CONSTITUTIONAL COURTS AS FRONTIER INSTITUTIONS IN THE EUROPEAN CONSTITUTIONAL SPACE: ON THE ROAD TOWARDS “VAN GEND EN LOOS 2”? (Tomasz Tadeusz Koncewicz)
The constitutional landscape of the European Union (EU) is being dominated by the overlapping consensus of constitutional courts which forms the heart of supranational adjudication in Europe with different interests, power struggles and jostling for better positions. Post-national law sees law as a never-ending discourse and conflict as written into the DNA of the system.
Dogmatic and exclusive “either … or “logic becomes untenable as hierarchy is highly divisive from the external perspective of plural systems which look for ways to coexist and operate and not simply cancel each other out. European integration shows how constitutional courts are forced to learn and rediscover themselves. They cease to act as the guardians of absolute truths, but accept and embrace normative change. This paper argues for a novel model a constitutional court: one which speaks instead of remaining silent, which puts forward its understanding of Europe instead of stepping back, and which is ready to not only listen but also acknowledge arguments of others. Such court manages its own judicial policy by engaging in a dialogue in which it presents its arguments, accepts others‟ point of view and shows readiness to cede authority to better-placed courts. Most importantly such court appreciates that giving way and stepping back now does not rule out winning and taking centre stage in the future. This is so because every court has an equal right to win in the constitutional disagreement. This approach moves the court away from traditional “negative legislator” towards court taking on the mantle of law – maker that contributes to the development, and growth of European constitution along domestic constitutional document. In short a court becomes a political player. It acts both as an author of the European constitution, and a constructive interlocutor for the Court of Justice. Such authorship defines the mandate of constitutional courts as „frontier institutions”. Only a court that is aware of its new frontier function stands a chance of surviving and keeping relevancy in the process of discursive European constitution – building which straddles national and supranational levels of governance.