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Facts and Findings

Between dialogue and resistance The conflict on the final word in the European judicial order

by Narin Nosrati

An analysis of current developments and conflicts between national constitutional courts and the European Court of Justice (ECJ)

Who has the final say on the question of the supremacy of European law? This question is explored in the following article, which builds on a lecture given at the Berlin Legal Policy Conference in October 2022. It examines a number of decisions of national supreme courts in recent years and, in particular, sheds light on the role of the Federal Constitutional Court (Bundesverfassungsgericht, BVerfG).

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71 years ago, the ECJ was founded and thus laid a foundation stone for the European legal order. With fundamental decisions, it shaped the development of European law. At the same time, this raised questions about the relationship between national legal systems. Since then, not only legal scholars have been concerned with the question of the supremacy of legal orders and the courts' right of final decision. It is recognized that European law has primacy. What is disputed, however, is whether and to what extent exceptions exist. The national supreme courts of most Member States in particular reserve a right of review in certain matters. It is argued that the Constitution, which opens the national legal order to the European law, at the same time limits its effect.

This analysis examines various rulings by national supreme courts. It is clearly shown that the case law of the Federal Constitutional Court (BVerfG) has been selectively received and taken out of context in order to give more legitimacy to Euro-critical statements by Poland and Hungary.

But what can be done to resolve the conflict? For de-escalation and ultimately strengthening of the legal system, a solution-oriented dialogue between the courts is necessary. The dialogue should be strengthened by normative regulations. Conceivable measures include a reverse obligation to refer cases to supreme courts, the possibility for supreme courts to comment in ECJ proceedings, and the obligation to hear affected Union institutions in national proceedings.

Read the whole analysis: "Between Dialogue and Resistance – The Struggle for the Last Word in the European Court Structure" here as PDF

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© Konrad-Adenauer-Stiftung e.V.
October 27, 2022
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About this series

The series informs in a concentrated form about important positions of the Konrad-Adenauer-Stiftung on current topics. The individual issues present key findings and recommendations, offer brief analyses, explain the Foundation's further plans and name KAS contact persons.

 

Dr. Kristin Wesemann

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