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Article Dans Une Revue Hungarian Journal of Legal Studies Année : 2022

Has Constitutional Pluralism Ever Been Tried Out?

Résumé

Constitutional identity has been seen with suspicion by a number of orthodox EU law scholars. That suspicion is understandable in the light of the German approach to the issue of constitutional conflicts. The Bundesverfassungsgericht, which often sets the tone among constitutional courts in Europe, indeed tends to solve those conflicts on the sole basis of the Basic Law with little consideration for EU law, thereby bringing discredit on constitutional identity. This paper aims to show against a comprehensive constitutional pluralism background that the German approach is not exclusive of more reasonable takes by other constitutional courts, as witnessed by the French and the Italian courts. It is on the basis of a pluralist reading of Article 4(2) TEU, as the EU law provision on the basis of which certain core elements of the national constitutions can be reasonably accommodated, that those constitutional courts have either devised constitutional identity or engaged with the CJEU within a shared constitutional framework that sets both the argumentative and substantive limits of constitutional identity. In so doing, far from representing a failure of constitutional pluralism, those constitutional courts stretch the latter to its ultimate boundaries in a way that has never been experienced yet.
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Dates et versions

hal-04071126 , version 1 (17-04-2023)

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  • HAL Id : hal-04071126 , version 1

Citer

François-Xavier Millet. Has Constitutional Pluralism Ever Been Tried Out?: On The Comparative Use of Article 4(2) TEU by Some Constitutional Courts. Hungarian Journal of Legal Studies, 2022, 63 (2), pp.119-141. ⟨hal-04071126⟩

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