Some remarks on Constitutional Judiciary, European Union and their Points of Contact

| EUdentity 2019

with Nincs hozzászólás
Mr. Pavel Rychetsky
President of the Constitutional Court of the Czech Republic

Honorable ladies and gentlemen,

Allow me to begin by thanking our hosts for their kind invitation and for providing an opportunity to ponder several phenomena which are connected to this space we exist in and which we, to a great extent, share. We may see it as symbolic that we meet in a year when we are celebrating the 30th anniversary of the events which led to the replacement of Central and Eastern European totalitarian regimes with democratic ones. The democratization of these countries had as its goal what was called a return to Europe, the symbolic culmination of which was the accession of our countries to the European Union. This integration became a reality almost exactly 15 years ago. And as if there weren’t enough anniversaries, I should also add that it has been exactly ten years since the European Union began to adhere to the Treaty of Lisbon. Such a year, I think, calls for reflection and I’m glad that I can share with you today some of my observations on this subject.

The democratic rule of law assumes the authority of law along with the separation and balance of powers. The examination of these principles, which is to say the examination of laws and regulations, is often (not always) entrusted in the hands of constitutional bodies which stand at the core of judicial review. In 1989, constitutional judiciary, though its roots reach much deeper into the past, became a common trait of practically all countries of Central or Eastern Europe. We may state, then, that our constitutional judiciary is celebrating its anniversary, too, because it is so closely linked to the values of the newly-established or, rather, renewed rule of law and democracy. With our entry into the European Union in 2004, the countries of our cultural and geographic region gained another common characteristic which expressed itself mainly through our integration into the same legal system, that of the European Union. However relatively autonomous[1] our domestic legal systems remain from those of the EU as a whole, their contact is impossible not to expect, namely having regard to the content of the past case law of national constitutional courts on the one hand and of the Court of Justice of the European Union on the other. It is therefore necessary to see this contact as a given value which, rather than rejection or critique, deserves constructive solutions, the pursuit of which was certainly deepened thanks to the Treaty of Lisbon, which came into effect 10 years ago and which, in Article 4 (2), works rather innovatively with the concept of “national identity,” in such a way as to develop the idea more thoroughly compared with earlier legal treatments. This does not mean, however, that it provides this concept with a clear legal definition.[2] In any case, it allowed the national identities of member states to be connected to their constitutional identity (that is, constitutional systems), which the European Union commits itself to respecting.

While the Court of Justice of the European Union is charged with reviewing the legality of EU legislation, the national constitutional courts are charged with domestic law, including protection of the constitutions, and thus also of national constitutional identity. As you surely know, it is not only a hypothetical assumption that this constellation may, under certain circumstances, lead to the incongruence of European law with the constitutional identity of this or that member state. This is where national constitutional judiciaries have come into contact with the Court of Justice of the European Union and, without being pessimistic, I realistically expect them to come into contact again in the future. Nevertheless, let us notice that their contact thus far, in some cases perhaps even their clashes, have not led, for now, to a systemic breaking-down of the legal equilibrium in the European Union and its constituents, nor has the significance and mission of the given actors, that is, the constitutional courts or the Court of Justice of the European Union, been undermined.[3] And here, I naturally take into account the fact, including from my own experience, that reservations about specific moves of one or the other side have been noted in the rulings on both sides.

Ön itt egy előadásrészletet talál, ami a 2019. március 8-án, Constitutional EUdentity 2019 címmel megrendezett konferencián
hangzott el. A teljes előadás szövegét az Alkotmánybírósági Szemle 2020. évi különszámában nyomtatott változatában olvashatja el. Előfizetni a folyóiratra itt tud.

[1] Judgement No. Pl. ÚS 5/12 of 31 January 2012.

[2] More on the concept of national and constitutional identity in the EU primary law see e.g. Leonard FM Besselink: National and Constitutional Identity before and after Lisbon, in Utrecht Law Review, Volume 6, Issue 3 (November) 2010, pp. 36-49 or Robert Zbíral: Koncept národní identity jako nový prvek ve vztahu vnitrostátního a unijního práva: poznatky z teorie a praxe, in Právník, 2014, 2, pp. 112-133.

[3] See e.g. Pietro Faraguna: Constitutional Identity: A Shield or a Sword? The Dilemma of Constitutional Identities in the EU, in German Law Journal, Vol. 18, No 7, 2017, p. 1639.