European Relationality in the European Legal Space: Country-Specific Mixtures within One European Style
SUMMARY: 13.1. Relationality in the European legal space: an Italian feature, or a European device? - 13.2. The Belgian Constitutional Court’s approach towards the European courts in 2016. - 13.2.1. The demand side for européanisation. - 13.2.2. Judicial encounters with European legal orders. - 13.2.3. European relationality at work in 2016. - 13.3. The Belgian Constitutional Court’s approach towards the European courts in the long-term. - 13.3.1. Respect. -
13.3.2. Pride. - 13.3.3. Resistance. - 13.4. Conclusion.
Relationality in the European legal space: an Italian feature, or a European device?
Has the Italian Constitutional Court (ItCC) developed a specific, Italian style of adjudication, labeled ‘relationality’? In her chapter, Marta Infantino substantiates this claim for the ItCC’s position towards the European Court of Justice (ECJ) and the European Court of Human Rights (ECtHR). She describes the ‘relationality’ of the ItCC within the European legal space as a combination of ‘pride, respect and resistance’: an emphasis on the autonomy of its own jurisdiction, respect for European law, and resistance where European law interferes too intensely with the values and traditions of the Italian legal system.
Is this, however, a typical feature of the Italian Constitutional Court, or a device of all Constitutional Courts within the European legal space? The latter seems more likely, as studies have already revealed that both the ECHR and EU law play an important role in the case law of various European constitutional courts. These courts have in common, as Infantino admits, that they are all confronted with the same problem of compromising between facilitating the implementation of EU and ECHR law in the national system, on the one hand, and protecting constitutional norms and values on the other. This compromising will sometimes result in a more deferential attitude, at other times in a more opposing one. In this mixture, the main accent may differ. Hence, some Courts, such as the German and some Central and Eastern European Courts, are at the forefront of a more oppositional movement, while others adopt a more ‘Europe friendly’ posture. Often, however, the most eye-catching judgments are referred to, whereby one more ‘rebellious’ judgment may outshine a more common stream of compliant judgments.
Where the emphasis is put may differ from one country to another. Within one country, this emphasis may evolve over time and may be different for relations with the ECJ compared to the ECtHR. Various factors may explain these differences within one legal system and across borders. For example, courts in Central and Eastern European countries are often Strasbourg-friendly because, as post-authoritarian systems, they adopt standards for human rights protection which have been lacking in their own legal order; whereas, having only recently regained their sovereignty, they tend to be more critical towards the ECJ’s efforts to establish EU supremacy. Whether the Constitutional Court may rely on its own legacy is also a matter of age. For example, the Belgian Constitutional Court, established only in the 1980s, does not hesitate to refer to the ECtHR to give legitimacy to its decisions, whereas the German Constitutional Court, having developed a high standard of fundamental rights protection throughout many decades, is more hesitant to do so. Attitudes are also case-specific. For example, it is reported that even the most Strasbourg-friendly countries turn against the ECtHR as soon as the latter interferes in sensitive social or cultural issues.
Confirming that all European Courts display an attitude of ‘relationali-ty,’ combining three different approaches, and explaining what determines the emphasis on ‘pride,’ ‘respect,’ or ‘resistance,’ require a comprehensive study, with empirical, quantitative and qualitative data over time for a large set of legal systems. Therefore, this article is confined to placing another example next to the Italian case study, to demonstrate that the ‘relationali-ty’ approach is not unique to the Italian Constitutional Court. I select the Belgian case study for two reasons. One reason is that I have a large set of data at my disposal. For another project, we have coded all (final) judgments of the Belgian Constitutional Court (BCC) in the period from 1985 (when the first decision was pronounced) until the end of 2015. Infantino analyses only one year, 2016, which is no longer recorded in our database. For the sake of comparison, I applied her analysis to the Belgian Court’s decisions in 2016, but, as this is merely a snapshot, I will situate the results in the larger set of data, and with reference to earlier studies on the BCC’s position towards the European Courts. Secondly, I selected the BCC because it is commonly regarded as a very Europe-friendly court. Nonetheless, if my expectation is that all European Courts show an attitude of relationality combining the three different approaches, then even the Belgian Constitutional Court should display a more critical attitude in specific cases.
-  E. MAK, judicial Decision-making in a Globalised World: A Comparative Analysis of the Changing Practices of Western Highest Courts, Oxford, Hart Publishing, 2013.
-  2 an Court of Human Rights are identified in P. POPELIER, S. LAMBRECHT, K. LEMMENS, Introduction: Purpose and Structure, Categorisation of States and Hypotheses, in P. PoPE- 3 LIER, S. LAMBRECHT, K. LEMMENS (eds), Criticism of the European Court of Human Eights, Cambridge, Intersentia, 2016, 10-20. 4 Ibid at p. 16.
-  According to M. CLAES, The National Courts’ Mandate in the European Constitution, Oxford, Hart Publishing, 2006, 641: it is ‘the least protective and most communautaire of all constitutional courts’. 2 Cass. 27 May 1971, Pas. 1971,1, 886.