KONCEPCJE PLURALIZMU PRAWNEGO A PROBLEM USTALENIA OSTATECZNEGO STRAŻNIKA LEGALNOŚCI PRAWA W UNII EUROPEJSKIEJ
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Date
2008
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Wydział Prawa i Administracji UAM
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JURIDICAL PLURALIZM AND THE QUESTION OF FINAL ARBITER IN THE EUROPEAN UNION
Abstract
The article tries to look at the problem of the final arbiter of the legality o f legal acts enacted in
Europe from legal pluralisms perspective. The question whether the ECJ or the national
constitutional courts are legitimized bodies to control the constitutionality of the community law has
been considered as being a controversial issue for many years. The ECJ states that it is the only body
which has the competence to interpret the Community law, but it does not have the competence to
interpret the national laws provisions. On the other hand, the national constitutional courts are
legitimized to control the constitutionality of the national law but according to the ECJ they do not
have competence to control the Community legal acts. The article analyzes chosen theoretical
conceptions which, despite many differences represent the current of legal pluralism. All the authors
of the described theoretical models analyze the problem of the final arbiter o f the constitutionality in
Europe with the assumption of a pluralistic nature of the European legal space which is composted
from many independent, autonomous, but simultaneously co-operating legal systems. All described
conceptions stress the opened character o f the quis custodiet question. They propose coexistence of
many internal perspectives” of the European legal order (C. Richmond), they stress the necessity of
establishing a community of national courts” that would have influence at the interpretation of the
European constitutional law (M. Maduro) and they point out the need to make some compromises
between the ECJs case-law and the stand-points of national constitutional judiciary (M. Kumm).
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Ruch Prawniczy, Ekonomiczny i Socjologiczny 70, 2008, z. 1, s. 57-72