Constitutional Courts Asking Questions: A Deliberative Potential of Preliminary Reference Mechanism

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Authors

PIVODA Marek

Year of publication 2023
Type Article in Periodical
Magazine / Source Cambridge Yearbook of European Legal Studies
MU Faculty or unit

Faculty of Law

Citation
Web Open access článku
Doi http://dx.doi.org/10.1017/cel.2023.15
Keywords constitutional courts; ECJ; preliminary references; Article 267 TFEU; deliberative democracy; market capitalism; legitimacy
Description This Article interrogates the role of national constitutional courts within the Article 267 TFEU preliminary reference mechanism from both descriptive and normative angles. First, I demonstrate that although a clear majority of the constitutional courts submit references to the ECJ on a more frequent basis, differences in individual approaches remain significant. Subsequently, I argue that the core normative attractivity of the questions submitted in the course of domestic constitutional review lies in their participative and deliberative potential. Compared to ordinary courts, constitutional courts are better suited to amplify the ‘unheard’ voices of immobile EU citizens. By counterbalancing the demands of the EU's functional constitution, which is primarily based on the ideals of market capitalism, constitutional courts’ questions may contribute to the EU's capacity to generate legitimate decisions. Finally, I put my theoretical claims in context and analyse the main ways in which such deliberative potential can translate into practice.
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