The Constitutional Governance of Judges in the EU

From the 2000s, one can observe that facing this situation of real – and no longer only theoretical – constitutional tensions, the ECJ and the national high courts find themselves in an ontological stalemate. On one side, status quo is not bearable, because the happening of an open constitutional conflict could endangered the whole EU. On the other side, the paradigm of the hierarchy of norms doesn't allow any legal solution to escape from this status quo. Our study, which develops a constructivist approach, shows that judicial actors shift from a legal mode of regulation of constitutional conflict risks to an extra-legal mode (the constitutional governance of judges) based on informal mechanisms of cognitive convergence and socializations. Judicial actors develop a semantic of the common belonging and a moral of shared responsibility, and institute informal spaces for dialogue governed by communicative rationality, according to the Habermassian meaning.