What it expects is obedience not dialogue.
This is not the way the CJEU can deal with national constitutional and supreme courts. We do not want a special treatment but if there are arguments that are perhaps not very comfortable for them, and which might cause tensions within the CJEU it has to deal with them in a fair, honest and open way.
National judges are generally required to be up to date and continuously learn EU law. I am wondering weather we can expect EU judges to learn about the national constitutions as well as about the jurisprudence of constitutional courts.
I absolutely share your view. I think this should be a necessity as far as the core structures of constitutional law are concerned.
Europe will not work with a top-down governance system.
Thus, EU institutions have to be aware of the differences and peculiarities if they want to be successful. In the same vein, the European Commission would be better advised if it knew a little bit more about what is happening in the Member States and their legal orders. At present it seems to be very self-referential. Legal and constitutional comparison is an indispensable tool to apply EU law. Therefore, EU lawyers and people who deal with the law of the European Union should speak more than “bad English”. Every European Union employee should speak at least three languages and they should understand more how the different Member States work. Otherwise fragmentation, reluctance and hostilities in the Member States will grow and ultimately put the European Union as such in danger. Europe shall be successful but not as a foreign power that rules upon us.
How could public law reforms such as the concept of the “reverse” preliminary ruling might enhance or solidify the European cooperation in the future?
The idea is that Article 4 paragraph 2 of the Treaty on the European Union already entails the duty of EU institutions to respect national identity. As I´ve mentioned earlier, in a legal sense constitutional identity at least in our country is the core of a broader national identity in a legal sense. Against this background the CJEU should not decide on its own poor knowledge of national constitutional law, on how it is to be interpreted or how it has to be dealt with.
It should instead ask the competent courts of the Member States in the same way as they do if they have to apply and interpret EU law.
I already mentioned the Egenberger case. The German Federal Labor Court had a very peculiar understanding of the special role the churches have to play as employers. They put forward this peculiar understanding in their preliminary request to the CJEU. The Constitution however entails provisions concerning church-state relationship and it is generally known, that the Federal Constitutional Court has decided at least thirty cases in his respect. The Federal government put this argument forward in the case, unfortunately without success. It would have been quite reasonable had they asked us, especially as they did not know what was right. A potential conflict could have been avoided this way and this can be the case in a lot of other procedures too. Nonetheless I do not think it is likely that the Conference will pick this idea composed as it is. In addition, the CJEU doesn´t have a major interest in a sincere cooperation. However, if they want to do something good, they should really think over this possibility.
The 15th facultative protocol to the European Convention of Human Rights entered into force throughout the summer. That protocol emphasized the role of subsidiarity and the margin of appreciation. Would it be a good reform step if the European Court of Human Rights would become a kind of “last resort” court after the CJEU as the Treaties require?
The principle of subsidiarity is also mentioned in the Treaty on European Union. I think that the approach of subsidiarity of the European Court of Human Rights would be a good example for the Luxemburg court to follow. As you said, we do not even have to modify the Founding Treaty to achieve this, everything is there already. Nevertheless, we should not believe in fairytales.
This is about power and the CJEU is not interested in limiting its power.
That is human, and every institution tends to enlarge their scope of influence. This is why people in 18th century detected the separation of powers as a good instrument to contain too much eagerness.