A Dane, a German, and a Pole walk into a court : national courts as critics of the European Court of Justice

Abstract

National courts can disagree with the judgments of the Court of Justice, objecting to outcomes or/and legal justification. This chapter conceptualizes this disagreement as methodological critique, which can take three forms. The first form is a simple methodological critique, primarily directed at the techniques/canons of interpretation. An illustrative case is the Danish Supreme Court’s decision in the Ajos case. The second form is the meta-methodological critique, primarily directed at the Court’s institutional responsibility for keeping the powers of political institutions in (democratic) check. The clearest illustration is the PSPP judgment of the Federal German Constitutional Court. The third is the inverted methodological critique, primarily directed at the national court’s validation of the Court of Justice’s – objectionable – methodology. The Polish Constitutional Tribunal’s decisions K 3/21 and U 2/20 about the criteria of judicial independence are the most illustrative examples. The contribution of the chapter is two-fold. On the legal conceptual level, it establishes the critique of the European Court of Justice by the national courts as an independent object of inquiry, separate from the doctrine of judicial cooperation or dialogue. On the theoretical level, it highlights ‘uncommon’ constitutional traditions as an important factor in explaining national perceptions about the intrusiveness of the Court of Justice’s methodology, causing friction in the interpretation and the application of European Union law.