Supremacy of EU law and the jurisprudence of constitutional reservations in central Eastern Europe and the Western Balkans : towards a holistic constitutionalism

Defense date: 11 June 2010Examining Board: Monica CLAES (University of Tilburg), Bruno DE WITTE (EUI), Wojciech SADURSKI (Supervisor, former EUI and University of Sydney), Marek SAFJAN (European Court of Justice, Luxembourg)The thesis explores how the principle of supremacy of EU law has been construed by the case law of constitutional courts of new member states in Central and Eastern Europe (CEE). The thesis analyzes the jurisprudence of constitutional reservations against the background of CEE countries as political entities with a regained sense of nationhood, ethnos and sovereignty and, in the light of a pattern of powerful and activist constitutional courts which have appeared willing to engage in domestic sensitive issues. Then, the interaction between national (constitutional) law and EU is transferred in the context of pre-accession adaptations in the Western Balkans, by analyzing the path towards Europe of Croatia and Albania. The thesis suggests that the jurisprudence of constitutional reservations in CEE often replicates that of other powerful constitutional courts in old member states, although it appears to be more receptive and less sceptical towards the unconditional supremacy of EU law. The thesis puts forward the idea of 'holistic constitutionalism' understood as the full commitment of national and EU institutions in achieving the aims of European integration on the basis of the treaty mechanisms, substantive guarantees and the common constitutional principles which are at place in Europe. The share responsibility of integration and adherence to common agreed constitutional principles among political actors, national governments, national parliaments, EU institutions and national (constitutional) courts would lead towards a less conflictual relationship between EU law and national constitutional law

Constitutionele Hoven in Centraal en Oost Europa en hun Houding ten opzichte van Europese Integratie

In the first years after the fall of communism, constitutional courts in Central and Eastern Europe undertook a crucial role in the political, economic and social reforms of their respective countries. As in other European countries after the Second World War, these courts in CEE were seen as factors of democratization whose main task was the observance of constitutionalism and the rule of law. After the first years of judicial activism which were mainly related to internal reforms and fashioning of a new democratic system, these courts turned into important actors of the European integration process, by rendering landmark decisions related to the interaction between their national legal order and European law. This paper deals in particular with a series of decisions in the context of national law-European law relations, by paying specific attention to the reception by these courts of the principle of supremacy of European law. The main finding of this paper is that constitutional courts of CEE have taken quite an equilibrated stance towards European integration: generally speaking, their rhetoric is characterized by a Euro-friendly discourse in the pre-accession period which, after the enlargement was complemented by a set of controlimi generally derived from their own constitutions and well-established constitutional traditions

Avoiding Public Backlash: Enforcing Rule of Law in the European Union

Effective enforcement is essential for international cooperation. Accordingly, the European Union (EU) has developed a number of formal tools for enforcing its laws and policies in the members states. The application of these tools, however, has been slow, timid and uneven. One of the possible reasons for this is the fear that enforcement by supranational institutions (the Commission and the Court of Justice of the EU) will provoke public backlash in the member states targeted by sanctions. Systematic empirical evidence for such effects of enforcement is, however, lacking. This paper develops hypotheses about the factors affecting the perceived legitimacy of enforcement actions. The hypotheses capture the possible influence of procedural fairness, descriptive norm prevalence, and the likely effects of the sanctions on the future of the EU. These hypotheses are tested with a survey experimental design administered to a nationally-representative sample (N=1,200) in Poland. The context of the study is the enforcement of rule of law, and the focus is on the substantial financial sanctions imposed by the EU with regard to judicial independence in particular. The results show that the perceived legitimacy of the enforcement actions is strongly related to exclusive national identity, the perceived importance of the rule of law as a norm, and partisan affiliations. We find some evidence that providing information about the prevalence of public support for judicial independence in the country increases significantly the perceived legitimacy of enforcement actions. No evidence is found about possible effects of information about Polexit, future deterrence effects of the sanctions or their procedural fairness or unfairness. Altogether, these results suggest that the perceived legitimacy of enforcement actions is very hard to be influenced when the issue at stake is relatively salient and politicized

Enforcement and public opinion: the perceived legitimacy of rule of law sanctions

The EU has powerful enforcement mechanisms to curb democratic backsliding and support the rule of law in its member states. While (the threat of) enforcement is necessary, sanctions might be difficult to accept as legitimate when they hurt a citizen's country. We study the perceived legitimacy of EU enforcement actions. We develop hypotheses about the influence of national identity, party support, procedural fairness, descriptive norm prevalence, and the likely effects of the sanctions on the future of cooperation. These hypotheses are tested with a survey experiment administered to a nationally-representative sample in Poland. The focus is on the substantial financial sanctions imposed by the EU concerning judicial independence. The results show that exclusive national identity, the perceived importance of the rule of law, support for European integration and party support are strongly associated with perceived legitimacy. Providing information about the prevalence of public support for judicial independence in the country increases significantly the perceived legitimacy of enforcement actions. We find no evidence for effects of arguments about Polexit, future deterrence effects of the sanctions or their procedural (un)fairness. EU sanctions might not lead to further backlash among the domestic public, but they are unlikely to generate public pressure for reforms.</p