Towards an emerging European value consensus? The European Court of Justice, the European Court of Human Rights and national constitutional courts

The acceptance of a set of shared values transcribed in a set of common legal rules is essential for the integrity of a polity. Often in the context of the US Supreme Court, constitutional law has been characteristically qualified both as a cultural product and as a vehicle for the regulation and discipline of extra-judicial constitutional culture (Post, 2003). The judiciary has an important role to play in European integration too. This paper will focus on the constitutional space that form the European Court of Human Rights (ECtHR), the Court of Justice of the European Union (CoJ) and national constitutional courts. In interacting with one another, sometimes deferring to one another’s judgments and sometimes going a step further in an effort to ensure optimal human rights protection while still aware of national sensitivities, these courts are shaping an emerging European-wide value consensus. I will first build on the theoretical fundamentals of constitutional pluralism to then discuss recent controversial abortion (Grogan, ABC v Ireland), gay rights (Goodwin v UK, Kopf v. Austria, Maruko) and freedom of service provision cases (Laval) that cut across these three levels of jurisdiction. Typically, both the ECtHR and the CoJ will raise the standard of rights protection in a given area when a sufficient number of member states no longer limit rights in that area for reasons of public interest. The ''margin of appreciation'' enjoyed by states shrinks as consensus on higher standards of rights protection emerges among states, which then shifts the balance in favour of the right claimant (Stone Sweet & Mathews, 2008). In each of the mentioned cases, the paper will examine the deployment of this so-called "majoritarian activism" (Maduro, 1999) of the courts, that is being complicated though by the fuzziness of the concept of legitimate “margin of appreciation”. I conclude by outlining possible future scenarios in view of EU accession to the European Convention of Human Rights.