Constitutional Courts as Frontier Institutions in the European Constitutional Space: On the Road Towards “Van Gend En Loos 2”?

Tomasz Koncewicz

The constitutional landscape of the European Union (EU) today is being dominated by the overlapping consensus of constitutional courts which forms the heart of supranational adjudication in Europe with different interests, power struggles and jostling for better positions. Post-national law sees law as a never ending discourse and conflict as written into the DNA of the system. Dogmatic and exclusive “either … or” logic becomes untenable as hierarchy is highly divisive from the external perspective of plural systems which look for ways to coexist and operate and not simply cancel each other out. Each system stakes its own claim to constitutional distinctiveness.

The uniqueness of European legal space resides in different courts speaking for their respective legal systems and coming up with divergent interpretations of the systemic relationship between EU law and national laws. European constitutionalism aims at redrawing the constitutional status quo and points towards new opportunities and methods of understanding the world of European constitutionalism. Seen from this perspective the main concern of European constitutionalism is focused on the proper understanding and categorization of EU as a supranational community designed to complement states, and not replace them, to provide a new platform for citizens’ interests and to protect them beyond state borders, often against the excesses of their own states. It recognizes that a constitutional court aspiring to be “good” must be able to go beyond the mere defense of its constitution when it is attacked and on to accept the challenge of promoting domestic constitutional values as part of the European constitution-building process. In other words a constitutional court must become a “frontier institution” that reconciles domestic claims and rights with the supranational sources of law and authority. The frontier function of constitutional courts stems from accepting that the legitimacy of judicial power comes not only from within the systems but is also a consequence of systems interacting, learning and adapting.

EU legal order is more nuanced as it introduces a certain degree of constitutional problematisation. The system moves away from a simple hierarchy and one centralised court with the universal power of last word on the question of legal validity. Constitutional disagreement is defined by constitutional competition and overlap which emphasise interconnectedness, interaction, accommodation, horizontality and hierarchy of legal systems. Both European and national law have a valid claim to an autonomous primacy. Result of disagreement will be always negotiated which enhances identification with the common good, promotes participation and changes centuries-old legal thinking, universalises judicial reasoning and pushes the perspective of the constitutional court(s) well beyond constitution. European constitutional discourse is drawn along the lines of anticipation of the disagreement, its management and overlap of law and politics. Constitutional courts are forced to learn and rediscover themselves and cease to act as the guardians of absolute truths, but accept and embrace change. This calls for a novel model, a constitutional court: the one which speaks instead of remaining silent, which puts forward its understanding of Europe instead of stepping back, and which is ready to not only listen but also acknowledge arguments of others. Such court manages its own judicial policy by engaging in a dialogue in which it presents its arguments, accepts others’ point of view and shows readiness to cede authority to better-placed courts.

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Cite as: Tomasz Koncewicz, Constitutional Courts as Frontier Institutions in the European Constitutional Space: On the Road towards “Van Gend En Loos 2”?, 2 Ind. J. Const. & Admin. L. 1-25(2018).


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