A Paradigm Shift in the Role of Courts? Disappearance of Judicial Review through Mutual Trust and other Neofunctionalist Tenets of EU Law

The article submits that EU law has profoundly been changing the role of courts in Europe, from protecting the fundamental rights of individuals – especially in the event of coercive exercise of public power – towards being seen as agents of, or obstacles to, integration, as well as towards a focus on trust, effectiveness and enforcement, and protection of the market and of the neoliberal economic order. The article postulates for the consideration of the discourse that this change is one aspect of a more fundamental, ongoing Kuhnian paradigm shift in European constitutionalism, from the broader classic comparative (especially continental) European understanding of constitutional law to autonomous EU governance. The latter – contrary to the prevailing assumptions – is predicated on different foundational ideas for the exercise of public power, especially functionalism, neofunctionalism, neoliberalism and market integration, and concepts of international law. The growing tensions around the EU law principle of mutual trust exemplify the ‘incommensurabilities’ between the two paradigms; the article devotes a chapter to Birgit Aasa’s EUI doctoral thesis on the CJEU case law on mutual trust, summarising Aasa’s compelling concerns about the systemic unsuitability of trust in the courtroom in Western democratic constitutionalism. The article links Aasa’s research findings to concerns that have been raised with regard to other areas and ways in which judicial review has been disappearing through EU law, including through the neofunctionalist doctrine of ‘Integration through Law’ and through the replication of the US constitutional thinking on the role of courts. The article additionally points to concerns about the resulting far-reaching changes in material constitutional law and fundamental rights protection; these are particularly acute for the post-totalitarian and post-authoritarian constitutional tradition, which, whilst adhered to by more than half of the Member States in both Western and Central and Eastern parts of Europe, is little known in the mainstream EU discourses. The article suggests that questions about the role of courts in European constitutionalism, as well as about the broader paradigm shift, need joined-up, inclusive discussion as part of the debate on the future of Europe. For this to be made possible, a number of structural issues in the EU law scholarly discourse must first be addressed.