European constitutionalism and the European arrest warrant: In search of the limits of "contrapunctual principles"

Common Market Law Review

Volumn 44, Issue 1, 2007, Pages 9-40

  Komárek, Jan ^a  

^a SOMERVILLE COLLEGE   (United Kingdom)

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EID: 34548646823     PISSN: 01650750     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (177)

1. Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, O.J. 2002, L 190/1.
2. See generally Walker, "In search of the area of freedom, security and justice: A constitutional odyssey" in Walker (Ed.), Europe's Area of Freedom, Security and Justice (Oxford, 2004).
3. Polish Constitutional Tribunal, judgment of 27 April 2005, P 1/05, available in English at www.trybunal.gov.pl/eng/summaries/summaries_assets/ documents/P_1_05_full_GB. pdf; German Federal Constitutional Court, judgment of 18 July 2005, 2 BvR 2236/04, available in English at: www. bundesverfassungsgericht.de/en/decisions/rs20050718_2bvr223604en.html; Supreme Court of Cyprus, judgment of 7 Nov. 2005, Ap. No. 294/2005. The decision in Greek with a short English summary is available as a Council document No 14281/05 of 11 Nov. 2005. For short information on it, see Mitsilegas, "The constitutional implications of mutual recognition in criminal matters in the EU", 43 CML Rev. (2006) 1277, at 1298.
4. Judgment of the Czech Constitutional Court of 3 May 2006, Pl. US 66/04, English (shortened) translation of the judgment is available at test.concourt.cz/angl_verze/doc/pl-66-04.html.
5. Case C-303/05 Advocaten voor de Wereld, pending, O.J. 2005, C 271/14. For more information on the case, see Council document No. 11518/05 of 4 Aug. 2005.
6. In concrete cases before the CCC and the FCC.
7. Opinion of A.G. Colomer of 12 Sept. 2006 in Case C-303/05, Advocaten voor de Wereld, nyr.
8. See particularly the case comments on the Polish decision, including Leczykiewicz, 43 CML Rev. (2006), 1181-1191; on the German decision. Hinarejos Parga, 43 CML Rev. (2006), 583-595; and Sadurski, '"Solange, chapter 3': Constitutional courts in Central Europe - Democracy - European Union". Kühn, "Constitutional monologues, Constitutional dialogues or constitutional cacophony? European arrest warrant saga in Germany, Poland and the Czech Republic", paper not yet published, presented at the "Cross-cutting workshop 'Integration or absorption? Legal discourses in the enlarged Union'", Hannover University, 28-30 Sept. 2006, on file with the author, provides a very interesting comparative perspective on the three decisions, focusing at other aspects of them. EUI Working Papers LAW No. 2006/40 available at cadmus. iue.it/dspace/handle/1814/6420
9. Maduro, "Contrapunctual law: Europe's constitutional pluralism in action", in Walker (Ed.), Sovereignty in Transition (Oxford, 2003), pp. 501-537.
10. Kumm, "The jurisprudence of constitutional conflict: Constitutional supremacy in Europe before and after the constitutional Treaty", 11 ELJ (2005), 262.
11. Judgment of 29 May 1974, 2 BvL 52/71, BVerfGE 37, 271; in English, in Oppenheimer, The Relationship between European Community Law and National Law: the Cases. Volume I (Cambridge, 1994) at 440.
12. Judgment of 22 Oct. 1986, 2 BvR 197/83, BVerfG 73, 339; in English, in Oppenheimer, op. cit. supra note 11, at 461.
13. Judgment of 12 Oct. 1993, 2 BvR 2134 and 2159/92, BVerfGE 89, 155; in English, in Oppenheimer, op. cit. supra note 11, at 526.
14. Judgment of 7 June 2000, 2 BvL 1/97, BVerfGE 102, 147; in English, in Oppenheimer, The Relationship between European Community Law and National Law: the Cases. Volume II (Cambridge, 2004).
15. See particularly Mayer, "The European constitution and the courts - Adjudicating European constitutional law in a multilevel system", The Jean Monnet Program Working Paper Sept. 03, available at www.jeanmonnetprogram.org/ papers/03/030901-03.html at 12-18; Kumm, "Who is the final arbiter of constitutionality in Europe? Three conceptions of the relationship between the German Federal Constitutional Court and the European Court of Justice", 36 CML Rev. (1999), 351 at 362-374; and Aziz, "Sovereignty lost, sovereignty regained? Some reflections on the Bundesverfassungsgericht's Bananas Judgment", 9 CJEL (2002), 109.
16. Judgment of 11 May 2005, K 18/04, English summary available at www.trybunal.gov.pl/eng/summaries/documents/K_18_04_GB.pdf.
17. It was described as "unconditional national constitutional sovereignty". See Chalmers et al., European Union law: Text and Materials (Cambridge, 2006), pp. 199-201.
18. For a more detailed discussion of this judgment, see Sadurski, op. cit. supra note 8, pp. 23-28. An earlier version of my article examined the "Accession Treaty Decision" in detail and was published as "Pluralismo constitucional europeo tras la ampliación. Un análisis de la jurisprudencia comunitaria del Tribunal Constitucional polaco", (16/2005) Revista española de Derecho Europeo (transl. D. Sarmiento).
19. Accession Treaty Decision, PCT cited supra note 16, point 2.1, cf. para 10 of the English summary.
20. Accession Treaty Decision, PCT cited supra note 16, point 6.4, quote taken from paras. 13 and 14 of the English summary, emphasis added. The summary must be read with great caution since it has a different structure of argumentation from the original decision.
21. See section 3.1.2. infra.
22. EAW Judgment, CCC, cited supra note 4, para 53.
23. For a more detailed discussion of this judgment see Sadurski, op. cit. supra note 8, pp. 7-11.
24. Judgment of 8 March 2006, P1 US 50/04, available in English at test.concourt.cz/angl_verze/doc/p-50-04.html, Sugar Quota Judgment, part V, section A. Unfortunately, only recently has the CCC started to divide its judgments into numbered paragraphs. Therefore, more precise reference cannot be provided.
25. Ibid., in part V, section B: ". . . the delegation of a part of the powers of national organs may persist only so long as [sic!] these powers are exercised in a manner that is compatible with the preservation of the foundations of state sovereignty of the Czech Republic, and in a manner which does not threaten the very essence of the substantive law-based state. Should one of these conditions for the transfer of powers cease to be fulfilled, that is, should developments in the EC, or the EU, threaten the very essence of state sovereignty of the Czech Republic or the essential attributes of a democratic state governed by the rule of law, it will be necessary to insist that these powers be once again taken up by the Czech Republic's state bodies; in such determination the Constitutional Court is called upon to protect constitutionalism . . . As concerns the essential attributes of a democratic state governed by the rule of law, according to Art. 9 para 2 of the Constitution of the Czech Republic, these remain beyond the reach of the Constituent Assembly itself."
26. Recently, a current ECJ judge and former CCC justice Jiří Malenovský called on the CCC to change it: Malenovský, "K nové doktríně Ústavního soudu ČR v otázce vztahů českého, komunitárního a mezinárodního práva" ["As to the New Doctrine of the Czech Constitutional Court Concerning the Relationship Between Czech, Community and International Law"], (21/2006) Právní rozhledy, 774-783. As will be seen below, there are other ambiguities in the CCC's approach; see the text accompanying note 150.
27. For a more comprehensive analysis of the Framework Decision's constitutional problems, see Mitsilegas, op. cit. supra note 3, 1286-1289.
28. See Alegre and Leaf, "Mutual recognition in European judicial cooperation: A step too far too soon? Case study - The European Arrest Warrant", 10 ELJ (2004), 200;
29. Douglas-Scott, "The rule of law in the European Union - Putting the security into the area of freedom, security and justice", 29 EL Rev. (2004), 219;
30. Wouters and Naerts, "Of arrest warrants, terrorist offences and extradition deals: An appraisal of the EU's main criminal law measures against terrorism after ' 11 September'", 41 CML Rev. (2004), 909;
31. and Mitsilegas, op. cit. supra note 3.
32. As Douglas-Scott points out (see note 85, at 224), the extradition procedure is political in nature, which was shown e.g. by the case of general Pinochet - see Case R. v. Bow Street Metropolitan Stipendiary Magistrate and Others Exp. Pinochet Ugarte (No.2), (2000) 1 A.C. 119.
33. For an extensive analysis of this rule in national and international law, see Plachta, "Non-extradition of nationals: A never-ending story?", 13 Emory International Law Rev. (1999), 77. For a list of European countries which had had this rule in their constitutions before they implemented the EAW Framework Decision, see ibid, at 109.
34. It has been expressly rejected in the UK in 1878 by a special Royal Commission on Extradition. For the US, see judgment of the Supreme Court in Neely v. Henkel, (1900) 180 U.S. 109, 123.
35. See Plachta, op. cit. supra note 30, at 86-87.
36. This applies with some exceptions: e.g. Nordic countries do not prohibit extradition of own nationals among themselves: Plachta, op. cit. supra note 30, at 99-100.
37. Plachta, op. cit. supra note 30, at 88. The issue of prohibition on extradition of own nationals has also been controversial at the international level and the debate was fuelled even more by the establishment of the International Criminal Court. See Deen-Racsmány, "A new passport to impunity? Non-extradition of naturalized citizens versus criminal justice", 2 Journal of International Criminal Justice (2004), 761.
38. It is also questioned whether the prohibition is a rule of international law: Plachta, op. cit. supra note 30, at 77.
39. th recital of the Preamble;
40. Joined Cases C-187/01 and C-385/01, Gözütok and Brügge, [2003] ECR I-1345, para 38.
41. See Mitsilegas, op. cit. supra note 3;
42. and also Alegre and Leaf, op. cit. supra note 28,
43. and Wouters and Naerts, op. cit. supra note 28, at 919-923.
44. EAW Judgment, CCC, cited supra note 4, paras. 68 and 69.
45. A very comprehensive historical overview may be also found in Kühn, op. cit. supra note 8.
46. O.J. 1996, C 313/12.
47. See the text accompanying note 70.
48. It was expected that it would put the implementation of the EAW Framework Decision in doubt as regards its constitutionality. See Weigend and Górski, "Die Implementierung des Europäischen Haftbefehls in das polnische Strafrecht", 117 Zeitschrift für die gesamte Strafrechtswissenschaft (2005), 193, at 196-197.
49. English translation available e.g. at www.trybunal.gov.pl/eng/ Legal_Basis/constitution.htm.
50. English translation available e.g. at test.concourt.cz/angl_verze/rights. html.
51. For a more complete discussion of particular decisions, see the comments supra note 8;
52. and Komárek, op. cit. supra note *.
53. For more information regarding procedural and factual background of the case, see Leczykiewicz, op. cit. supra note 8, 1181-1183.
54. See this comment or Komárek, op. cit. supra note*, pp. 9-13, also for a more detailed elaboration of some arguments not analysed here.
55. Opinion of A.G. Kokott in Case C-105/03, Pupino, [2005] ECR I-5285.
56. EAWJudgment, PCT, cited supra note 3, part III, point 3.4.
57. nd ed. (Oxford, 2005), pp. 184 and 214-215.
58. Case C-168/95, Arcaro, [1996] ECR I-4705, para 42.
59. For arguments supporting the view that consistent interpretation may permit the imposition of obligations on an individual even by public authorities (i.e. amounting to a reverse vertical effect), see Prêchal op. cit. supra note 45, pp. 214-215.
60. Case 80/86, Kolpinghuis Nijmegen, [1987] ECR 3969, recently confirmed in Case C-60/02, X, [2004] ECR I-651.
61. See also Prechal, op. cit. supra note 45, at pp. 203-208.
62. A.G. Kokott in Pupino also distinguished between substantive criminal law, determining criminal liability, where consistent interpretation cannot be used, and criminal procedure, where it can. See para 42 of her Opinion.
63. That consistent interpretation is excluded only if it imposed criminal liability (as opposed to rules of criminal procedure) is expressly confirmed by the ECJ in Pupino: see paras. 45-46. It may be also added that because the consistent interpretation here concerns conflicting rules within national law as opposed to situations when it seeks to remedy missing or incorrect implementation of a Community norm into national law, the limits of the consistent interpretation may be more relaxed. See however FCC's arguments described in the text accompanying note 76.
64. For a thorough analysis of the limits of consistent interpretation in criminal cases, see Lenaerts and Corthaut, "Of birds and hedges: The role of primacy in invoking norms of EU law", 31 EL Rev. (2006), 287, at 296-297.
65. See supra note 20, and the text accompanying it.
66. EAW Judgment, PCT, cited supra note 3, Part III, point 4.1.
67. Pupino, cited supra note 43, para 47.
68. EAWJudgment, PCT, cited supra note 3, Part III, point 4.2.
69. On this distinction, see Alexy, A Theory of Constitutional Rights (transi. Rivers), (Oxford, 2002). See also the review essay of this book, Kumm, "Constitutional rights as principles: On the structure and domain of constitutional justice", 2 Int'l Journal of Constitutional Law (2004), 574, at 576-578.1 owe this argument to Kumm.
70. See Kumm, op. cit. supra note 56, at 579.
71. This of course also depends on which theory of constitutional rights the court subscribes to. For instance, Dworkin excludes any balancing of rights with policies whatsoever: see Dworkin, "What rights do we have?" in Taking Rights Seriously (Cambridge, Mass, 1978), pp. 266-278.
72. See also Dworkin's "Principle, policy, procedure" in A Matter of Principle (Cambridge, Mass, 1985), pp. 72-103.
73. EAWJudgment, PCT, cited supra note 3, Part III, point 4.3.
74. Ibid., Part III, point 4.4.
75. See supra note 19, and the text accompanying it.
76. EAWJudgment, PCT, op. cit. supra note 3, Part III, point 5.
77. Ibid., Part III, point 5.3, second paragraph.
78. Ibid., Part III, point 5.5.
79. Ibid., Part III, point 5.2, first paragraph.
80. See particularly arguments discussed in the text accompanying note 53.
81. See Leczykiewicz, op. cit. supra note 8, 1189-1190 for potentially disapproving reactions of ordinary courts (as they may decide to "apply the Constitution directly" and not respect the temporal limitation), and 1191 for a legislative proposal submitted to the Polish Sejm.
82. According to some sources, he was close to the hijackers of the planes in the New York and Washington attacks on 11 Sept. 2001. See Bernstein, "Court lets German linked to terror go", International Herald Tribune of 20 July 2005 available at www.iht.com/bin/print_ipub.php?file-/ articles/2005/07/19/news/germany.php (29 Dec. 2005).
83. th amendment, Bundesgesetzblatt 2000, part I, p. 1633.
84. Art. 16(2), emphasis added. English translations of the Grundgesetz are taken from Tschentscher, The Basic Law (Grundgesetz): The Constitution of the Federal Republic of Germany (23 May 1949) (Jurisprudentia, 2002-2003), available at www.ecln.net.
85. Gesetz zur Umsetzung des Rahmenbeschlusses über den Europäischen Haftbefehl und die Übergabeverfahren zwischen den Mitgliedstaaten der Europäischen Union (Europäisches Haftbefehlsgesetz - EuHbG), Bundesgesetzblatt 2004, part I, p. 1748. The text is available at: www.eurowarrant.net/documents/cms_eaw_14_1_EJN576.pdf.
86. For this argument, which will not be analysed here, see Hinarejos Parga, op. cit. supra note 8, 586.
87. See the FFC, op. cit. supra note 3, paras. 102-116.
88. FCC, cited supra note 3, paras. 64-101.
89. Art. 4(7) of the EAW Framework Decision, cited supra note 1.
90. FCC, cited supra note 3, paras. 85 and 86.
91. Ibid., para 99.
92. Judge Lübbe-Wolff was of a similar opinion in her dissent - see FCC, cited supra note 3, paras. 182-184.
93. This is a point on which all constitutional courts concerned concurred: see EAW Judgment, PCT, cited supra note 3, part III, point 2.4;
94. and EA W Judgment, CCC, cited supra note 4, para 54.
95. See also Hinarejos Parga, op. cit. supra note 8, 589-590.
96. FCC, cited supra note 3, para 75. While the majority did not examine this principle in relation to the framework decision, Judge Broß's dissenting opinion proposes to declare the implementing law void on this basis.
97. Gözütok and Brügge, cited supra note 34, para 33.
98. See also note 34 supra.
99. See also see Mitsilegas, op. cit. supra note 3, p. 1296.
100. FCC, cited supra note 3, para 78.
101. Ibid., para 119. The case-by-case examination is according to the FCC also necessary for determining whether the extradition would be proportionate. While the FCC allows presumption of proportionality in cases where a "significant connecting factor to a foreign country" exists, "specific weighing of the individual case is required if the act has been committed entirely or partly in Germany but the result has occurred abroad" (see para 88).
102. Ibid., para 119.
103. Ibid., para 118.
104. Judge's Gerhardt's dissent, FCC, cited supra note 3, para 189.
105. For a detailed analysis of the FCCs avoiding consistent interpretation, see Hinarejos Parga, op. cit. supra note 8, 586-593.
106. See part 3.3.3. infra.
107. See note 40 supra.
108. See the text accompanying note 22 supra.
109. This was severely criticized by the dissenting Judge Wá gnerová.
110. EAW Judgment, CCC, cited supra note 4, para 55.
111. Ibid., para 57.
112. Ibid., para 58.
113. Sugar Quota Judgment, CCC, cited supra note 24, part V, section B.
114. EAW Judgment, CCC, cited supra note 4, para 58.
115. Ibid., para 60. It is still somewhat unclear under what conditions the CCC would send a reference to the ECJ. Apart from the Sugar Quota Judgment (part V, section B), where the CCC avoided to give a clear guidance, the CCC touched this in the judgment of 25 Jan. 2006, II. ÚS 14/04, where it even seemed to deny that it would consider itself to be a court of last instance in the sense of Art. 234 EC (this judgment was however delivered by a senate, not the plenum of the CCC).
116. EAW Judgment, CCC, cited supra note 4, paras. 70-71.
117. Ibid., paras. 73-78.
118. Ibid., para 77.
119. Ibid., para 85.
120. See the text accompanying notes 53-55 supra.
121. See note 34 supra.
122. Albeit this safeguard is mentioned only in the Preamble to the EAW Framework Decision.
123. EAW Framework Decision, cited supra note 1, Art. 4 (7).
124. Which states: "Only a law may designate the acts which constitute a crime and the penalties or other detriments to rights or property that may be imposed for committing them".
125. EAW Judgment, CCC, cited supra note 4, para 111.
126. Ibid., para 113.
127. See Maduro, op. cit. supra note 9, p. 532.
128. Ibid., at p. 526.
129. "Primacy in application" in every case of conflict is therefore not the way towards real pluralism.
130. See note 78 supra.
131. See part 1.2. supra.
132. Maduro, op. cit. supra note 9, p. 528, emphasis added. For an even more ambitious claim, envisaging all constitutional actors, see Besson, "From European integration to European integrity: Should European law speak with just one voice?", 10 ELJ (2004), 257.
133. There is no room to repeat the debate in general jurisprudence on a theory of "law as integrity", proposed by Dworkin in his Law's Empire (Cambridge, Mass, 1986), although it would be certainly beneficial; other, more important reservations are made in section 4.2. For a very accessible introduction (not only because it is available on Internet),
134. see Dickson, "Interpretation and coherence in legal reasoning", Stanford Encyclopaedia of Philosophy available at plato.stanford.edu/ entries/legal-reas-interpret.
135. This is a necessary consequence of the non-hierarchical organization of the EU judiciary. See Komárek, "Federal elements in the Community judicial system: Building coherence in the Community legal order", 42 CML Rev. (2005), 9, particularly at 27-30.
136. Maduro, op. cit. supra note 9, pp. 529-530.
137. See the text accompanying notes 55 and 59.
138. EAW Judgment, PCT, cited supra note 3, Part III, point 5.7, mentioning France amending its Constitution in order to make ratification of the Maastricht Treaty possible, the same case of Spain and finally Germany, abolishing its rule prohibiting women's service in the armed forces after the ECJ's judgment in Case C-285/98, Tanja Kreil, [2000] ECR I-69.
139. EAW Judgment, PCT, cited supra note 3, Part III, point 5.9. So did the CCC (see note 97 supra), which is not expressly analysed here, as it upheld national implementation.
140. Decision of 21 July 2005. I am grateful to D. Sarmiento for providing me with detailed information regarding the reaction of the Spanish High Court.
141. Para 74. However, one may add to the FCCs statement that the construction of the EU citizenship depends largely on the ECJ, which does in no way take such a limited understanding. Dissenting opinion of Judge Lübbe-Wolff mentions the ECJ's recent ruling in Case C-209/03, Bidar, [2005] ECR 1-2119, to argue that the ECJ used this provision rather extensively. See Hilson, "What's in a right? The relationship between Community, fundamental and citizenship rights in EU law", 29 EL Rev. (2004), 636.
142. The FCC refers in this respect to Art. 6 (3) EU and to Art. 1-5 (1) of the European CT.
143. On this point, see the CCC, which expressly reminded ordinary courts that the protection provided applies to "other persons, authorized to stay within the territory of the Czech Republic". See text accompanying note 107 supra.
144. Maduro, op. cit. supra note 9, p. 524.
145. This is a completely new argument, which complements (not replaces) arguments made in "Contrapunctual Principles in Disharmony" (cited supra note *), pp. 22-25, which are not repeated here. Although it attempts to be a critique of Kumm's principle of best fit, it does not intend to undermine the significance of his contribution for our understanding of constitutional conflicts. It however suggests that his principle blurs an important distinction.
146. Kumm, op. cit. supra note 10, pp. 269-274.
147. nd ed. (Oxford, 1994), pp. 56-57.
148. Kumm, op. cit. supra note 10, 271.
149. Ibid., 285.
150. Ibid., 298.
151. Ibid., 286.
152. Dworkin, op. cit. supra note 113, p. 225.
153. See note 113 supra.
154. This is a "positivistic" claim. Before discarding positivism as irrelevant in today's legal practice, see Gardner, "Legal Positivism: 5 1/2 Myths", 45 American Journal of Jurisprudence (2001), 199, particularly 214-218, for it is a very good justification why not to do so. But a misunderstanding of legal positivism is not something to blame people outside jurisprudence; even proponents of this tradition of thought do not agree what positivism is.
155. Raz, "Speaking with one voice: On Dworkinian integrity and coherence" in Raz, Ethic in the Public Domain (Oxford, 1994), pp. 303-309;
156. reprinted also in Burley (Ed.), Dworkin and His Critics: With Replies by Dworkin (Oxford, 2004), pp. 285-290, at 309.
157. Again, there was (or may be still is) a debate in jurisprudence on the nature of this discretion. But contrary to what Dworkin assumed to be the positivists' - or at least H.L.A. Hart's - position, judges "cannot do what they like" (see Raz, op. cit. supra note 134, p. 307, note 85). What opponents to law as integrity insist on is that there is no "one right answer" in these considerations.
158. See Dworkin, op. cit. note 58, pp. 119-145 "Is there really no right answer in hard cases" and its critique, Leiter, "Objectivity, morality and adjudication", in Leiter (Ed.), Objectivity in Law and Morals (Cambridge, 2001), pp. 66-98.
159. Kumm, op. cit. supra note 10, 282-286.
160. See note 125 supra. See another jurisprudential critique of Kumm by Schilling, based on Kelsen's version of legal positivism: Schilling, "The jurisprudence of constitutional conflict: Some supplementations to Mattias Kumm", 12 ELJ (2006), 173. Schilling, with different arguments (not all of which I would embrace), comes to the same conclusions as I do, I believe, although he argues that courts cannot change the fundamental rule of a legal system (instead of Hart's Rule of Recognition, Schilling uses Kelsen's Basic Norm, which may lead under his interpretation to different considerations). For a very useful introduction to Kelsen,
161. see Kelsen, Introduction to the Problems of Legal Theory (Paulson and Paulson transi.) (Oxford, 1996), which is a translation of the first edition of Kelsen's The Pure Theory of Law.
162. As every jurisprudential concept employed here, also the exact meaning of the rule of recognition is contested in jurisprudence. For an original exposition, see Hart, op. cit. supra note 126, pp. 94-95, particularly at pp. 100-123.
163. On this, see MacCormick, Questioning Sovereignty (Oxford, 1999), pp. 110-113.
164. Case 6/64, Costa, [1964] ECR 1141.
165. For the relevance of the enlargement, see Komárek, op. cit. supra note *, pp. 24-25.
166. Sadurski, op. cit. supra note 8, pp. 39 et seq. He comes with a very interesting (and quite plausible) explanation for post-communist national constitutional courts' would-be strong gestures towards the ECJ. They may actually empower themselves against political branches of government, as well as against the ECJ. They become actual final arbiters.
167. The concept of the rule of recognition may prove to be more promising for the analysis of constitutional conflicts in Europe than the concept of sovereignty.
168. Barber, "Legal pluralism and the European Union", 12 ELJ (2006), 306, at 326 and 327. My emphasis.
169. It may be argued that even the principle of best fit may accommodate criteria for institutional choice within it. However, Maduro's contrapunctual principles make this choice explicit, which is important for our complete understanding of the practice of constitutional conflicts.
170. Maduro, op. cit. supra note 9, at 530. Maduro draws on Komesar, Imperfect Alternatives. Choosing Institutions in Law, Economic, and Public Policy (Chicago and London, 1994).
171. In fact, both constitutional conflicts referred to by Kumm were finally resolved by the political process, in the case of Ireland's prohibition of abortion at the Community level by adopting a special protocol exempting Ireland from certain Community rules (because of the "abortion issue"); in Germany by changing the Grundgesetz after the ECJ's ruling in Case C-285/98, Kreil, [2000] ECR1-69. See Kumm, op. cit. supra note 10, 270.
172. National parliaments have not given up with the failure of the European CT, and the Conference of Community and European Affairs Committees of Parliaments of the European Union now exercises a pilot project of subsidiarity and proportionality check even without the European CT. See www.cosac.eu/en/ info/earlywarning/.
173. See the text accompanying note 22 supra.
174. EAW Judgment, CCC, cited supra note 4, para 82.
175. See the text accompanying note 26 supra.
176. Although this does not apply generally; quite the contrary: see Breyer, "Introduction: The 'international' constitutional judge", in Hershovitz (Ed.), Exploring Law's Empire: The Jurisprudence of Ronald Dworkin (Oxford, 2006), pp. 1-4.
177. On the other hand, one of the most prominent of Dworkin's critics is Judge Posner of the U.S. Federal Court of Appeal: see e.g. Posner, "The problematics of moral and legal theory", 111 Harvard Law Rev. (1998), 1637.