Tobias Auberger and Tanja Hitzel-Cassagnes - Mzes

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18 nally, the style of reasoning is rather minimalist and quite modest in explaining and justifying decisions – which might be read as a hint to an altogether dogmatic style of interpretation, neither open nor oriented to dialogues and discursive reasoning. This background might also help to explain the dominant perception of harmonisation in formal terms, i.e., as a formal process of enactment of legal acts containing provisions that are the same as EU legal acts 10 . A second difference – which is very much related to the positivist and formalistic notions of law – concerns the institutional self-interpretation and role within the political system. In this context a strong and strict reliance on a rather simplistic doctrine of the separation of powers still seems to be hegemonic. In consequence, the starting point for the judicial self-interpretation is a vision of the judiciary as an institution subordinate and secondary to the (national) legislature which is seen as the sole authority of binding law-making. This rather formalist and static view of the separation of powers precludes the idea that judges share political and societal responsibility. Capeta (2006) for instance has argued in this way: The separation of powers doctrine shields judges from social responsibility, so for her, it is highly questionable whether judges are beyond that background motivated by the possibility of their own empowerment. But there is another consequence which is of relevance, especially that law relies on a strong legal hierarchy within a framework of a closed legal system, and that this hierarchy is reproduced at the institutional level regarding the competence-allocation between constitutional and lower courts. So, at the end of the day, it seems quite obvious why it is so difficult for the judiciaries of the new member states (at least for most of the lower judiciaries) to apply and interpret European Law (probably rather International Law in general), i.e. different sources of law including “soft” legal acts and case-law (Kühn 2004: 552). At the same time it helps understanding the difficulties of introducing a system of decentralised judicial review in order to apply and enforce European Law. No doubt, all these conceptual and institutional attitudes influence the (third) legal level in a narrower sense. The fixation on static state law, a dichotomist vision of validity, and the formalistic orientation – be it the handling of constitutional concepts (individual rights, democracy, rule of law) or constitutional doctrines (separation of powers, hierarchies of norms, public-private divide) – does not only prejudge the general institu- 10 Most authors explain this status quo as a result of the socialist legacy not only retaining but strengthening a formalist and positivist approach to law relying on a strict differentiation between binding and non-binding sources of law that characterised Europe following the codifications of law in the 19th century.
19 tional role and function but also the practice of concrete adjudication. This, of course, is rather a substantial question regarding the possibility and effectiveness of judicial remedies and the “Rechtswahrungsfunktion” of courts. Although we cannot deal with these substantial issues in this context we would like to hint at two phenomena that might lead to the conclusion, that the present system of judicial remedy is rather deficient in term of protecting individual rights and interests: Firstly, there are rather obstinate and persistent conflicts between constitutional and lower courts regarding the interpretation and enforcement of European law (whereas, most of the time, the constitutional courts are the pro-European and anti-formalist parties); Secondly, individual as well as public- and corporate-interest plaintiffs try to bypass the national system of judicial review, searching for judicial remedies at the European level for instance (esp. the CfI, ECJ as well as the ECHR) or searching for conflict resolution at non-state extra judicial institutions like tribunals, arbitration bodies etc. (see XX). 4. Conclusion Resuming the different kinds of difficulties associated with the functioning of an enlarged Union and the processes of (re)Constitutionalisation, only the final point questioning the legal compatibility of the new member states and the European constitutional system might lead to quite a pessimistic view with regard to the prospects of integration. The other aspects – be it related to substantial conflicts about the status and meaning of the “acquis”, to plurality and cultural differences or to institutional settings and participation-modes were not able to raise serious scepticism about potential structural incompatibles. At closer look, the situation somewhat revealed either that similar kind of problems have always been constitutive for the development of the European Community/Union – due to their very nature of being principled conflicts about the nature and the scope of integration, or that the problems are attributable not genuinely to the new member states but to the European Union as a polity, questioning its functioning and the modes of institutional processes. In this context we have pleaded for a problem-solving mode that is aiming at open and symmetric learning processes, and that is, at the same time, stepping back from the notions of prefigured constitutionalisation and one-sided adaptation. Instead, the inclusion and participation of potential new voices should be taken seriously, and as a chance for reflexive re-assurance on the one hand and as a change for mutual and reciprocal learning-processes on the other.
Page 1 and 2: Tobias Auberger and Tanja Hitzel-Ca
Page 3 and 4: 3 common feature: They conceive the
Page 5 and 6: 5 Even in reality, as certain studi
Page 7 and 8: 7 openness and reversibility. Thus,
Page 9 and 10: 9 portant role in the European fore
Page 11 and 12: 11 Apart from the fact that these c
Page 13 and 14: 13 Weiss 2005, Dangerfield 2006, Ba
Page 15 and 16: 15 hierarchies and asymmetries are
Page 17: 17 2. By requiring national courts,
Page 21 and 22: 21 Biography (incomplete) Albi, Ann
Page 23 and 24: Kühn, Zdenek (2005) The Applicatio

Tobias Auberger and Tanja Hitzel-Cassagnes - Mzes

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