PP991
Analítico de Periódico
BARSOTTI, Vittoria
"External relationality" : new colors for the european model of constitutional justice / Vittoria Barsotti
Annuario di Diritto Comparato e di Studi Legislativi, v.8 (2017), p.67-90
DIREITO CONSTITUCIONAL, DIREITO CONSTITUCIONAL COMPARADO, CONTROLO DA CONSTITUCIONALIDADE, TRIBUNAL CONSTITUCIONAL
If today we look at the legal map of Europe, we can easily see that Constitutional Courts have grown in number and importance. The success of Constitutional Courts mirrors a more general constitutional judicialization of Europe. The judicialization of Europe is in part evidence of the “cosmopolitan turn in constitutional sources” which is, at the same time, cause and product of a “world community of courts” – a world where comparative law arguments are becoming “inevitable”. The monopoly of constitutional review of legislative acts by a special court, staffed with judges different from ordinary ones, lies at the core of the “continental European model of constitutional adjudication”. Other features catch presently the essence of the model. Different countries provide for various ways in which a constitutional question can reach the Court, but the incidental method is becoming the most frequent and relevant. The great majority of European Constitutional Courts have developed a nuanced panoply of decisions with different force and effects visà- vis the other branches of government. Besides reviewing the constitutionality of statutes, European Constitutional Courts are generally assigned broad jurisdiction, resolving, for instance, conflicts between the central government and subnational entities, adjudicating presidential impeachment cases, hearing electoral disputes. In spite of the extended array of competences, European Constitutional Courts tend to favor their role as guardians of fundamental rights and liberties. The protection of fundamental rights in Europe does not belong exclusively to national Constitutional Courts but is partly shared with the European Court of Human Rights and the European Court of Justice also fits in the picture. The result is a multileveled system for the protection of fundamental rights. Within such a complex and necessarily networked environment, how Constitutional Courts are related and communicate among them and with their supranational counterparts is essential. “Relationality”, more precisely “external relationality”, defines the engagement of national Constitutional Courts with the European legal order both at the horizontal level (with other national courts) and at the vertical level (with the ECJ and the ECtHR). Relation and communication may occur in many different formal or informal ways, such as, for instance, preliminary references to the ECJ, the more or less binding force recognized to the case law of the ECtHR, the explicit or implicit cross references between national Constitutional Courts, the participation of constitutional judges to the Conference of the European Constitutional Courts. Relationality matters and is slowly becoming a new feature of the continental European model of constitutional adjudication. On one side, a dialogical attitude is presently common to many Constitutional Courts; but on the other side, the measure of the attitude, the amount of relationality, can also be considered as a new marker useful to classify the various systems of constitutional justice at work in Europe. A colored spectrum can be imagined where at one end deep purple represents the more relational and dialogic Constitutional Courts, and at the other end lilac represents the less relational and more individualistic Constitutional Courts. Defining the scale, the various elements of the communicative nature of Constitutional Courts should be taken into account and the historic development should also be kept in the background. A positive future for the European model of constitutional adjudication should be associated with much deep purple, which does not necessarily entail giving up national constitutional identity. A relational attitude, while favoring dialogue and cooperation, can also serve defending national values, and helping constitutional courts to remain central within their own legal order. Taking a broader perspective and leaving aside the fear for a “gouvernement des juges” and the negative aspects of a possible “juristocracy”, the success of courts can be considered a means to reach justice not only at a local level but eventually at a universal level. In the present crisis of the idea of globalization and given the difficulties facing a “more perfect Union”, we should probably go back to a positive approach that entails taking seriously into account, among other things, a deep relational attitude of judicial bodies.