65
Second working session — The impact
autonomies’: There is no final arbiter, as Barents stresses (
31
), but there is a com-
mon responsibility vis-à-vis the citizen. Taking the citizens seriously in the EU
means taking seriously this specific responsibility for all actors involved.
Issues of fundamental rights, competence and national identity would,
therefore, be brought to the ECJ by the national courts to give it the oppor-
tunity to take and argue its position, considering carefully the constitutional
concerns of the case as explained by the national court. National authorities
and courts may then not be inclined to accept and follow the ruling given by
the ECJ, like in the case of the Czech Constitutional Court. It would be for the
Commission, at this stage, to consider opening an infringement procedure,
if it finds politically worth it to do so. Finally, after intense exchange of argu-
ments, the ECJ might be given another opportunity to take a position etc. If
all participants in the dialogue remain aware of their common responsibility
for the citizens of the Union, loyal to ensure that the system produces an ac-
ceptable final decision in the given case, from the drafting of the legal act up
to the point, eventually, of an infringement procedure, only a few cases will
arrive at this stage, and there is no reason to fear a real threat to legal certainty
within the Union. The remaining risk of a Union act not finding recognition
in a Member State is the more negligible the more the institutions in charge
become aware of their respective responsibilities.
This risk is far from threatening the autonomy of the EU legal order to a
considerable degree. That national courts participate in the task of ensuring
that ‘the law’ is observed and, in flagrant instances, may even revolt as last
resort, compels the European judges to be careful in considering their con-
cerns. If this is the price for a pluralist system accepting the autonomy of the
EU and the national legal orders in a composed constitutional system, where
judges struggle for the better law in the interest of the individual, it is not high
compared to the problems of acceptance of any hierarchical approach in this
new kind of legal compound, which is different from federal – and even more
so – from centralised states.
2. Autonomy of the EU Legal Order and International
Law
In Opinion 1/91
EEA I
the Court not only stressed the constitutional
character of the EEC-Treaty to distinguish it categorically from international
(
31
) Barents, Autonomy (note 9) p. 300.
