Judicial conflict and the reconfiguration of control in the EU constitutional order
This project posits that one important way of the EU’s reconfiguration is the conflict between national and EU courts. According to a well-established narrative, the Court of Justice empowered national courts by making judicial review central to the enforcement of EU law. From the competence and control perspective, the Court of Justice (as the governor) granted to national courts (as intermediaries) the competence to enforce EU law, controlled through the preliminary reference procedure. National courts are perfect intermediaries based on their expertise, legitimacy, and operational capacity. Nonetheless, this setup carried great risks. Member States are characterised by great diversity, and while some national courts took up the role of the intermediary, others contested that setup and sought to regain control.
Member States are characterised by great diversity, and while some national courts took up the role of the intermediary, others contested that setup and sought to regain control. These dynamics loom large in criminal law. An area with a high path-dependency, it is characterised by diverse traditions of procedural and substantive criminal law. In a borderless market, however, the EU extended the logic of mutual recognition to states’ acts of coercion, which raised new issues for fundamental rights protection. Faced with such immense changes, ordinary national courts are extensively submitting preliminary references in this area, with courts from Member States who joined the EU in 2004 onwards being particularly active.9 While the literature deals extensively with EU criminal law, it remains highly specialised and does not focus on the effects of criminal law regulation on the nature of the polity as such. Likewise, diverse national criminal law systems have not been methodically studied. Criminal law is thus a particularly salient area for studying under-researched judicial power dynamics: it is of great relevance to the EU as a whole but deeply embedded in national constitutional traditions.
In short, this project asks: In criminal law, how do ordinary national courts contest and transform supranational judicial control in the EU? Its academic contribution is to map competence-control trade-offs in judicial contestation by the diverse and under-researched world of ordinary national courts. First, the project will seek to show that competence-control trade-offs in the judicial realm materialise through claims of control by the Court of Justice (to say what EU law is), and the contestation, by national courts, of their competence of enforcement. Second, the project will demonstrate the empirical variety of those conflicts in criminal law; the effect that the constitutional and criminal law backgrounds of national courts have on the response of the Court of Justice; and the resulting trade-offs between competence and control. The reconfiguration of vertical power-sharing shaped by constitutional variety of national courts has not been studied before. It is expected that courts with different backgrounds will exhibit diverse claims to control and accordingly produce varied outcomes at the EU level.