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14 Eur. L.J. 1 (2008)

handle is hein.journals/eurlj14 and id is 1 raw text is: 

European Law Journal, Vol. 14, No. 1, January 2008, pp. 1-35.
C 2008 The Author
Journal compilation C 2008 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA



'Solange, chapter 3': Constitutional Courts

         in   Central Europe-Democracy-

                          European Union


                             Wojciech Sadurski*





Abstract: Soon  after the accession of eight post-communist states from Central and
Eastern Europe to the EU, the constitutional courts of some of these countries questioned
the principle of supremacy of EU law over national constitutional systems, on the basis of
their being the guardians of national standards of protection of human rights and of
democratic principles. In doing so, they entered into the well-known pattern of behaviour
favoured by a number  of constitutional courts of the 'older Europe', which is called a
'Solange  story' for the purposes of this article. But this resistance is ridden with
paradoxes, the most important of which is a democracy paradox: while accession to the
EU  was  supposed to be the most stable guarantee for human rights and democracy in
post-communist states, how can the supremacy of EU law be now resisted on these very
grounds? It is argued that the sources of these constitutional courts' adherence to the
'Solange' pattern are primarily domestic, and that it is a way of strengthening their
position vis-ai-vis other national political actors, especially at a time when the role and
independence of those courts face serious domestic challenges.



I   Introduction
One  of the most important themes in the grand narrative of the emergence of EU law
as the supreme law of EU-land, prevailing over national legal systems, is (what may be
called generically) a Solange story: a story about national constitutional courts resisting
a straightforward surrender of national legal sovereignties, and insisting on their own
role as guardians of any further transfer of powers from the national to the European
level. This resistance is based on their distrust both of the democratic legitimacy at the
above-national level, and of the EU's ability to provide a degree of protection of the
principles of the rule of law and human rights, at least equivalent to that of the most
elevated standards of the relevant national communities.





*  Professor in the Department of Law, European University Institute, Florence, and in the Faculty of Law,
   University of Sydney. I am grateful to Kasia Lach and Sara Dezalay, as well as to a number of other
   colleagues whose advice is acknowledged in the relevant parts of the text below.

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