¹ On the constitutional character of the CJEU, see Case C-294/83 Partie Ecologiste ‘Les Verts’ v Parliament [1988] ECR I-1017. For the ECtHR, see Loizidou v Turkey Series A no 310 (1995). The majority of the legal scholarship sees the European Union (EU) working within a constitutional framework composed of the Treaty and the case law of the Court of Justice of the European Union. See, eg, Craig, PP and de Búrca, G, EU law: Text, Cases, and Materials, 5th edn (Oxford, Oxford University Press, 2011)CrossRefGoogle Scholar chs 1–4. In terms of the deep transformation that the European Court of Human Rights has inflicted on national legal systems over the years, its de facto constitutional function has also been widely recognised: see, eg, Keller, H and Sweet, A Stone (eds), Europe of Rights: The Impact of the ECHR on National Legal Systems (Oxford, Oxford University Press, 2008)Google Scholar.

² The Court of Justice of the European Union is composed of the Court of Justice (CJ), the General Court (GC) and the Civil Service Tribunal (CST). For purposes of clarity in this chapter, I use the general acronym ‘CJEU’ when referring to the EU system. This is without prejudice to the fact that I focus on the role and case law of the CJ.

³ von Bogdandy, A and Venzke, I, ‘In Whose Name? An Investigation of International Courts’ Public Authority and its Democratic Justification’ (2012) 23 European Journal of International Law 7 CrossRefGoogle Scholar (extending this claim to embrace international courts in general).

⁴ For instance, the interpretation of equality with regard to positive action entails a prin cipled decision, ie one of whether to give formal or substantive meaning to equality. See argument on formal versus substantive equality Pell, TJ, ‘Racial preferences and formal equality’ (2003) 34 Journal of Social Philosophy 309 CrossRefGoogle Scholar; and Barnard, C and Hepple, B, ‘Substantive Equality’ (2000) 59 Cambridge Law Journal 562 CrossRefGoogle Scholar.

⁵ Bellamy, R., Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (Cambridge University Press, 2007)CrossRefGoogle Scholar; Scharpf, FW, ‘Legitimacy in the Multi-level European Polity’ (2009) 1(2) European Political Science Review 173 CrossRefGoogle Scholar, 174–75.

⁶ Bignami, F, ‘Constitutional Patriotism and the Right to Privacy: A Comparison of the European Court of Justice and the European Court of Human Rights’ in Murphy, T (ed), New Technologies and Human Rights (Oxford, Oxford University Press, 2009) 128-29CrossRefGoogle Scholar.

⁷ Ibid.

⁸ Bignami, ‘Constitutional Patriotism’ (n 6) 129.

⁹ The idea of a ‘constitutional space’ is built on an understanding of non-hierarchical judicial relations, as promoted by constitutional pluralists. See Sabel, C and Gerstenberg, O, ‘Constitutionalising an Overlapping Consensus: The ECJ and the Emergence of a Coordinate Constitutional Order’ (2010) 16 European Law Journal 511 CrossRefGoogle Scholar, where the term ‘European constitutional space’ is introduced and discussed. In this chapter, the ‘European constitutional space’ is studied as a collaborative process of judicial cross-fertilisation, for the functioning of which deference is not a condition sine qua non. This is without prejudice to the fact that deference is indeed a defining (and when promoting a higher standard of fundamental rights protection), a desirable feature of the interrelation between the ECtHR, the CJEU and the national constitutional courts of EU Member States.

¹⁰ Post, RC and Siegel, RB, ‘Roe Rage: Democratic Constitutionalism and Backlash’ (2007) 42 Harvard Civil Rights-Civil Liberties Law Review 373 Google Scholar, 376.

¹¹ The media plays a central role in debates on Supreme Court decisions in the US context. Many mainstream newspapers, such as the New York Times and the Washington Post, and others, at both ends of the political spectrum, regularly report and comment on judicial developments.

¹² US Constitution, Art 5.

¹³ Art 48 TEU.

¹⁴ Each Protocol to the Convention specifies the number of parties needed for the protocol to enter into force. The Convention as such has not been amended since it first entered into force in 1953.

¹⁵ Waldron, J, ‘The Core of the Case Against Judicial Review’ (2006) 115 Yale Law Journal 1346 CrossRefGoogle Scholar.

¹⁶ Recent scholarship has shown that political mobilisation against the liberalisation of abortion law began years before the Supreme Court decision in Roe was delivered but, in the following decade, evolved into what is now described as ‘Roe Rage’—a broad-based social movement hostile to the equal role of women in society, coupled with opposition to secularism and individualism. Greenhouse, L and Siegel, R, ‘Before (and After) Roe v. Wade: New Questions About Backlash’ (2011) 120 Yale Law Journal 2028 Google Scholar.

¹⁷ Kende, MS, ‘Foreword’ (2006). 54 Drake Law Review 791 Google Scholar, 791.

¹⁸ Brown v Board of Education of Topeka 347 US 483 (1954).

¹⁹ Roe v Wade 410 US 113 (1973).

²⁰ Post and Siegel, ‘Roe Rage’ (n 10) 376.

²¹ Above n 11.

²² Sunstein, CR, One Case at a Time: Judicial Minimalism on the Supreme Court (Cambridge, Mass, Harvard University Press, 1999)Google Scholar.

²³ Post, and Siegel, , ‘Roe Rage’ (n 10) 377 Google Scholar.

²⁴ Post, and Siegel, , ‘Roe Rage’ (n 10) 377 Google Scholar.

²⁵ Post, RC, ‘The Supreme Court, 2002 Term—Foreword: Fashioning the Legal Constitution: Culture, Courts, and Law’ (2003) 117 Harvard Law Review 4 Google Scholar, 77.

²⁶ Ackerman, B, ‘2006 Oliver Wendell Holmes Lecture: The Living Constitution’ (2007) 120 Harvard Law Review 1737 Google Scholar, 1767.

²⁷ Civil Rights Act of 1964, Pub L no 88–352, 78 Stat 241 (codified as amended in scattered sections of 2 USC, 28 USC, and 42 USC).

²⁸ Barry Goldwater was the Republican candidate who ran and lost against Lyndon Johnson in the 1964 US presidential elections. One of the most prominent points on Goldwater’s agenda, and among the first things he promised to do if elected President, was to declare the Civil Rights Act of 1964 unconstitutional. See Goldwater, B, The Conscience of a Conservative (Shepardsville, KY, Victor Publishing, 1960) 25–31 Google Scholar, 65–67 and 68–75.

²⁹ In the United States, battles on racial equality still continue to be fought on the affirmative action front, see Fisher v University of Texas at Austin, no 11–345 (pending). However, the severe racial segregation in the era of ‘Separate but Equal’ is unlikely to return.

³⁰ Arts 20–25 of the Consolidated Version of the Treaty on the Functioning of the European Union [2010] OJ C83/47 [hereinafter TFEU].

³¹ Art 6 para 2 of the Consolidated Version of the Treaty on the European Union [2010] OJ C83/13 [hereinafter TEU] reads: ‘The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties.’

³² For the concepts of constitutionalism and constitutional identity in the context of global governance see Rosenfeld, M, The Identity of the Constitutional Subject: Selfhood, Citizenship, Culture, and Community (London, Routledge, 2010)Google Scholar. A discussion on the potential relevance of these concepts beyond the particular example of advanced regional integration that the EU now represents goes beyond the reach of this chapter.

³³ See Preamble to the Treaty on the European Union. Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union [2010] OJ C83/15.

³⁴ In this chapter, the impact of the case law and adjudicatory practices of the ECtHR are primarily assessed in as much as they can potentially impact the formation of constitutional identity in the EU. The impact that the EU constitutional space can exert on Council of Europe countries that are not EU Member States is less relevant to this analysis.

³⁵ Rosenfeld, The Identity (n 32).

³⁶ Commission (EC), ‘The Economic Adjustment Programme for Greece’ (May 2010) European Economy. Occasional Papers 61, at http://ec.europa.eu/economy_finance/publications/occasional_paper/2010/pdf/ocp61_en.pdf; Commission (EC), ‘The Second Economic Adjustment Programme for Greece’ (March 2012) European Economy. Occasional Papers 94, at http://ec.europa.eu/economy_finance/publications/occasional_paper/2012/pdf/ocp94_en.pdf.

³⁷ Cf Treaty on Stability, Coordination and Governance in the Economic and Monetary Union. Signed on March 2, 2012. Preamble para 15, available at www.european-council.europa.eu/media/579087/treaty.pdf.

³⁸ Carrera, S, De Somer, M, and Petkova, B, The Luxembourg Court as a Fundamental Rights Tribunal? The Legitimacy of the Post-Lisbon Treaty Fundamental Rights System in Question (Brussels, CEPS, 2012)Google Scholar, available at www.ceps.eu/book/court-justice-european-union-fundamental-rights-tribunal-challenges-effective-delivery-fundamen.

³⁹ Upon accession to the ECHR, the acts of the EU would be subject to external judicial review, see Draft legal instruments on the accession of the European Union to the European Convention on Human Rights, available at www.coe.int/t/dghl/standardsetting/hrpolicy/cddh-ue/CDDH-UE_documents/CDDH-UE_2011_16_final_en.pdf.

⁴⁰ Sweet, A Stone, The Judicial Construction of Europe (Oxford, Oxford University Press, 2004)CrossRefGoogle Scholar.

⁴¹ Kelemen, DR, Eurolegalism: the transformation of law and regulation in the European Union (Cambridge, Mass, Harvard University Press, 2011) 5 CrossRefGoogle Scholar.

⁴² For instance, in the landmark Lüth case (BverfGE 7, 198) the German Federal Constitutional Court reconsidered the traditional understanding of fundamental rights as regulating the relationship between the state and its citizens and having vertical effect only. Although the Court asserted that the primary effect of fundamental rights is to limit the government, the effect of fundamental rights went further, establishing horizontal effect. They became ‘objective values and constituted the highest principles of the whole system’ (emphasis added). Grimm, D, ‘Constitution Issues in Substantive Law: Limits of Constitutional Jurisdiction’ in Pernice, I, Kokott, J and Saunders, C (eds), The Future of the European Judicial System in a Comparative Perspective (Baden-Baden: Nomos, 2006) 277 Google Scholar, 277–78.

⁴³ BVerfG, Oct. 12, 1993, 89 BVerfGE 155, 1993, 1 CMLR 57 (1994) (Maastricht).

⁴⁴ For instance, see the Czech Constitutional Court decision in Sugar Quotas Regulation II, Pl. ÚS 50/04 [2006] no 154/2006 Coll., English translation available at: http://angl.concourt.cz/angl_verze/cases.php (retrieved 5 August 2009).

⁴⁵ Majone, G, ‘Europe’s “Democratic Deficit”: The Question of Standards’ (1998) 4 European Law Journal 5 CrossRefGoogle Scholar; Decker, F, ‘Governance beyond the Nation-State. Reflections on the Democratic Deficit of the European Union’ (2002) 9 Journal of European Public Policy 256 CrossRefGoogle Scholar; A Føllesdal and S Hix, ‘Why There is a Democratic Deficit in the EU: A Response to Majone and Moravcsik’ (2005) European Governance Papers no C-05-02, www.connex-network.org/eurogov/pdf/egp-connex-C-05-02.pdf.

⁴⁶ For instance, with the Lisbon Treaty the national parliaments of the Member States are given the possibility of scrutinising the Commission’s proposals. See Protocol on the role of national parliaments in the European Union, Protocol No 1 to the Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union [2010] OJ C83/203.

⁴⁷ Despite the fact that it is rightfully argued that the European public space is still weak (see van de Steeg, M, ‘Theoretical Reflections on the Public Sphere in the European Union: A Network of Communication or a Political Community’ in Bee, C and Bozzini, E (eds), Mapping the European Public Sphere: Institutions, Media and Civil Society (Farnham, Ashgate, 2010)Google Scholar, a pan-European media has been developing in the past couple of years. Electronic publications such as the EUObserver, EUROActive, Presseurop.eu, as well as the printed European Voice and, most recently, Europe Today, are struggling to make a difference.

⁴⁸ According to a study of Eurostat published in 2008, the largest immigrant population in Europe was composed of non-EU citizens, with Moroccans being the most represented group that ranked first in flows to Spain and Belgium. See Eurostat, ‘Population and social conditions’ (2008) Statistics in focus 98/2008, at http://epp.eurostat.ec.europa.eu/cache/ITY_OFFPUB/KS-SF-08-098/EN/KS-SF-08-098-EN.PDF. In the aftermath of the ‘Arab Spring’, it is to be expected that immigration to the EU from the Middle East has increased. Albeit small as a ratio of the overall population in the Balkans and in Central and Eastern European countries, the Roma population there can also serve to illustrate cultural heterogeneity.

⁴⁹ Case C-145/88 Torfaen Borough Council v B & Q plc [1989] ECR I-3851; Case C-312/89 Union départementale des syndicats CGT de l’Aisne v SIDEF Conforama, Société Arts et Meubles and Société Jima [1991] ECR I-997 (French Sunday Trading); Case C-332/89 Criminal proceedings against André Marchandise, Jean-Marie Chapuis and SA Trafitex [1991] ECR I-1027; Case C-169/91 Council of the City of Stoke-on-Trent and Norwich City Council v B & Q plc [1992] ECR I-6635. The cases concerned the validity of legislation restricting trade on Sundays; see Maduro, MP, We the Court: The European Court of Justice and the European Economic Constitution: A Critical Reading of Article 30 of the EC Treaty (Oxford, Hart Publishing, 1998)Google Scholar.

⁵⁰ Case C-341/05 Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet et al [2007] ECR I-11767.

⁵¹ Case C-438/05 International Transport Workers’Federation, Finnish Seamen’s Union v Viking Line ABP, OÜ Viking Line Eesti [2007] ECR I-10779.

⁵² For the two sides in this polemic see Barnard, C, ‘Employment Rights, Free Movement and the EC Treaty and the Service Directive’ in Rönnmar, M (ed), EU Industrial Relations v. National Industrial Relations: Comparative and Interdisciplinary Perspectives (Alphen aan den Rijn, Kluwer Law International, 2008)Google Scholar and Azoulai, L, ‘The Court of Justice and the Social Market Economy: The Emergence of an Ideal and the Conditions for Its Realizations’ (2008) 45 Common Market Law Review 1335 Google Scholar. See also Proposal of Council Regulation COM (2012) 130 (the so-called Monti II Regulation).

⁵³ See, eg, Craig, PP, ‘The Treaty of Lisbon: Process, Architecture, and Substance’ (2008) 33 European Law Review 137 Google Scholar.

⁵⁴ Ibid.

⁵⁵ Post, and Siegel, , ‘Roe Rage’ (n 10) 375 Google Scholar.

⁵⁶ Ackerman, , ‘Living Constitution’ (n 26) 1755 Google Scholar.

⁵⁷ Post, and Siegel, , ‘Roe Rage’ (n 10) 381 Google Scholar.

⁵⁸ Everson, M and Eisner, J, The Making of a European Constitution: Judges and Law beyond Constitutive Power (Abingdon, Routledge-Cavendish, 2007) 6 Google Scholar.

⁵⁹ CfBickel, AM, The Least Dangerous Branch: The Supreme Court at the Bar of Politics, 2nd edn (New Haven, Conn, Yale University Press, 1986)Google Scholar; Waldron, J, ‘The Core Case against Judicial Review’ (2006) 115 Yale Law Journal 1346 CrossRefGoogle Scholar.

⁶⁰ Stanford v Kentucky 492 US 361 (1989).

⁶¹ Below n 64.

⁶² Unlike the Convention, the wording of Article 9 of the Charter of Fundamental Rights of the European Union [hereafter: Charter] does not explicitly restrict the right to marry to apply solely to marriages between men and women (Charter of Fundamental Rights of the European Union, March 30, 2010, 2010, OJ (C 83) 389.

⁶³ Goodwin v UK 2002-IV ECtHR (2002).

⁶⁴ See Kahn, P, ‘Interpretation and Authority in State Constitutionalism’ (1993) 106 Harvard Law Review 1147 CrossRefGoogle Scholar.

⁶⁵ Kennedy v Louisiana 554 US 407 (2008).

⁶⁶ Atkins v Virginia 536 US 304 (2002).

⁶⁷ Roper v Simmons 543 US 551, 578 (2005).

⁶⁸ Enmund v Florida 458 US 782 (1982).

⁶⁹ United States Constitution Amendment VIII reads: ‘Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted’.

⁷⁰ Enmund v Florida 458 US 782 (1982):

⁷¹ Graham v Florida 130 S Ct 2011 (2010).

⁷² Miller v Alabama and Jackson v Hobbs 567 US nyr (2012).

⁷³ K Henning, ‘From Graham to Miller and Jackson: Holding to Constitutional Principle and Ending Juvenile Life Without Parole’ (2012) ACS Blog, www.acslaw.org/acsblog/fromgraham-to-miller-and-jackson-holding-to-constitutional-principle-and-ending-juvenile-li.

⁷⁴ Miller v Alabama and Jackson v Hobbs (n 72) p 9.

⁷⁵ Miller v Alabama and Jackson v Hobbs (n 72) p 8.

⁷⁶ Hills, R Jr, ‘Counting States’ (2009) 32 Harvard Journal of Law & Public Policy 17 Google Scholar, 24.

⁷⁷ Furman v Georgia 408 US 238 (1972).

⁷⁸ Gregg v Georgia 428 US 153 (1976).

⁷⁹ Kennedy v Louisiana 554 US 407 (2008) p 10.

⁸⁰ Lawrence v Texas 539 US 558 (2003).

⁸¹ Ré, RM, ‘Can Congress Overturn Kennedy v. Louisiana?’ (2010) 33 Harvard Journal of Law & Public Policy 1031 Google Scholar, 1073.

⁸² Case C-36/02 Omega Spielhallen- und Automatenaufstellungs-GmbH v Oberbürgermeisterin der Bundesstadt Bonn [2004] ECR I-9609. In Omega the CJEU deferred to the decision of the German court, which evoked human dignity in order to justify a ban on a laser game resembling homicide. The ban was in conflict with the freedom to provide services under Article 59 TFEU. However, the CJEU pointed out that the standard adopted by the national court would be upheld due to the unique German understanding of human dignity as a result of the Holocaust. It would not, however, apply in other EU MS. However, the concept of human dignity has not received consistent interpretation in German law either. As pointed out by the applicant, and briefly mentioned in the Opinion of Advocate General Stix-Hackl, other similar games such as Paintball and Gotcha have been allowed in Germany.

⁸³ Rozakis, CL, ‘The European Judge as Comparatist’ (2005) 80 Tulane Law Review 257 Google Scholar, 272.

⁸⁴ The standard formula that the CJEU used before the adoption of the Lisbon Treaty can be found in Case C-540/03 European Parliament v Council, [2006] ECR I-5769, para 35:

Usually any relevant case law of the ECtHR is referenced either in the judgment or the opinion of the Advocate General.

⁸⁵ The constitutional function of some of the ECtHR’s decisions has been recently discussed by Wildhaber, L, ‘Rethinking the European Court of Human Rights’ in Christoffersen, J and Madsen, M (eds), The European Court of Human Rights Between Law and Politics (Oxford, Oxford University Press, 2011) 204 CrossRefGoogle Scholar.

⁸⁶ Resolution Res (2004)3 of the Committee of Ministers on judgments revealing an underlying systemic problem (adopted by the Committee of Ministers on 12 May 2004 at its 114th Session). Available at https://wcd.coe.int/ViewDoc.jsp?id=743257&Lang=fr.

⁸⁷ Ibid.

⁸⁸ Keller, and Sweet, Stone (eds), Europe of Rights (n 1) 11 Google Scholar.

⁸⁹ For a statistical account of the role and strategies of non-state third parties before the ECtHR cf L van den Eynde, ‘Short Overview of the Litigation Practices of Non-Governmental Organizations before the European Court of Human Rights’ (2011) European Yearbook on Human Rights 539–48.

⁹⁰ The author wishes to express her gratitude to legal representatives of Amnesty International, AIRE and the Equality and Human Rights Commission interviewed for the purposes of this article.

⁹¹ Evolutionary refers to the interpretation of the Convention as ‘a living instrument’, first proclaimed in Tyrer v UK Series A no 26 (1978).

⁹² Goodwin v UK 2002-IV ECtHR (2002) (declaring transsexuals to have a right to marry under article 12 of the Convention. Hirst v UK (no 2) 2005-IX ECtHR (2005) (finding the UK’s blanket denial of voting rights for prisoners in violation of the right to vote under the Convention). Arguably, the Court’s decision to ground some of its judgements on sources beyond Europe can still be viewed as a typical European attitude, open to developments in foreign and international law.

⁹³ Harris, D et al, Law of the European Convention on Human Rights (London, Butterworths, 1995) 10 Google Scholar.

⁹⁴ Table 25.1 presents a sample of cases in which the plaintiffs relied on the so-called qualified rights in the period after the adoption of Protocol 11 up until 2011. Contrary to absolute rights such as the right to life, qualified or conditional rights afford protection if certain conditions are met and are thus subject to balancing, cfGreer, S, The European Convention on Human Rights: Achievements, Problems and Prospects (Cambridge, Cambridge University Press, 2006) 233 CrossRefGoogle Scholar. The ECtHR used consensus analysis before the adoption of Protocol 11 and beyond the area of qualified rights—for a broader overview, see Dzehtsiarou, K, ‘Does Consensus Matter? Legitimacy of European Consensus in the Case Law of the European Court of Human Rights’ (2011) Public Law 534 Google Scholar.

⁹⁵ EB v France App no 43546/02 (2008) (pronouncing as discriminatory national policies preventing homosexuals to adopt children).

⁹⁶ Goodwin v UK 2002-IV ECtHR (2002), para 92.

⁹⁷ Hirst v UK (no 2) 2005-IX ECtHR (2005),

⁹⁸ EB v France App no 43546/02 (2008).

⁹⁹ A, B, and C v Ireland App no 25579/05 (2010).

¹⁰⁰ Solanke, I, ‘“Stop the ECJ”?: An Empirical Analysis of Activism at the Court’ (2011) 17 European Law Journal 764 CrossRefGoogle Scholar.

¹⁰¹ The author wishes to thank the interviewed five EU law practitioners for their time and insightful comments.

¹⁰² Carrera, S and Petkova, B., ‘The Role and Potential of Civil Society and Human Rights Organizations through Third Party Interventions before the European Courts: The Case of the EU Area of Freedom, Security and Justice’ in De Witte, B et al (eds), Judicial Activism at the European Court of Justice: Causes, Responses and Solutions (Cheltenham, Edward Elgar, forthcoming 2012)Google Scholar.

¹⁰³ Ibid.

¹⁰⁴ Case 11/70 Internationale Handelsgesellschaft mbH v Einfuhrund Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125.

¹⁰⁵ Lenaerts, K, ‘Interlocking Legal Orders in the European Union and Comparative Law’ (2003) 52 International and Comparative Law Quarterly 873 CrossRefGoogle Scholar.

¹⁰⁶ Koopmans, T, ‘The Birth of European Law at the Crossroads of Legal Traditions’ (1991) 39 American Journal of Comparative Law 493 CrossRefGoogle Scholar, 505.

¹⁰⁷ Lenaerts, K and Guttiérez-Fons, JA, ‘The Constitutional Allocation of Powers and General Principles of EU Law’ (2010) 47 Common Market Law Review 1629 Google Scholar, 1632.

¹⁰⁸ Groussot, X, General Principles of Community Law (Groningen, Europa Law Publishing, 2006) 19 Google Scholar.

¹⁰⁹ Ibid, 23.

¹¹⁰ Groussot, , General Principles (n 108) 27 Google Scholar.

¹¹¹ Groussot, , General Principles (n 108) 29–32 Google Scholar.

¹¹² Lenaerts, ‘Interlocking’ (n 105) and Lenaerts and Guttiérez-Fons, ‘Constitutional Allocation’ (n 107).

¹¹³ Lenaerts, ‘Interlocking’ (n 105).

¹¹⁴ Joined cases C-120/06 P and C-121/06 P Fabbrica italiana accumulatori motocarri Montecchio SpA (FIAMM) and Fabbrica italiana accumulatori motocarri Montecchio Technologies LLC (C-120/06 P), Giorgio Fedon & Figli SpA and Fedon America, Inc (C-121/06 P) v Council and Commission [2008] ECR I-6513.

¹¹⁵ Fiamm (n 114) Opinion of AG, para 55.

¹¹⁶ Lenaerts, ‘Interlocking’ (n 105) and Lenaerts and Guttiérez-Fons, ‘Constitutional Allocation’ (n 107).

¹¹⁷ Fiamm (n 114) para 58.

¹¹⁸ Maduro, We the Court (n 49) 72.

¹¹⁹ Joined Cases 46/87 and 227/88 Hoescht AG v Commission [1989] ECR 2859.

¹²⁰ Case 374/87 Orkem v Commission [1989] ECR 3283.

¹²¹ Case C-50/00 P Unión de Pequeños Agricultores v Council (UPA) [2002] ECR I-6677, para 79.

¹²² A Arnull ‘Private Applicants and the Action for Annulment since Codorniu’ (2001) 38 CML Rev. 7; Craig, P EU Administrative Law (Oxford, Oxford University Press, 2006) 340-44CrossRefGoogle Scholar.

¹²³ Case 25/62 Plaumann & Co v Commission [1963] ECR 95.

¹²⁴ UPA (n 121).

¹²⁵ Art 263 para 4 TFEU.

¹²⁶ UPA (n 121) para 79.

¹²⁷ UPA (n 121) para 85.

¹²⁸ UPA (n 121) para 86.

¹²⁹ UPA (n 121) para 77.

¹³⁰ Chalmers, D, Davies, G and Monti, G (eds) European Union Law. Cases and Materials (Cambridge, Cambridge University Press, 2010) 424 CrossRefGoogle Scholar.

¹³¹ Hills, ‘Counting’ (n 76) 25.

¹³² Hills, ‘Counting’ (n 76) 25.

¹³³ Brauch, JA, ‘The Dangerous Search for an Elusive Consensus: What the Supreme Court Should Learn from the European Court of Human Rights’ (2009) 52 Howard Law Journal 277 Google Scholar.

¹³⁴ In this respect, an unfortunate precedent from the early case law of the ECtHR is Klaas v Germany Series A no 28 (1978) where this Court upheld German antiterrorism laws permitting extensive phone tapping due to a perceived increasing use of such surveillance methods among the contracting parties.

¹³⁵ Posner, RA, The Problems of Jurisprudence (Cambridge, Mass, Harvard University Press, 1990) 113 Google Scholar.

¹³⁶ Ibid.

¹³⁷ Jacobi, T, ‘The Subtle Unraveling of Federalism: The Illogic of Using State Legislation As Evidence of an Evolving National Consensus’ (2006) 84 North Carolina Law Review 1089 Google Scholar, 1105.

¹³⁸ For instance, the comparative law materials on which both the Chamber and the Grand Chamber of the ECtHR based its reasoning in Sahin v Turkey App no 44774/98 (2005) were found to be ‘patchy and riddled with inaccuracies’ or not precisely relevant to the subject matter of the case ( Rorive, I, ‘Religious Symbols in the Public Space: in Search of a European Answer’ (2009) 30 Cardozo Law Review 2677, 2682Google Scholar). In Kennedy v Louisiana the US Supreme Court was asked to rehear the case as it had overlooked a federal military statute allowing for the death penalty in cases of child rape. The Court however defended its choice of federal constitutional law that applies to civilians as the only relevant benchmark for measuring the existence of consensus (Kennedy v Louisiana 554 US 407 (2008) 2–3 (statement respecting the denial of rehearing)).

¹³⁹ Jacobi, ‘The Subtle Unraveling’ (n 137).

¹⁴⁰ Art 4 (2) TFEU provides a safeguard for the maintenance of plurality in the EU: ‘The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government.’

¹⁴¹ Rees v the United Kingdom, App No 9532/81, 106 Eur Ct HR (ser. A) (1986); Sheffield and Horsham v the United Kingdom, App No 22985/93 and 23390/94, 1998-V Eur Ct HR (1998).

¹⁴² See Cover, RM, ‘The Uses of Jurisdictional Redundancy: Interest, Ideology and Innovation’ (1981) 22 William and Mary Law Review 639 Google Scholar.