Beyond the “European model” of constitutional adjudication

The European legal space does not know one European model of constitutional adjudication. Rather, it embraces almost all possible institutional set-ups of constitutional adjudication. According to Article 4(2) TEU, the equality of the Member States’ constitutional orders comprehends the plurality of mechanisms that protect the constitution’s normativity. These institutional and procedural divergences clearly impact on the dialogue between each constitutional court and the European courts. To understand the dynamics of these dialogues, legal scholarship has to consider the specific features of each system of constitutional adjudication and the context in which it operates.

The Portuguese Constitutional Court in its context

For a long period, EU law was seen as separate from constitutional law, the primary province of ordinary courts. The underdevelopment of Portuguese constitutional caselaw regarding EU law can be partially attributed to procedural and doctrinal specificities. The normative and institutional impact of EU integration was not fully realised at the constitutional level until the eurozone crisis hit. Amid a normative conundrum and pressed by the urgency of the bailout timeframe, the Constitutional Court preferred to avoid dealing with a possible conflict between EU and domestic constitutional law and rejected any European dimension to the austerity conflicts it adjudicated. This “voluntary displacement from EU law” has persisted until recently. In 2020, the Court has finally engaged explicitly with EU law and the European Court of Justice showing that it now clearly wishes to express its voice in the European circuit of adjudication.

The Spanish Constitutional Court in its context

Since its creation in 1980 the Spanish Constitutional Court has satisfactorily played a major role in the Spanish institutional framework and in the political scenario, partly because of the extension of its powers and procedures. But in the last 15 years approximately the Court’s powers, and above all its political relevance and auctoritas, have diminished. The presentation will try to point out how and why – voluntarily or not – the Court has somehow taken a step backwards (except when dealing with the Catalan question, for the Court had to take the stage because it was openly used for political purposes). Apparently, or implicitly, it has embraced some kind of minimalism, as if it wanted to revive the bickelian passive virtues – virtues à la Spanish which are actually closer to defects.

The French Conseil constitutionnel in its Context

In many ways, the Conseil constitutionnel continues to be an exception among constitutional courts in Europe, especially when it comes to its approach to international law in general and to European law in particular. Its approach is founded on the ‘law-centered’ tradition together with, albeit somewhat paradoxically, its inherent task of enforcing the French constitution, from which it derives its legitimacy. In this regard, the Conseil constitutionnel has found itself largely on the fringes of the French judicial system rather than a central pillar, while also marginalized by European and other higher domestic courts. The purpose of the presentation is to determine whether the introduction of a specific, concrete review of constitutionality (question prioritaire de constitutionnalité) ten years ago has altered the place of the Conseil constitutionnel within the overall judicial architecture, and whether its legitimacy may be strengthened through further engagement with European law.

The Italian Constitutional Court in its context

The role of the Italian Constitutional Court has shifted gradually from that of a guarantor of the values to a body for protecting fundamental rights and reviewing the reasonableness of the balances struck between them, as asserted on all levels, whether national or European.
The importance of context and the search for legitimation are clearly demonstrated by the re-elaboration and partial rejection, from judgment no. 269/2017 onwards, of the doctrine famous in Europe as the Simmenthal case and in Italy as the Granital case. The Italian Constitutional Court provides a very significant example of the tendency towards a so-called re-centralisation of powers. The Court claims, first of all, the need for the legal system to be capable of eliminating, with erga omnes effect, any legislation found to be unconstitutional that diffuse review by the ordinary courts, in the name of the primacy of EU law, has only disapplied (and thus not referred to the ItCC).