Garnering legitimacy and co -operation Sample Clauses

Garnering legitimacy and co -operation. The responsibility for a reasoned ruling of the ECJ on a constitutional reference could not be devolved to a chamber of the Court: since the greatest amount of legitimacy would be needed to have the ruling accepted by all national constitutional courts, only the full Court (or possibly a Grand Chamber)236 would retain the power to make the ruling on a constitutional reference. Moreover,237 pluralist decision-making requires the ECJ to show respect for national constitutional traditions, especially when the referring constitutional court has stressed their importance in its reference. As Cloots observed:238 “Only by showing that making a preliminary reference does not equal loss of fundamental rights protection and national identity, can the ECJ ease the fear many constitutional courts have of entering judicial dialogue and, hence, of making constitutional pluralism true in practice.” Under present rules, creation of a constitutional reference procedure, based on either a revision of Art. 267 TFEU or a new Treaty Article, and new Articles in the Statute and the Rules of Procedure of the CJEU, would still need the agreement of all EU Member States.239 How much better it would be, to 235 Except where a Member State or EU institution requested otherwise under former Rules of Procedure of the ECJ, Art. 109a(3) (again repealed by the Lisbon Treaty). 236 TEU, TFEU and EAEC, Protocol (No. 3) on the Statute of the Court of Justice of the European Union, Art. 16: OJ 2010 C83/210. 237 Cloots (2010), at 670-671. 238 Cloots (2010), at 670. 239 Revision of TFEU or new TFEU Article: Art. 48(2)-(5) TEU; amendments to the Statute of the Court of Justice, Protocol (No. 3) to TEU, TFEU and EAEC: Art. 281 TFEU. Under TFEU Art. 281, the ordinary legislative procedure is maintain and enhance the co-operative relationship, to allow the ECJ to negotiate with national constitutional and supreme courts to agree the constitutional reference procedure – while still allowing the European Parliament and the Council of Ministers the power to enact such measures (but through a qualified-majority vote). Any new procedure would have procedural and substantive repercussions at the national level. For some courts and institutions, changes would need to be made to their jurisdictional rules to allow (or even promote) references to the ECJ. And there still remains the need to address the constant problem of national superior (constitutional) courts refusing to make references to the ECJ or avo...