欧洲一体化欧洲一体化进程中成员国“宪法特质”教义及其历史制度意涵

The Constitutional Identity Doctrine in the Member States during the Process of European Integration and Its Historical-Institutional Implications

欧洲一体化曲折进程的表现之一在于成员国宪法秩序对于欧盟法优越地位的排斥。迄今为止,它仍是国内研究讨论欧洲一体化所包含的公法结构时容易被忽略的议题。德国联邦宪法法院于2009年做出的里斯本判决证立了"宪法特质"教义,获得其他成员国宪法法院在判决中的追随。凭借对国内宪法秩序的守护,成员国宪法裁判得以审查欧盟法律,并实际限制了欧盟法在成员国层面的优先地位。在宪法现实主义立场之上,以"宪法特质"教义为线索,通过"历史—制度"视角可揭示欧盟层面立法及裁判权威、成员国宪法秩序及其宪法裁判之间的紧张结构,而这一结构指向的则是欧洲一体化现实带来的关于共同体本质的追问。

The rejection by the Member States’constitutional orders of the supremacy of the EU law presents the winding process of the European integration.This is an overly neglected topic in the existing studies in Chinese academia on the public law framework embedded in the European integration.The Lisbon Ruling decided by the German Constitutional Court in2009 entrenched the doctrine of constitutional identity and has been followed by the constitutional courts of the other Member States.By defending the national constitutional orders,the constitutional adjudication in the Member States managed to review the EU law and substantively limited the supremacy of the EU law.From the perspective of constitutional realism,the constitutional identity doctrine could be taken as a leading case to illustrate the tensions between the EU law and its judicial authority on one side and the national constitutional orders and constitutional adjudication of the Member States on the other side.Such a strained structure then points to the inquiries about the nature of the Community that was brought up by the reality of the EU integration.