CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ DISTANCE BETWEEN EU LAW … 1. The Member States act as the EU’s agents, 2. They (only) act as agents when they implement EU law ) are very hard to reconcile when it comes to the Charter and issues of fundamental rights protection in the context of Member States’ constitutional court procedures. Here, we can identify historical or evolutionary reasons related to this cumbersome challenge, but we should be aware of some systemic challenges as well. 81 • From the perspective of evolution, the reason behind the volatile penetration of the Charter into national constitutional case law is simply connected to the fact that the Member States normally do (did) not act as agents of the EU (therefore they are not mindful of the issues of membership, duties raising from it, the impact of EU law etc.) when they create(d) constitutional courts and enact(ed) the relevant procedures for the protection of the content of the national constitution, including fundamental rights. Another fact is that Member State constitutional courts are ‘used to’ exercising only those competences (procedural constitutional law) and applying mostly those standards (material constitutional law) that have been afforded to them in the national constitution and national constitutional procedure laws. Protections afforded to fundamental (human) rights by the EU (by the Charter) and other international organizations (and instruments) mostly might inform this decision- making, by reinforcing majority, dissenting, or concurring arguments primarily rooted in the national constitution, and in national constitutional arrangements. • From a perspective of influence over the national legal system, external sources (international treaties, possibly EU law) enter the ring of constitutional review depending on the approach of the constitutional system to these sources and depending on the chosen model of review. In monistic states, international treaties can be directly part of the constitutional review, in dualistic states their content is conveyed through implementation standards. Another difference is the choice of the model of a centralized or decentralized (diffuse) constitutional judiciary to control the compliance of national law with international obligations. Special regimes may even result from the requirements and approach towards the applicability of external sources set by the constitutional courts themselves. 82 Member States have a relatively wide discretion in the choice of instruments to apply the Charter in their practice. However, they must respect the principles regulating national procedural autonomy, namely the principle of effectiveness and equal treatment, and in addition, they must adhere to the principle of effective judicial protection under Art. 19 (1) TEU. 83 All the issues raised above arise in terms of the constitutional procedures of the HCC. Regarding constitutional review, such a characterization begs the question whether a national 81 Jan Komárek adds to these philosophical/jurisprudential arguments in relation to (non)usefulness and (non) willingness of national constitutional courts to apply the EU norms in their proceedings. He argues that the constitutional courts and their interconnectedness with the national catalogues as a result of deliberative democratic arrangements and implicit social theory renders them special. The reason for this is that these aspects are not given (or at the very least are open to some doubts) at the supranational level. See: KOMÁREK, J. Why National Constitutional Courts Should Not Embrace EU Fundamental Rights. In S. WEATHERILL, S.; DE VRIES, S.; BERNITZ, U. (eds.) The EU Charter of Fundamental Rights as a Binding Instrument. Oxford: Hart, 2005, pp. 75-92. 82 For a detailed analysis, see DE VISSER, M. Constitutional Review in Europe. A Comparative Analysis . Oxford: Hart Publishing, 2014, 484 p. 83 See C-64/16 Associação Sindical dos Juízes Portugueses , ECLI: EU:C:2018:117. MEASURING THE ‘EU’CLIDEAN

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