INHERENT RISKS OF THE PLURALIST STRUCTURE: USE OF THE CONCEPT OF NATIONAL CONSTITUTIONAL IDENTITY BY THE POLISH AND CZECH CONSTITUTIONAL COURTS

The jurisprudence of the ECJ and national constitutional courts related to the national constitutional identities of the Members States fits into the framework of constitutional pluralism as a modus vivendi of the European legal order. This paper focuses in particular on the recent judgments of the Polish and Czech constitutional courts. One might perceive a general tendency in the process of EU integration for EU policies to be increasingly dominated by national agendas. As a result, EU policies might be held hostage by the interests of the stronger Member States. These tendencies increase the tensions inherent in the pluralist structure of the relationships between legal orders in the European arena. Constitutional identity is yet another concept used in this debate about ultimate authority. Pluralism assumes that the courts will compete over ultimate authority and will try to use such a concept ‘to their advantage’. With regard to article 4 (2) TEU, the ECJ seems to have more persuasive power than the Polish and the Czech constitutional courts. However, the jurisprudence is certainly not settled yet. The interweaving of national, European and international law creates the need to examine constitutional identity expressed inside and outside the EU. Pure heterarchy based on a balance of powers and protection of national constitutions as well as constitutional courts comes with the inherent risk of leading to the logic of ‘might is right’. On the other hand, even though one could identify cases where the judicial actors seem to miss an opportunity to improve the protection of individual rights or where they reveal a troubling eagerness to ensure their own authority, such risks are an idiosyncrasy of the system of constitutional pluralism. The theory of constitutional pluralism has the ambition of improving the quality of judgments and creating a framework for fruitful interaction of competing visions of Europe. Single judgments that may be open to criticism do not bring into question the viability of the whole framework, but it is nonetheless important to be aware of the systemic risks

The Writing is on the Wall:Proportionality of Border Controls within the Schengen Area

On 6 October 2021, Advocate General (AG) Saugmandsgaard Øe published his Opinion in the joined cases C-368/20 NW v Landespolizeidirektion Steiermark and C-369/20 NW v Bezirkshauptmannschaft Leibnitz. As discussed in our previous blog post outlining the facts and the legal questions of the case, the cases concern the legality – and limits – of introducing border controls within the Schengen Area. Six Schengen countries (Germany, France, Austria, Denmark, Norway and Sweden) have reintroduced border controls over the past years. If the Court of Justice of the European Union (CJEU) were to follow the AG’s Opinion, they would need to seriously rethink their practices in this regard. New evidence-based procedures and serious reasons, capable of passing a proportionality test, would be necessary to introduce border controls within the Schengen Zone

A new application of oxyreactive thermal analysis in marine algological studies

This is a preliminary study of the application of oxyreactive thermal analysis in algological investigations. Several species of Chlorophyta, Phaeophyta, Rhodophyta and Zostera marina taken from different stations off the southern Baltic coast have been studied. It is pointed out that oxyreactive thermal analysis can be used for taxonomical investigations in order to establish the systematic membership of certain species of algae based on fragments of thallus. This method can also be applied in order to establish environmental specificity by differentiating the chemical composition of certain species. It is also suitable for assessing biochemical differentiation among the various parts of the thallus

Schengen Restored:The CJEU Sets Clear Limits to the Reintroduction of Internal Border Controls

On 26 April 2022, the Court of Justice of the EU (CJEU) rendered a ruling in joined cases C-368/20 NW v Landespolizeidirektion Steiermark and C-369/20 NW v Bezirkshauptmannschaft Leibnitz stating that Member States of the European Union (EU) can re-introduce border controls within the Schengen Zone only under strict conditions. The Court has stepped up as a guardian of the Treaties protecting free movement of people without controls at the internal borders of the EU as “one of the major achievements of European integration” (para 65 and 74). At the same time, the Court has left some aspects of the application of these strict new rules unclear, leaving room for the European and national executives to exercise their function and fill in the blanks