The Judicial Path to European Constitutionalism: The Role of the National Judge in the Multi-Level Dialogue

Abstract

The purpose of this essay is to reconstruct how the integration process of the international and supranational Charters on fundamental rights within the multi-level system is changing the essence of the identity of the judge as conceived by the traditional nation-state model. This evolution concurs to carve out a growing trend that sees the ordinary judge as a pivot player of a judicial path to the European integration process. Judicial implementation of the fundamental rights provided by both the Charter of Fundamental Rights of the European Union and the European Convention of Human Rights into national legal orders is nowadays the most significant test-bench. This process particularly brings into question two aspects of the traditional view of the role played by the judicial function in the nation-state. The first sensitive point regards the long-established way to conceive the illuminist idea of separation of powers, one of whose essential cores is the principle of submission of the judge to the primacy of statutory law, in which the states mostly tied to the civil law legal tradition are mainly rooted. Second, a process of sovereignty dilution calls into question the long-established conception of sovereignty in the modern state whose cornerstone is the legitimate claim of the nation-state to exert the sovereignty in an exclusive manner over its own territory. The multi-level integration process requires national judges to put into play new professional skills that are not necessarily part of their genetic heritage and to be able to manage the logic inherent to judge-made law systems. First, the ratio decidendi-oriented reasoning and the result-oriented approach characterising the epistemological approach of the European Court of Human Rights and the method of distinguishing on which it is grounded. Second, the para-legislative power of the European Court of Justice and the teleological-orientation of the EU legal order. Third, the cultural impact of both the European non-discrimination principle and the balancing test on the judicial practice. Forth, the impact of the principles of primacy of EU law and direct effect onto the traditional doctrine of the national sovereignty in the modern state.