Paul Scholten Centre Colloquium with Nik de Boer (European Law UvA). Discussant: Carla Zoethout (Constitutional Law UvA).
Research colloquium, organised by the Paul Scholten Centre. This colloquium is open to all, no registration required.
A copy of the paper can be obtained via firstname.lastname@example.org.
Several national constitutional courts in the EU have claimed the power to review and contest EU law on the basis of their national constitutions. As veto-players within their respective national legal orders, constitutional courts exert a potentially powerful influence over the constitutional development of the EU. Legal scholars have often justified national courts’ review and contestation on the ground that it serves to facilitate and enhance the democratic legitimacy of the EU political process. However, prominent objections regarding the democratic legitimacy of judicial review of legislation in the domestic context, cast doubts on the assertion that national constitutional courts have an important role to play in countering the EU’s democratic deficit. The objection that judicial review is undemocratic insofar it involves the power to strike down legislation adopted by democratic majorities, would, on the face of it, also apply to judicial review by national constitutional courts of EU law.
This paper brings the scholarly discourse regarding legitimacy of judicial review in the domestic context to bear upon the assessment of the democratic legitimacy of national constitutional courts’ decisions in the EU context. It specifies the normative grounds on which, if at all, it is democratically legitimate for national constitutional courts to review EU law. There are, I argue, two grounds on the basis of which such judicial review may be considered democratically legitimate. First, national courts could have a role to play in remedying deliberatively deficient (‘prior’) political decision-making. Thus, national constitutional courts might serve to ensure the consideration of constitutional issues previously insufficiently taken into account in the political process. Second, the national courts’ intervention may be democratically legitimate where it directly leads to structural democratic improvements of the EU’s political process. Thus, judicial interventions might serve to enhance the role of national parliaments in EU decision-making and legislation. However, whether national constitutional courts in fact fulfil these roles is an open and empirical question. Indeed case studies on the role of constitutional courts in the domestic context warrant scepticism as regards the contributions of national constitutional courts in improving democratic deliberation.
Nik de Boer is a PhD researcher at ACELG. He works on a dissertation about the democratic legitimacy of judicial resistance by national constitutional courts to European integration. The project is supervised by Prof. Deirdre Curtin, Prof. Leonard Besselink and Dr. Ingo Venzke.