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² See Walker, Neil, The Idea of Constitutional Pluralism, 65 Mod. L. Rev. 317 (2002) (hereinafter Walker 2002); Neil Walker, Late Sovereignty in the European Union, in Sovereignty in Transition 3 (Neil Walker ed., 2003) (hereinafter Walker 2003).Google Scholar

³ Since then, seminal works have been published. See Maduro, Miguel, Contrapunctual Law: Europe's Constitutional Pluralism in Action, in Sovereignty in Transition 502 (Neil Walker ed., 2003); Neil Walker, Postnational Constitutionalism and the Problem of Translation, in European Constitutionalism Beyond the State (Joseph Weiler & Marlene Wind eds., 2003); Nick Barber, Legal Pluralism and the European Union, 12 Eur. L.J. 306 (2006); Miguel Maduro, Interpreting European Law: Judicial Adjudication in a Context of Constitutional Pluralism, 1 Eur. J. Legal Studies 1 (2007); Mattias Kumm, The Cosmopolitan Turn in Constitutionalism: On the Relationship Between Constitutionalism in and Beyond the State, in Ruling the World? Constitutionalism, International Law and Global Governance 258 (Jeffrey Dunoff & Joel Trachtman eds., 2009); Nico Krisch, Beyond Constitutionalism: The Pluralist Structure of Postnational Law (2010); Constitutional Pluralism in the European Union and Beyond (Matej Avbelj & Jan Komárek eds., 2012).Google Scholar

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⁵ Krisch, supra note 3, at 70.Google Scholar

⁶ Fritz Scharpf, Legitimacy in the Multilevel European Polity, 1 Eur. Pol. Sci. Rev. 173, at 175 (2009). For a defense of the democratic characteristics of pluralism, see Kuyper, Jonathan, The Democratic Potential of Systemic Pluralism, 3 Global Constitutionalism 170 (2014).Google Scholar

⁷ Bundesverfassungsgericht [BVerfGE] [Federal Constitutional Court], Jan. 14, 2014, 2 BvR 2728/13, para. 29 [hereinafter Gauweiler I].Google Scholar

⁸ See Kelemen, Daniel, On the Unsustainability of Constitutional Pluralism: European Supremacy and the Survival of the Eurozone, 23 Maastricht J. Eur. & Comp. L. 136 (2016).Google Scholar

⁹ See Sarmiento, Daniel, The OMT Case and the Demise of the Pluralist Movement, Despite our Differences (Sept. 21, 2015), https://despiteourdifferencesblog.wordpress.com/2015/09/21/the-omt-case-and-the-demise-of-the-pluralist-movement/.Google Scholar

¹⁰ See Fabbrini, Federico, After the OMT Case: The Supremacy of EU Law as the Guarantee of the Equality of the Member States, 16 German L.J. 1003 (2015).Google Scholar

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¹² The Polish Trybunałt Konstytucyjny recognized this important moment in its decision on the Accession Treaty: “The concept and model of European law created a new situation, wherein, within each Member State, autonomous legal orders co-exist and are simultaneously operative. Their interaction may not be completely described by the traditional concepts of monism and dualism regarding the relationship between domestic law and international law.” Trybunałt Konstytucyjny 11.05.2005 [Polish Constitutional Tribunal decision of May 11, 2005] K 18/04 at para. 12 [hereinafter Accession Treaty].Google Scholar

¹³ Because “state constitutionalism” is the default determinant, and because the destination language of “non-state constitutionalism” is under-developed, there is a danger that both scholars and actors in the integration process presume an isomorphism between the EU and their respective national polities. See Walker, supra note 3, at 40; Shaw, supra note 4, at 20; Renaud Dehousse, Beyond Representative Democracy: Constitutionalism in a Polycentric Polity, in European Constitutionalism Beyond the State (Joseph Weiler & Marlene Wind eds., 2003); Krisch, supra note 3, at 35. For political science literature, see Multi-Level Governance (Ian Bache & Matthew Flinders eds., 2004), at 78.Google Scholar

¹⁴ The same was underlined by Siniša Rodin, Judge at the Court of Justice, in a talk at the Bingham Centre in London, on November 2, 2015. He put forward the argument that the criticism addressed to the Court of Justice should be confined to those internal characteristics of the Court—not in comparison to a preferred, ideal type of a court, or even in comparison to a certain national constitutional or supreme court, but keeping in mind the specific context in which it operates as an institution of the EU. See also Ústavní soud České republiky 03.11.2009 (ÚS) [Decision of the Constitutional Court of Nov. 3, 2009], sp.zn. ÚS 29/09 paras. 137–140 (Czech) [hereinafter Lisbon Treaty II]. Google Scholar

¹⁵ See Shaw, supra note 4, at 7. Ingolf Pernice, Introduction: Achievements and Challenges: The European Union, Its Constitutional Courts and the Perspectives After Lisbon, in Europe's Constitutional Challenges in the Light of the Recent Case Law of National Constitutional Courts: Lisbon and Beyond, 9, 10 (José María Beneyto & Ingolf Pernice eds., 2011). For political science literature, see Hooghe, Liesbet & Marks, Gary, Unraveling the Central State, but How? Types of Multi-Level Governance, 97 Amer. Pol. Sci. Rev. 233, 237 (2003); Nupur Chowdhury & Ramses Wessel, Conceptualising Multilevel Regulation in the EU: A Legal Translation of Multilevel Governance?, 18 Eur. L.J. 335, 340 (2012).Google Scholar

¹⁶ See Twining, William, Globalization and Legal Theory 83 (2000). See also Maartje de Visser, Constitutional Review in Europe: A Comparative Analysis 3 (2014); Joseph Weiler, Journey to an Unknown Destination: A Retrospective and Prospective of the European Court of Justice in the Arena of Political Integration, 31 J. Common Mkt. Stud. 417, 422 (1993).Google Scholar

¹⁷ Matej Avbelj, The EU and the Many Faces of Legal Pluralism, 2 Croatian Y.B. Eur. L. & Pol'y 377, 381 (2006). For a further argument on the need for abandoning monism and dualism in favor of pluralism, see Armin von Bodgandy, Pluralism, Direct Effect, and the Ultimate Say: On the Relationship Between International and Domestic Constitutional Law, 6 Int. J. Const. L. 397, 399–400 (2008).Google Scholar

¹⁸ Such an understanding does not disregard the existence of hierarchy in national constitutional settings, but emphasizes heterarchy as a framework for the interaction of a plurality of legal orders co-existing and claiming sovereignty in the same geographical space. Heterarchy can be defined as “the relation of elements to one another when they are unranked or when they possess the potential for being ranked in a number of different ways.” Carole Crumley, Heterarchy and the Analysis of Complex Societies, 6 Archaeological Papers Am. Anthropological Ass'n 1, 3 (1995). Understood in this sense, heterarchy seems to adequately capture the relations between different units claiming authority, without predetermining the relationships within the plurality of unities. Nevertheless, the aim of the presented legal reasoning is to overcome “the almost unconscious assumption of hierarchy-as-order” that I find to be an inherent fallacy of the constitutionalist theory. Id. Google Scholar

¹⁹ Krisch, supra note 3, at 69.Google Scholar

²⁰ Alec Stone Sweet, A Cosmopolitan Legal Order: Constitutional Pluralism and Rights Adjudication in Europe, 1 Global Constitutionalism 53, 55 (2012).Google Scholar

²¹ Different versions of the same principle are also in place at the national level. For an analysis of the principle of friendliness towards European integration in constitutional jurisprudence of Member States, see Section 3 discussed in the text below. See infra, note 114; De Visser, supra note 16, at 3 n.14.Google Scholar

²² Walker 2002, supra note 2, at 346.Google Scholar

²³ Hand Lindahl, A-Legality: Postnationalism and the Question of Legal Boundaries, 73 Mod. L. Rev. 30, 30 (2010).Google Scholar

²⁴ See Pernice, Ingolf, Multilevel Constitutionalism and the Treaty of Amsterdam: European Constitution Making Revisited?, 36 Common Mkt. L. Rev. 703 (1999).Google Scholar

²⁵ MacCormick, supra note 1, at 102.Google Scholar

²⁶ Barber, supra note 3, at 306.Google Scholar

²⁷ See generally Sarmiento, supra note 9.Google Scholar

²⁸ Fabbrini, supra note 10, at 1012.Google Scholar

²⁹ Bundesverfassungsgericht [BVerfGE] [Federal Constitutional Court], Feb. 7, 2014, Press release No. 9/2014, at introductory para. [hereinafter Gauweiler I Press Release]. Google Scholar

³⁰ See Fabbrini, supra note 10, at 1012; Takis Tridimas & Napoleon Xanthoulis, A Legal Analysis of the Gauweiler Case: Between Monetary Policy and Constitutional Conflict, 23 Maastricht J. Eur. & Comp. L. 17, 18 (2016); Paul Craig & Menelaos Markakis, Gauweiler and the Legality of Outright Monetary Transactions, 41 Eur. L. Rev. 4, 14 (2016).Google Scholar

³¹ Recommendations to National Courts and Tribunals in Relation to the Initiation of Preliminary Ruling Proceedings, 2012 O.J. (338) 1, para. 24 (Nov. 2, 2012); see also Jacobs, Francis, Judicial Dialogue and the Cross-Fertilization of Legal Systems: The European Court of Justice, 38 Texas Int. L.J. 547, 548 (2003).Google Scholar

³² See Monica Claes & Jan-Herman Reestman, The Protection of National Constitutional Identity and the Limits of European Integration at the Occasion of the Gauweiler Case, 16 German L.J. 917 (2015); see also Fabbrini, supra note 10; Georgios Anagstostaras, In ECB we Trust… the FCC we Dare! The OMT Preliminary Ruling, 40 Eur. L. Rev. 744 (2015).CrossRefGoogle Scholar

³³ ECJ, Case C-370/12, Pringle v. Government of Ireland et al., ECLI:EU:C:2012:756, Judgment of Nov. 27, 2012.Google Scholar

³⁴ ECJ, Case C-62/14, Gauweiler et al. v. Deutscher Bundestag, ECLI:EU:C:2015:400, paras. 51–52, Judgment of June 16, 2015 [hereinafter Gauweiler et al.]. Google Scholar

³⁵ See generally Fabbrini, supra note 10; Sarmiento, supra note 9.Google Scholar

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³⁷ Id. at paras. 136–42.Google Scholar

³⁸ Id. at paras. 143–50.Google Scholar

³⁹ Id. at para. 163.Google Scholar

⁴⁰ MacCormick, supra note 1, at 264.Google Scholar

⁴¹ Mattias Kumm, Who is the Final Arbiter of Constitutionality in Europe: Three Conceptions of the Relationship Between the German Federal Constitutional Court and the European Court of Justice, 36 Common Mkt. L. Rev. 351, 384 (1999).Google Scholar

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⁴³ Id. at 140.Google Scholar

⁴⁴ Id. at 141.Google Scholar

⁴⁵ Id. at 141, 148–49.Google Scholar

⁴⁶ Mutually assured destruction is a doctrine of military strategy and national security policy in which a full-scale use of nuclear weapons by two or more opposing sides would cause the complete annihilation of both the attacker and the defender. It is based on the theory of deterrence, which holds that the threat of using strong weapons against the enemy prevents the enemy's use of those same weapons. The strategy is a form of Nash equilibrium in which, once armed, neither side has any incentive to initiate a conflict or to disarm. Mutually Assured Destruction, Wikipedia.com, https://en.wikipedia.org/wiki/Mutual_assured_destruction (last visited Sept. 19, 2016).Google Scholar

⁴⁷ Monica Claes & Maartje de Visser, Are you Networked Yet? On Dialogues in European Judicial Networks, 8 Utrecht L. Rev. 100, 106 (2012).Google Scholar

⁴⁸ Even the Polish Trybunałt Konstytucyjny, considered as one of the constitutional courts closest to the German understanding of limits to the primacy of EU law, proposed several possible solutions in the event of a constitutional conflict before leaving the EU: In such an event [of a collision between provisions of EU law and the Constitution] the Nation as the sovereign, or a State authority organ authori[z]ed by the Constitution to represent the Nation, would need to decide on: [A]mending the Constitution; or causing modifications within Community provisions; or, ultimately, on Poland's withdrawal from the European Union.Google Scholar

Accession Treaty, supra note 12, at para. 13.Google Scholar

⁴⁹ Kelemen, supra note 8, at 148.Google Scholar

⁵⁰ Id. Google Scholar

⁵¹ A doomsday device is a hypothetical construction—usually a weapon, or collection of weapons—which could destroy all life on a planet, particularly Earth, or destroy the planet itself, bringing “doomsday,” a term used for the end of planet Earth. Doomsday Device, Wikipedia.com, https://en.wikipedia.org/wiki/Doomsday_device (Sep. 19, 2016).Google Scholar

⁵² Fabbrini, supra note 10, at 1018.Google Scholar

⁵³ The Court mentioned national identity only in the preliminary points of the judgment (§17), omitting any further analysis in the remainder of the judgment. See generally Gauweiler et al., supra note 34.Google Scholar

⁵⁴ See Andreas Voßkuhle, Multilevel Cooperation of the European Constitutional Courts: Der Europäische Verfassungsgerichtsverbund, 6 Eur. Const. L. Rev. 175, 188 (2010); Mattias Wendel, Judicial Restraint and the Return to Openness: The Decision of the German Federal Constitutional Court on the ESM and the Fiscal Treaty of September 12, 2012, 14 German L.J. 21, at 41 (2013).Google Scholar

⁵⁵ Kelemen, supra note 8, at 144.Google Scholar

⁵⁶ The Court of Justice introduced this long-standing jurisprudence as early as 1964. See ECJ, Case C-6/64, Flaminio Costa v. E.N.E.L., ECLI:EU:C:1964:66, Judgment of July 15, 1964.Google Scholar

⁵⁷ Fabbrini, supra note 10, at 1014–16.Google Scholar

⁵⁸ Id. at 1014.Google Scholar

⁵⁹ MacCormick, supra note 1, at 264.Google Scholar

⁶⁰ S.T.C., Dec. 13, 2004, (Case No. 1/2004, para II-4) (Spain) [hereinafter Constitutional Treaty]. Google Scholar

⁶¹ Michael Dougan, When Worlds Collide! Competing Visions of the Relationship Between Direct Effect and Supremacy, 44 Common Mkt. L. Rev. 931, 934 (2007).Google Scholar

⁶² Id. at 942.Google Scholar

⁶³ Millet points to different constitutional amendments that several Member States undertook in order to accommodate the implementation of the European Arrest Warrant. See François-Xavier Millet, How Much Lenience for how Much Cooperation? On the First Preliminary Reference of the French Constitutional Council to the Court of Justice, 51 Common Mkt. L. Rev. 195, 196 (2014). Moreover, the Spanish Constitutional Court accepted the necessary changes in its Melloni decision after receiving a response to the preliminary reference submitted to the Court of Justice in Case C-399/11 Melloni. See S.T.C., Feb. 13, 2014 (Case No. 26/2014) (Spain) [hereinafter Melloni]); ECJ, Case C-399/11, Stefano Melloni v. Ministerio Fiscal, ECLI:EU:C:2013:107, 26 Feb.2013. In addition, this serves as a case in point to demonstrate that national courts performing constitutional review are only one among many of the relevant constitutional actors at the national level, and while their jurisprudence might be seen as central to the prospect of constitutional conflict, the national constitutional structure will also serve as a break in conflict control.Google Scholar

⁶⁴ Fabbrini, supra note 10, at 1019.Google Scholar

⁶⁵ Id. at 1015.Google Scholar

⁶⁶ Id. at 1019.Google Scholar

⁶⁷ Article 31(1) of the Vienna Convention on the Law of Treaties states that treaties shall be interpreted: “[I]n good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” No mention can be found of the literal interpretation which would result in a subordinate relationship of two clauses within the same provision.Google Scholar

⁶⁸ ECJ, Case C-36/02, Omega Spielhallen- und Automatenaufstellungs-GmbH v. Oberbürgermeisterin der Bundesstadt Bonn, ECLI:EU:C:2004:614, Judgment of Oct. 14, 2004Google Scholar

⁶⁹ ECJ, Case C-208/09, Ilonka Sayn-Wittgenstein v. Landeshauptmann von Wien, ECLI:EU:C:2010:806, Judgment of Dec. 22, 2010.Google Scholar

⁷⁰ ECJ, Case C-391/09, Malgožata Runevič-Vardyn and Łtukasz Pawełt Wardyn v. Vilniaus miesto savivaldybės administracija et al., ECLI:EU:C:2011:291, Judgment of May 12, 2011.Google Scholar

⁷¹ For a similar pluralist reading of the national identity clause, see Armin von Bogdandy & Stephan Schill, Overcoming Absolute Primacy: Respect for National Identity Under the Lisbon Treaty, 48 Common Mkt. L. Rev. 1417, 1452 (2011).Google Scholar

⁷² The Polish Trybunałt Konstytucyjny made an excellent point concerning the national identity clause: “[C]onfirming one's national identity in solidarity with other nations, and not against them.” Trybunałt Konstytucyjny 24.11.2010 [Polish Constitutional Tribunal decision of Nov. 24, 2010] K 32/09 at para. 2.1 [hereinafter Polish Treaty of Lisbon]. Google Scholar

⁷³ See Sayn-Wittgenstein, Case 208/09. The Court's reasoning in Case C-208/09 Sayn-Wittgenstein is particularly useful in this regard. The Court first analyzed the status of the value invoked by the Austrian authorities, id. at paras. 74, 83, after which it introduced its connection to the already existing public policy justification. Id. at para. 84. Finally, it states that “the concept of public policy as justification for a derogation from a fundamental freedom must be interpreted strictly, so that its scope cannot be determined unilaterally by each Member State without any control by the European Union institutions.” Id. at para. 86.Google Scholar

⁷⁴ Runevič-Vardyn, Case C-391/09 at para. 87.Google Scholar

⁷⁵ Id. at para. 88.Google Scholar

⁷⁶ Academic literature in this field generally seems to agree on this point. In opposition to the usefulness of the principle of proportionality in the balancing exercise before the Court of Justice, see Cloots, Elke, National identity in EU law 196 (2015).Google Scholar

⁷⁷ For another recent piece supporting the theory of constitutional pluralism, see Goldmann, Matthias, Constitutional Pluralism as Mutually Assured Discretion: The Court of Justice, the German Federal Constitutional Court, and the ECB, 23 Maastricht J. Eur. & Comp. L. 119 (2016); Neil Walker, Constitutional Pluralism Revisited 22 Eur. L. Rev. 333 (2016).Google Scholar

⁷⁸ Walker 2002, supra note 2, at 337.Google Scholar

⁷⁹ Id. Google Scholar

⁸⁰ Franz Mayer, The European Constitution and the Courts Adjudicating European Constitutional Law in a Multilevel System, Jean Monnet Working Paper 9/03 at 4 (2003).Google Scholar

⁸¹ See Gw. [Constitution] art. 120 (Netherlands). The Constitution in English is available at http://www.parliament.am/library/sahmanadrutyunner/niderland.pdf, (Sept. 17, 2016). The prohibition includes both ex ante and ex post review, as well as both substantive and procedural review. See Gerhard van der Schyff, Constitutional Review by the Judiciary in the Netherlands: A Bridge Too Far?, 11 German L.J. 275, 277 (2010).Google Scholar

⁸² Monica Claes, The National Courts' Mandate in the European Constitution 253–54 (2006).Google Scholar

⁸³ For a comparative analysis of the two systems, see Ng, Gar Yein, Judicialisation and the End of Parliamentary Supremacy: Shifting Paradigms in the Protection of the Rule of Law and Human Rights in the UK, France and the Netherlands, 3 Global J. Comp. L. 50 (2014).Google Scholar

⁸⁴ Article 94 of the Dutch Constitution says: “Statutory regulations in force within the Kingdom shall not be applicable if such application is in conflict with provisions of treaties or of resolutions by international institutions that are binding on all persons.” See Gw. [Constitution], supra note 81, art. 94. See also van der Schyff, supra note 81, at 280.Google Scholar

⁸⁵ Yein Ng, supra note 83, at 88 (concluding that as a result of the monist approach to the incorporation of international law, the Dutch courts have a peculiar role in interpreting directly applicable international law and using it as a standard of review against national statutes).Google Scholar

⁸⁶ Yein Ng, supra note 83, at 93 (concluding that the Netherlands, in comparison to the UK and France, has the weakest form of judicial review).Google Scholar

⁸⁷ Sir John Laws, Constitutional Guarantees, 29 Statute L. Rev. 1, 3 (2008).Google Scholar

⁸⁸ Thoburn v. Sunderland City Council [2002] EWHC 195 (Admin) [§§ 62–63].Google Scholar

⁸⁹ Kate Malleson, The Evolving Role of the Supreme Court, Pub. L. 754, 760 (2011).Google Scholar

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⁹⁷ For Lord Neuberger's response to the Political and Constitutional Reform Committee of the House of Commons, see supra note 94, at 24. For a comprehensive analysis of the influence that the introduction of the Human Rights Act has had on judicial review, and an argument supporting the existence of constitutional review in the UK, see Malleson, supra note 89. See generally Kavanagh, Aileen, Constitutional Review Under the UK Human Rights Act (2009).Google Scholar

⁹⁸ The United Kingdom was included in the analysis regardless of the subsequent decision of the British voters to leave the European Union. This was done primarily while the UK Supreme Court has been part of the European judicial space, contributing to the development of the relationship between UK and EU constitutional law, and will continue to do so until the final exit agreement between the UK and the EU. The decision of the UK to leave the EU does not do away with the role the Supreme Court in relation to EU law, nor would the analysis be complete had it been excluded.Google Scholar

⁹⁹ All reports are available at http://www.confeuconstco.org/ (last visited Nov. 4, 2015). The advantage of the reports is that all constitutional/supreme courts were answering the same questionnaire, thereby ensuring that all the replies were given in the same context.Google Scholar

¹⁰⁰ The interviews were conducted as part of the research visit to the Court of Justice between February and May 2015, with seven Judges and Advocates General. To ensure the anonymity of the interviewees, they will be referred to as “Interviewee 1,” “Interviewee 2,” etc.Google Scholar

¹⁰¹ While the sources under (3) and (4) do not represent the official stance of the institution(s) for which the interviewees work, Grainger pointed out, in relation to the Court of Justice in particular, that it is not a homogeneous actor, but is rather a “complex social entity.” Similarly, Weiler pointed out that any analysis of the Court of Justice cannot be complete if the Court is regarded simply as an “homogeneous institution.” See Marie-Pierre Grainger, The Future of Europe: Judicial Interference and Preferences, 3 Comp. Eur. Politics 155, 175 (2005); Joseph Weiler, The Reform of European Constitutionalism, 35 J. Common Mkt. Stud. 95, 106 (1997); Iyiola Solanke, “Stop the ECJ”?: An Empirical Analysis of Activism at the Court, 17 Eur. L.J. 764, 765 (2011). Consequently, the personal opinions of the decision-makers in the Court of Justice and other national constitutional courts bear significance regarding the work and position of their institution(s). The same was underlined in the national report of the Irish Supreme Court, which confirms the influence of the jurisprudence of both the ECJ and the Court in Strasbourg on the case law of the Supreme Court, underlining how inevitable this is, given the work experience of current Supreme Court judges as judges in European courts. See National Report–The Supreme Court of Ireland (2014), at 3.Google Scholar

¹⁰² I will refer to them as keywords throughout the text.Google Scholar

¹⁰³ Bulgaria, Cyprus, the Czech Republic, Denmark, Germany, Hungary, Italy, Latvia, Lithuania, Poland, Portugal, Romania, Slovakia, Slovenia, Spain and the United Kingdom.Google Scholar

¹⁰⁴ Austria, Belgium, Croatia, Ireland, Luxembourg, and Malta.Google Scholar

¹⁰⁵ See Ústavní Soud České republiky ze dne 26.11.2008 (ÚS) [Decision of the Constitutional Court of Nov. 26, 2008], sp.zn. Pl. ÚS 19/08 para. 216 (Czech) [hereinafter Lisbon Treaty I]; Danish H&;jesteret, Carlsen and Others v. Prime Minister, UfR [Apr. 6, 1998], Case No. I 361/1997, 800, reported in English in 3 Common Mkt. L. Rep. 854 (1993) [hereinafter Carlsen]; Bundesverfassungsgericht [BVerfGE] [Federal Constitutional Court], July 6, 2010, 2 BvR 2661/06, 126 BVerfGE 286, para. 68 [hereinafter Honeywell]; National Report, The Constitutional Court of the Republic of Lithuania (2014), at 5; Accession Treaty, supra note 12, at para. 11; UK Supreme Court, Pham v. Secretary of State for the Home Department, U.K.S.C. 19 para. 90 (2015) [hereinafter Pham].Google Scholar

¹⁰⁶ See Ústavní Soud České republiky 08.03.2006 (ÚS) [Decision of the Constitutional Court of Mar. 8, 2006], sp.zn. Pl. ÚS 50/04 at headnote para. 8 (Czech) [hereinafter Sugar Quotas III]; Bundesverfassungsgericht [BVerfGE] [Federal Constitutional Court], Oct. 12, 1993, 2 BVR 2134/92, 89 BVerfGE 155 at para. C.II.1.a [hereinafter Maastricht]; Constitutional Treaty, supra note 60, at para. II–2.Google Scholar

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¹⁰⁸ For an analysis of the increasing frequency of state-centered claims by the Bundesverfassungsgericht, see Murkens, Jo, “We Want our Identity Back”: The Revival of National Sovereignty in the German Federal Constitutional Court's Decision on the Lisbon Treaty, 25 Pub. L. 530 (2010).Google Scholar

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¹¹¹ Costa v. E.N.E.L., supra note 56, at 593. A more detailed analysis of the vocabulary of the Court of Justice concerning the question of sovereignty of the EU can be found in Bruno de Witte, Direct Effect, Supremacy and the Nature of the Legal Order, in Evolution of EU Law (Paul Craig & Gráinne de Búrca eds., 1999).Google Scholar

¹¹² Discussed above in Section 2.Google Scholar

¹¹³ Weiler reflected upon the relationship between the Court of Justice and its interlocutors, concluding it is not “a matter of legal determination and then logical deduction from the doctrine, but a matter of empirical observation and social and political explanation.” Weiler, supra note 16, at 419; see also Eckes, Christina & Hollenberg, Stephan, Reconciling Different Legal Spheres in Theory and Practice: Pluralism and Constitutionalism in the Cases of Al-Jedda, Ahmed and Nada, 20 Maastricht J. Eur. & Comp. L. 220, 224 (2013).Google Scholar

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¹¹⁵ Regarding its principle of openness towards EU law, the German Bundesverfassungsgericht stated in Honeywell: “When exercising this competence to affect a review, the principle of openness of the Basic Law towards Europe is to be complied with as a correlate of the principle of sincere cooperation (Article 4.3 TEU) and to be made fruitful.” Honeywell, supra note 105, at para. 100.Google Scholar

¹¹⁶ General Report, Conference of European Constitutional Courts, supra note 114, at 2–4.Google Scholar

¹¹⁷ See Trybunałt Konstytucyjny 16.11.2011 [Polish Constitutional Tribunal decision of Nov. 16, 2011] SK 45/09 para. 2.6 [hereinafter Brussels Regulation]; Lisbon Treaty II, supra note 14, at para. 112; General Report, Conference of European Constitutional Courts, supra note 114, at 2; National Report, The Constitutional Court of the Czech Republic, supra note 114, at 4; National Report, The Supreme Court of Denmark (2014), at 12; National Report, The Federal Constitutional Court of the Republic of Germany, supra note 114, at 3; National Report, The Constitutional Court of Hungary, supra note 114, at 2–3; National Report, The Constitutional Tribunal of the Republic of Poland (2014), at 2; National Report, The Constitutional Court of Romania (2014), at 12; M. Wathelet, Advocate General, Constitutional Courts and the CJEU: Is There a Dialogue? History and Prospects, Address at the EU Law Discussion Group at the Law Faculty, University of Oxford (Oct. 23, 2015).Google Scholar

¹¹⁸ See generally Wathelet, supra note 117.Google Scholar

¹¹⁹ Rosalyn Higgins, Problems and Process: International Law and How We Use It 10 (1995).Google Scholar

¹²⁰ See Report, National, The Constitutional Court of Belgium (2014), at 31; Lisbon Treaty I, supra note 5, at para. 5; Carlsen, supra note 105, at para. 9.6; Granital, supra note 114, at para. 7–7; Brussels Regulation, supra note 117, at para. 2.7; Constitutional Treaty, supra note 60, at para. II–4; Melloni, supra note 63, at para. II-3; National Report, The Federal Constitutional Court of the Republic of Germany, supra note 114, at 3; Pham, supra note 105, at para. 91.Google Scholar

¹²¹ See Regulation, Brussels, supra note 117, at paras. 2.5, 2.8; National Report, The Constitutional Court of Romania, supra note 117, at 12; Pham, supra note 105, at para. 91.Google Scholar

¹²² See Regulation, Brussels, supra note 117, at para. 2.6; General Report, Conference of European Constitutional Courts, supra note 114, at 12; National Report, The Portuguese Constitutional Court, supra note 114, at 23; National Report, The Constitutional Court of Romania, supra note 117, at 12–13; National Report, The Constitutional Court of the Slovak Republic (2014), at 12; National Report, The Constitutional Court of the Republic of Slovenia (2014), at 18; UK Supreme Court, R (on the application of HS2 Action Alliance Limited) [2014] U.K.S.C. 3 at para. 202 [hereinafter UK Supreme Court, HS2]; Pham, supra note 105, at para. 91.Google Scholar

¹²³ Granital, supra note 114, at para. 7–4.Google Scholar

¹²⁴ See Report, National, The Constitutional Court of the Czech Republic, supra note 114, at 11; Brussels Regulation, supra note 117, at para. 2.5; National Report, The Constitutional Court of Romania, supra note 117, at 58; Pham, supra note 105, at para. 91.Google Scholar

¹²⁵ National Report, The Constitutional Tribunal of the Republic of Poland, supra note 117, at 2.Google Scholar

¹²⁶ Interviewee 1; Interviewee 2; Interviewee 3; Interviewee 4; Interviewee 5; Interviewee 6.Google Scholar

¹²⁷ Interviewee 1; Interviewee 2, Interviewee 4; see Report, National, The Supreme Court of Denmark, supra note 117, at 12; National Report, The Portuguese Constitutional Court, supra note 114, at 23; Brussels Regulation, supra note 117, at para. 2.6.Google Scholar

¹²⁸ See Report, National, The Constitutional Court of Austria (2014), at 11; National Report, The Constitutional Court of Croatia (2014), at 24; National Report, The Supreme Court of Cyprus, supra note 114, at 5; National Report, The Constitutional Court of the Czech Republic, supra note 114, at 20; National Report, The Federal Constitutional Court of the Republic of Germany, supra note 114, at 17; National Report, The Constitutional Court of Hungary, supra note 114, at 2; National Report, The Supreme Court of Ireland, supra note 101, at 5; National Report, The Constitutional Court of the Republic of Latvia, supra note 114, at 8; National Report, The Constitutional Court of the Republic of Lithuania, supra note 105, at 30; National Report, The Constitutional Court of the Republic of Malta (2014), at 4; National Report, The Constitutional Tribunal of the Republic of Poland, supra note 117, at 15; National Report, The Portuguese Constitutional Court, supra note 114, at 38; National Report, The Constitutional Court of Romania, supra note 117, at 61–62; National Report, The Constitutional Court of the Slovak Republic, supra note 122, at 9; National Report, The Constitutional Court of the Republic of Slovenia, supra note 122, at 26; National Report, The Constitutional Tribunal of Spain (2014), at 26; Pham, supra note 105, at 91.Google Scholar

¹²⁹ General Report, Conference of European Constitutional Courts, supra note 114, at 8.Google Scholar

¹³⁰ Claes & Reestman, supra note 32, 941.Google Scholar

¹³¹ General Report, Conference of European Constitutional Courts, supra note 114, at 9.Google Scholar

¹³² The very framework of the Conference of European Constitutional Courts demonstrates how cooperation among judges and courts contributes to what Jacobs famously called the cross-fertilization of legal systems. See generally Jacobs, supra note 31.Google Scholar

¹³³ Fabbrini, supra note 10, at 1014–1016.Google Scholar

¹³⁴ To reiterate the point made by the Polish Trybunałt Konstytucyjny: “[C]onfirming one's national identity in solidarity with other nations, and not against them.” Polish Treaty of Lisbon, supra note 72, at para. 2.1.Google Scholar

¹³⁵ Co-operative programs, conferences and networking events of these judicial networks play a role in the coordination of judicial activity and the unification of practices at the national level. One of their main advantages is precisely the level-playing field, where no judicial instance is in a hierarchical position to another. See Claes & de Visser, supra note 47, at 101.Google Scholar

¹³⁶ Kelemen, supra note 8, at 146.Google Scholar

¹³⁷ See Lord Neuberger and Lord Mance in UK Supreme Court, HS2, supra note 122, at para. 201.Google Scholar

¹³⁸ Ústavní Soud České republiky 31.12.2012 [Decision of the Constitutional Court of Dec. 31, 2012], Pl. ÚS 5/12 (Czech) [hereinafter Czech CC Slovak Pensions]. Google Scholar

¹³⁹ For a more detailed analysis of the intricacies of the case, see Bobek, Michal, Landtová, Holubec, and the Problem of an Uncooperative Court: Implications for the Preliminary Ruling Procedure, 10 Eur. Const. L. Rev. 54 (2014).Google Scholar

¹⁴⁰ Id. at 66.Google Scholar

¹⁴¹ Id. Google Scholar

¹⁴² See generally Wathelet, supra note 117.Google Scholar

¹⁴³ Federico Fabbrini, The European Court of Justice, the European Central Bank and the Supremacy of European Law: Introduction, 23 Maastricht J. of Eur. & Comp. L. 1, 2 (2016).Google Scholar

¹⁴⁴ Interviewee 4 stated that the case should not be taken into account as a representation of anything, as is it vitiated by numerous mistakes on behalf of both the Czech Constitutional Court and the Court of Justice.Google Scholar

¹⁴⁵ The exact wording used by the Czech Constitutional Court was: “The Constitution[al] Court inferred that the Court of Justice of the European Union had overlooked these facts, as it otherwise would have had to conclude that EU law was not applicable in the situation [at] hand.” National Report, The Constitutional Court of the Czech Republic, supra note 114, at 18.Google Scholar

¹⁴⁶ See Kelemen, supra note 8, at 146.Google Scholar

¹⁴⁷ See generally supra note 13 for the discussion and the relevant literature.Google Scholar

¹⁴⁸ See Walker 2003, supra note 3, at 40. See generally Rodin's argument, supra note 14.Google Scholar

¹⁴⁹ See Weiler, supra note 16, at 419 (discussing “persuasion pull” and “compliance pull” as the drivers behind the implementation of the case law of the Court of Justice).Google Scholar

¹⁵⁰ See Laurence Helfer & Anne-Marie Slaughter, Toward a Theory of Effective Supranational Adjudication, 107 Yale L.J. 273, 314 (1997); Krisch, supra note 3, at 247.Google Scholar

¹⁵¹ See Higgins, supra note 119, at 10. See also Claes, supra note 82, at 713.Google Scholar

¹⁵² See Shaw, supra note 4, at 14, 19, 24; see also Zenon Bañkowski & Emilios Christodoulidis, The European Union as an Essentially Contested Project, 4 Eur. L.J. 341, 342 (1998).Google Scholar

¹⁵³ Bundesverfassungsgericht [BVerfGE] [Federal Constitutional Court], May 29, 1974, 37 Entscheidungen Des Bundesverfassungsgerichts (BGHZ) 271 (hereinafter Solange I).Google Scholar

¹⁵⁴ In its response, the Court of Justice used the common constitutional traditions of Member States as the source of inspiration and the level of protection of fundamental rights that will be accorded on the Union level. See ECJ, Case C-4/73, J. Nold, Kohlen- und Baustoffgroßhandlung v. Commission of the European Communities, at para. 13, Judgment of May 14, 1974. Finally, the German Constitutional Court accepted such a level of protection in the Solange II judgment. See Bundesverfassungsgericht [BVerfGE] [Federal Constitutional Court], Oct. 22, 1986, 73 Entscheidungen Des Bundesverfassungsgerichts [BVerfGE] 339 [hereinafter Solange II].Google Scholar

¹⁵⁵ Krisch, supra note 3, at 247 onwards.Google Scholar

¹⁵⁶ The area of fundamental rights is an excellent example of how the EU has evolved as a constitutional legal order not comparable to nation states. See Gráinne de Búrca, After the EU Charter of Fundamental Rights: The Court of Justice as a Human Rights Adjudicator?, 20 Maastricht J. Eur. & Comp. L. 168, 169 (2013).Google Scholar

¹⁵⁷ See Sweet, Alec Stone, The Structure of Constitutional Pluralism: Review of Nico Krisch, Beyond Constitutionalism: The Pluralist Structure of Post-National Law, 11 Int. J. Const. L. 491, 500 (2013).Google Scholar

¹⁵⁸ Kelemen, supra note 8, at 141, 148–149.Google Scholar

¹⁵⁹ Similarly, Rodin differentiates among the immediate and the future impact of the case law of the Court, arguing that the latter is based on the changed societal context, gradually transforming a judgment into a landmark. See S Rodin, Dumb and No More Here, Address at the Conference on Central and Eastern European Judges Under The EU Influence: The Transformative Power of Europe Revisited on the 10th Anniversary of the Enlargement, 12–13 May 2014, EUI, Florence, Italy [cited with the author's permission], at 10, 14.Google Scholar

¹⁶⁰ Stone Sweet argues that the possibility of a conflict is a “manifestation, probably permanent, of a pluralist structure of EU law.” Stone Sweet, supra note 20, at 65.Google Scholar

¹⁶¹ This is not to diminish the importance of the principle of primacy in the case law of the Court of Justice, but rather to emphasize the importance of the “political” in relation to the “legal.” Moreover, it also serves to reiterate the importance of the national constitutional setting and its ability to constrain national constitutional jurisdictions.Google Scholar

¹⁶² Barbara Guastaferro, Beyond the Exceptionalism of Constitutional Conflicts: The Ordinary Functions of the Identity Clause, Jean Monnet Working Paper 01/12 at 4 (2012).Google Scholar

¹⁶³ Bundesverfassungsgericht [BVerfGE] [Federal Constitutional Court], Dec. 15, 2015, Order No. 2 BvR 2735/14 [hereinafter EAW Order].Google Scholar

¹⁶⁴ The same was underlined by the Austrian Constitutional Court, where it stated that should a conflict arise, this should not be developed beyond an individual case. National Report, The Constitutional Court of Austria, supra note 128, at 9.Google Scholar

¹⁶⁵ Soon to be 27.Google Scholar

¹⁶⁶ See generally Case C-36/02 Omega, supra note 68; Case C-208/09, Sayn-Wittgenstein, supra note 69; Case C-391/09 Runevič-Vardyn, supra note 70.Google Scholar

¹⁶⁷ See generally Conseil constitutionnel [CC] [Constitutional Court] decision No. 2007–560 DC, Dec. 20, 2007 (France) [hereinafter Treaty of Lisbon]; Honeywell, supra note 105; Gauweiler, supra note 34.Google Scholar

¹⁶⁸ Two further examples that highlight the auto-correct function are: (1) the decision of the Bundesverfassungsgericht in relation to the European Arrest Warrant (EAW). In this decision, the German Court was in a position to enter into a discussion on the compatibility of the EAW with the Basic Law. Instead, the Court only focused on interpreting the national law that implemented the EAW, and avoided entirely having to entertain the idea of declaring an EU act contrary to the national constitution. Bundesverfassungsgericht [BVerfGE] [Federal Constitutional Court], July 18, 2005, Decision No. 2 BvR 2236/04, [hereinafter EAW Constitutionality]. See also Alicia Hinarejos, Case Comment: Bundesverfassungsgericht (German Constitutional Court), Decision of 18 July 2005 (2 BvR 2236/04) on the German European Arrest Warrant Law, 43 Common Mkt. L. Rev. 583 (2006); and (2) the decision of the Polish Trybunałt Konstytucyjny on the constitutional complaint concerning Article 45 of the Council Regulation 44/2001/EC of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. See 2012 O.J. (L 12) 1 (Jan. 16, 2001). The Polish Trybunałt Konstytucyjny provided a broad interpretation of the term “normative act” and assumed jurisdiction to review secondary acts of EU law against the Constitution. In addition, the Tribunal stated that its jurisdiction to do so is only subsidiary to that of the Court of Justice in relation to EU primary law (§2.6). Nevertheless, it found the provision to be in accordance with the Polish Constitution. I argue that, regardless of expanding its jurisdiction to review secondary EU acts, the Polish Constitutional Tribunal was aware and intentionally exhibited self-restraint in order to avoid conflict. See generally Brussels Regulation, supra note 117.Google Scholar

¹⁶⁹ See the Opinion of Advocate General Maduro in Joined cases C-402/05 P and C-415/05 P Kadi 2008, §44. See also Claes, supra note 82, at 37.Google Scholar

¹⁷⁰ As Franz Mayer famously named the Bundesverfassungsgericht. Franz Mayer, Rashomon in Karlsruhe: A Reflection on Democracy and Identity in the European Union, 9 Int. J. Const. L. 757 (2011).Google Scholar

¹⁷¹ Claes and Reestman were correct to point out that the Court of Justice was particularly wise not to engage in the debate on the difference between national and constitutional identity, but rather focused on solid arguments to assess the legal basis for, and in the event preserve, the OMT. Claes and Reestman, supra note 32, at 970. In July 2017, the Bundesverfassungsgericht submitted its second request for a preliminary reference to the Court of Justice, engaging in a more profound debate on the limits of the monetary policy mandate of the ECB, and the mechanisms used to redress the Euro crisis. The reference is an excellent illustration of the procedural and substantive aspects of incrementalism, developing and building the constructive conversation between the two courts, and a parallel refinement of the standard of review of ECB's activity in resolving the Euro crisis. Bundesverfassungsgericht [BVerfGE] [Federal Constitutional Court], July 18, 2017, Order No. 2 BvR 859/15, 2 BvR 980/16, 2 BvR 2006/15, 2 BvR 1651/15.Google Scholar

¹⁷² This is contrary to Kelemen, who underlines the immaturity of the system that needs to be overcome by a final resolution of the quest for the ultimate judicial authority in the EU. See Kelemen, supra note 8, at 136.Google Scholar