The ex-ante review by national courts of acts adopted with unanimity in the EU: Judges as foretellers?

Abstract

This article examines the role of national courts tasked with constitutional jurisdiction in the ex-ante review of acts adopted in the context of European integration requiring unanimous agreement among the Member States, such as the European Treaties, mixed agreements, inter se agreements and certain secondary EU legal acts. National courts often review the constitutionality of these acts prior to their adoption, becoming veto players in the composite European constitution. This article explores reviewing courts’ reasoning in such instances, discussing how they balance their duty to protect national constitutions while enabling the smooth functioning of the EU and promoting its integration. It finds that a key component of the reviewing courts’ reasoning is the evaluation of the uncertainty regarding the future development of the act under scrutiny. It critiques two approaches to the evaluation of such uncertainty: a ‘distrustful’ approach, which overly restricts integration to protect the constitution, and a ‘trustful’ one, which prioritizes integration at the cost of constitutional safeguards. The article argues for a more balanced approach, where national courts adopt a reasonable interpretation of the act under review, reserving for themselves the prerogative to intervene in case of future abnormal developments.