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The Functions and Means of Access to National Constitutional Courts and the ECJ in Comparative Perspective

Maartje de Visser

When stakeholders (legislatures, courts, political actors, academia and society) assess the constitutional state of art of the EU and attempt to steer theconstitutionalization process in a particular direction, their behaviour is often informed by what Richard Primus has called 'constitutional expectations'. Constitutionalexpectations 'are intuitions about how the system is supposed to work. They arise from a combination of experience, socialization and principles'. Obviously, Europeansdo not all share a single, precisely defined set of expectations.This paper aims to examine the significance of constitutional expectations in relation to the European Court of Justice. A number of Member States have entrustedconstitutional review to specially designed constitutional courts. If the expectation is that, similarly, at the European level the ECJ should be central in upholding theEuropean constitution (which the Court itself believes and advocates), then there ought to be greater reflection on the precise meaning of such national expectations andwhether translating them to the European level is both justified and feasible.Accordingly, in its first part the paper will engage in a comparison of domestic practices concerning constitutional adjudication, with a particular focus on the mandate ofnational constitutional courts and their rules on standing. In the second part, the comparative findings will be used to formulate a better understanding of what it meansfor the ECJ to function as a constitutional court and which (if any) of the national courts it should wish to emulate.

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