistemically oriented versions of the constitutional pluralist theory. It is suggested that the ‘vertical‘ application of Article 2 does not invalidate questions about conflicts between competing constitutional orders. The paper‘s goal is then to explore the epistemic limitations of EU‘s values enforcement through the prism of assumptions and understandings of conflict which lie behind such supranational interventions.
This paper examines how law and political economy approaches can be applied to EU Constitutionalism with a view to reconciling the social and market aspects of the Union‘s constitutional identities. Analyses of EU constitutionalism which adopt a law and political economy approach are notable for their absence. Indeed it is only the work of Mueller which has substantively engaged with this theme and analysis in an article which predates the modern constitutional schema following the Lisbon Treaty and the entry into force of the Charter. Yet a law and political economy approach is both appropriate and necessary to understand how EU constitutionalism can reconcile its market and social components. Through applying the analysis to EU constitutionalism the paper argues that a new ‘constructivist constitutionalism‘ can be identified and may offer a path towards the construction of a more coherent constitutional identity for the Union
The paper examines how do the national constitutional order interact with the European constitutional system. Even though there is a vast literature on constitutional identity, it is approached from the perspective of judgments of the apex courts. However, little attention has been paid to the stances of individual judges and their conception of constitutional identity. Their individual opinions are reflected in the judgments, therefore, it is worth examining how do judges envision the relations between two systems, what kind of constitutional grammar they apply to understand systems. The analysis is conducted on the Polish example and examines public interventions made by judges when discussing the Accession and the Lisbon Treaty. This could be named as an exercise in constitutional judicial imaginary, as it displays how the judges talk about, conceptualize and relate to the EU legal order. This paper is part of a socio-legal PhD project on judicial constitutional identity in Poland.
Solidarity, as a legal principle, is a new and evolving concept, whose nature and functions in constitutional adjudication remain unclear. This article investigates whether solidarity between the Member States has the legal quality of a general principle, and if so, what its meaning is within the EU legal order. Based on an examination of Treaty provisions concerning solidarity between the Member States in different areas of EU law and the jurisprudence of the Court of Justice on solidarity, it concludes that solidarity between the Member States is, in fact, a general principle of EU law. However, the meaning ascribed to the principle in case law is inconsistent. The article argues that, in order to qualify as a general principle, solidarity must have a narrower meaning than proposed in particular by the General Court in a recent case on energy solidarity. It defines what solidarity involves if it is conceptualised as a general principle.