3 - From Judicial Dialogue Towards Constitutional Spill-Over? The Economic Analysis of Preliminary Reference Procedure and the Application of the EU Charter of Fundamental Rights

Summary

INTRODUCTION

The construction of governance structure based on judicial activism of the Court of Justice of the EU (European Court, ECJ, CJUE) has been explained as judicial coup d’état, where the European Court created the doctrine of the primacy of the European Communities law.2 The question arises whether the spill-over effect may play an adverse role of an obstacle in integration since the Member States, and especially their courts, may adopt a similar set of doctrines, reasoning, concepts and legal instruments in order to diminish the effect and scope of the primacy of the EU law doctrine.3 This position has been taken by some intergovernmental lists, who claimed that states remained principal actors on the European scene and remained ultimate decision makers. This position has been unsuccessfully defended by different authors. It has been suggested that the discretion enjoyed by the ECJ has not in fact been curbed by any successful strategy adopted by any Member State.

It seems, however, that things have been changed with the enlargement and the creation of platform for the horizontal judicial discourse and coordination of state driven policy concerning the minimization of the discretion successfully having been controlled by the ECJ. W. Sadurski has been successfully demonstrating how the constitutional courts in Central Europe (CE) have limited the application of the EU law by rejection of the full application of the doctrine of the primacy of the EU law. The enactment of the Treaty on Functioning of the European Union resulted with many judgments of constitutional courts in Member States in which the concept of sovereignty and the doctrine of sovereign powers played an important role. The paper will thus concentrate on two issues, namely on the difference in the meaning of the concept of sovereignty and its application by the constitutional courts in Poland and Hungary and the position of the constitutional courts within the dynamic constitutional setting, embracing the legislature and the other courts.

Two waves of judgments by the national courts in CE seem to be conspicuous in this respect.