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The Long Quest for Identity

Political Identity and Fundamental Rights Protection in the European Union

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Edited By Gabriele de Angelis and Paulo Barcelos

The constitutionalisation of the European Union has been a major goal of European politics from the late 1980s until recently. It is supposed to enhance the citizens’ feeling of belonging and give the Union a clearer political identity and legitimacy. The current euro-crisis seems to have stopped the pursuit of an «ever closer» and constitutionalised Union. National interests and intergovernmental bargaining are now at the centre of European business. While we wonder what will become of the European constitutional project, it remains worthwhile to cast additional light onto what it was supposed to be until recently and how it changed the institutional face of the Union. This volume does so by analysing the political and legal facets of constitutionalisation. Contributions delve into the debates that marked the evolution of the constitutionalisation project and its overall institutional consequences, and focus on fundamental rights protection, the implementation of the Charter of Fundamental Rights, legal conflicts between the European Court of Justice and national constitutional courts, and the legal and political balance of power between EU institutions and national authorities with regard to the defence of fundamental rights and the rule of law.

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Section III: Consequences of Constitutionalisation: Legal Dilemmas, Legal Conflicts

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155 Section III Consequences of Constitutionalisation: Legal Dilemmas, Legal Conflicts Legal Certainty in Europe. Legal Pluralism and Argumentative Practices of the European Court of Justice GIOVANNI DAMELE1 Dialogue between Courts in Europe and comparative atmosphere The subject of this article, the relationship between the national courts and the European Court of Justice (ECJ), is in itself neither new nor original. However, this well-known and deeply-analysed issue is here considered from the point of view of legal argumen- tation and interpretation.2 Under these terms, the main question is to see how the plurality of levels of legal protection from the national courts up to the ECJ influences, if it does indeed influence, the practises of legal argumentation. Thus, the main question is the (possible) comparative nature of legal argumentation in this context. The multilevel protection has led to rulings inspired by a comparison between the legal traditions of different countries and different sources of fundamental rights. Some authors have meta- phorically described this state of affairs as “comparative atmos- phere” characterised to a certain degree by “consonance” or “poly- phony”. This conception of multilevel legal protection presupposes 1 The author is researcher at the Institue of Philosophy of Language, Faculty of Social Sciences and Humanities, Universidade Nova, Lisbon. His research is made possible by a scholarship of the Fundação para a Ciência e a Tecnologia. 2 Here I am using the locutions “argumentation” and “interpretation” in a more or less equivalent sense, since every interpretation “in mente interpretis [in...

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