The jurisprudence of constitutional conflict in the European Union

Thesis

The aim of the thesis is to address the jurisprudence of constitutional conflict between the Court of Justice and national courts with constitutional jurisdiction. It seeks to determine how the principle of primacy of EU law works in reality and whether the jurisprudence of the courts under analysis supports this concept. In so doing, the goal is to determine if the theory of constitutional pluralism can explain and guide the application of the principle of primacy of EU law in the jurisprudence of constitutional conflict.

The analysis has been carried out on two levels. First, by exploring sovereignty claims by the courts under analysis, as well as reconciliatory vocabulary they employ to manage and contain constitutional conflict. Second, by further studying the three areas of constitutional conflict – ultra vires review, identity review, and fundamental rights review – to provide more nuance in the analysis of the way the Court of Justice has expanded the self-referential system of the Treaties; the different limits that constitutional adjudicators have placed on the principle of primacy as a result; and what possible solutions they envisage in the event of a constitutional conflict.

All the courts under analysis have employed the vocabulary of mutual respect and self-restraint as principles guiding the resolution of constitutional conflict. Constitutional conflict is managed through incremental and permanent contestation and accommodation of their opposing claims to sovereignty (the auto-correct function of constitutional pluralism) that results in the uniform interpretation and application of Union law, but keeping in line with conferral as its defining principle. The analysis demonstrated the existence of a heterarchical constellation – the potential of all the courts involved for being ranked in a number of different ways at different times – grounded in mutual respect and self-restraint.

Authors: Bobić, A

• DOI: 10.5287/ora-6rbg96wzd
• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Keywords: European Union Law; Constitutional Review; Constitutional Law; Constitutional pluralism; Judicial Dialogue; Constitutional Theory
• Subjects: Law