The system of the protection of rights, i.e. national, international, and European rights in Europe is rather complex. The reasons for that are numerous. On the one side, national judicial systems are diversely regulated, and procedural sovereignty is preserved to a large extent. On the other side, rules stemming from the international and European levels are influencing the national legal orders. Therefore, national judicial systems, which are independent and autonomous, need to take that into account. In and of itself, this should not be a problem if international and European rules did not require priority application, meaning that national rules have to give them precedence. And even this would not be a problem, at least not a substantial one, if the basic legal frameworks that stem from the highest national acts - which in most cases are constitutions - were not in a certain way the door through which international and European rules enter the national legal systems. These doors open as soon as a State accesses to a certain international or European act (by a signature, and later on by a ratification) and even this - at this stage - should not cause problems.[1] In other words, we let a "guest" in our "house" because we share his viewpoints and attitude. We let him in because we trust him. The problems emerge when the viewpoints of the guest are not congruent with ours, when we have doubts, or when the guest is not acting in accordance with our expectations.
The present article is not typical, in fact it is far from the usual articles in which European constitutionality issues are analysed - not only is my style different, also the story itself is different. I will try to present a picture in which we can find the elements of the Europe of today and today's relations between the European courts, on the one side, and national courts, on the other. In this presentation, the protagonists are two guests who are welcomed by the master of the house and by family members. The first guest is the Court of Justice of the European Union (the CJEU), the second guest is the European Court for Human Rights (the ECtHR), the master of the house is an individual constitutional court (the CC), and the family members are the national regular courts. I am fully aware that this approach may appear striking. Even the starting point is questionable - namely, who really the guest is - is a Member State a guest in an international organisation or vice versa? I am not at all going to address this question and the readers are asked to not question this starting point either. It is irrelevant for the message that I would like to convey in the last part of this article. The main idea is to come to a conclusion as to how national constitutional courts can be involved in the search for the core values that stretch all the way from the national identity, on the one hand, to the core European values, on the other.
The topic mentioned above will be presented in the first part of this article that follows this short introduction. In the second part of the article, I will express some reflections regarding the mentioned relations in the Europe of today.
Usually, we treat guests with priority. We try to accommodate them even when they come without an invitation or with a demand or a list of wishes that they want us to fulfil. Moreover, we provide them full accommodation even when their requests come in silently, as if through the side doors.[2] Somehow, the first and the second guest entered the master's house that way.
However, as time passed by, more and more interpretations as to how the first guest interprets and understands his rules were necessary. The second guest also interpreted his rules and what the minimum is of what the master and his family members have to observe. What is more, the first guest preferred to talk not to the master of the house but to the other family members, who are also important.[3] At the same time, the first guest made it rather clear that it is not necessary for the family members to wait for the opinion of the master.[4] One can understand that it is easier for him to assert his viewpoints in front of the family members than in front of the master of the house.[5] It is not seldom that the other family members would rather talk to him than to their master. In contrast, the
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second guest uses a sort of dialogue in which he decides whether the master of house acted correctly. The same holds true for family members. The second guest listens to the master and there is a dialogue between the two; however, it is clear that he would like to assert his own viewpoints and that his interpretations need to be observed.[6]
It is true, however, that both guests are willing to hear ex ante questions from the master and from the family members and to answer them.[7] But as far as the first guest is concerned, we have already established that the interpretations he provides are far more frequently given to family members. He does not reject a request to state his opinion made by the master, but when other family members ask the first guest to state his opinion, the master is not a part of this dialogue, even though he would like to be heard. The first guest will reply how he interprets his own rules that need to be applied directly in the house. The master has no say in it; moreover, he is not heard, he is not asked... and he is not in the position to refuse such an interpretation.[8]
With respect to the second guest, the master always takes part in the dialogue, at least if he so wishes. Namely, before the second guest makes a decision, he requests that everyone - i.e. family members and the master - be heard and that they speak. The second guest politely communicates with the master, and vice versa. The master will act congruently at least at a base level, as the second guest expects. However, since there are two guests, it might be that the first guest, who asserts his own rules and interpretations, is an obstacle when the master endeavours to fulfil the wishes of the second guest.[9] The master also does not know whether the second guest will follow him in case he only tries to please the first guest. Most likely, the master will be confused trying to please both of them.
A family of such kind with two guests in the house addresses problems by way of hierarchy. It is quite significant for the hierarchy that the master is chosen jointly and that, once chosen, he makes binding decisions. The level of independence from other members is also significant. It is difficult for a hierarchically organised family to function in such a way, as the master has a difficulty accepting, with all due respect to the two guests, that he does not have a say when deciding various matters, because he would like to be heard and to talk. To talk, not to give orders. Well, he would only give orders in cases where he strongly disagrees... for example, when a guest tramples the basics values of his family or the basic rights of the members of his family.[10]
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Visszaugrás
