We can also witness that since the 1970s, but especially in the past decade, constitutional courts or equivalent judicial forums of Member States have been involved in reviewing union law based on the provisions of national constitutions. What potential roles do national constitutional courts play in the development of the EU law in your view?
I think we have a triangle of fundamental rules: the national constitutions, the European Convention on Human Rights, and the European Union's (primary) law, including the Charter of Fundamental Rights. We should see them in a more horizontal way and not so much vertically. The problem I see is that when the CJEU makes a judgement in a preliminary ruling procedure on human rights issues asked by any regular court, the highest national courts (Constitutional courts or Supreme courts) no longer have a chance to be heard in the case and on asked question. I do not think it is the most suitable for the legitimacy of the European Union. The CJEU, of course, has always liked to “talk” with ordinary national courts since the very beginning in the ‘50s. Logically, this is in the very essence of the preliminary ruling procedure (the EU law shall be correctly (directly) applied as soon as possible, not waiting to the last possible domestic instance of court procedure. However, when it comes to the most important issues, such as, for example, national identity, the highest national courts should also be involved in the decision-making process. So, I think we need to modify the design of the preliminary ruling procedure to a certain extent. When it comes to this kind of question involving constitutional values, national courts should be given opportunities to be part of the proceeding of the CJEU. It is quite ambivalent that the European Commission and national governments have the right to intervene in the CJEU proceeding but the highest national courts, who would otherwise have the final words in these matters at home, do not. This would not even require the modification of the Treaties and would increase dramatically the legitimacy of these rulings, which refer to the core questions of the Member States (i.e. not to every preliminary ruling question).
There will always be different approaches and understandings as our continent is so colourful. I do not think that we can imagine that everything will be united. We shall respect diversity. Nobody is talking anymore about being “united in diversity”, as this was the case decades ago. This was a motto of the EU.
The bigger we are, the more we should respect the differences.
Defining these differences involve being heard by the highest courts in Europe. Namely, it might be that some differences are not acceptable to common European standards, and political consequences might follow. But, the involvement of the highest courts to be heard would raise the legitimacy of a decision (that, for example, certain Member States would not like).