Benvenisti: When Solange I Met Neubauer: National Courts Protecting Global Interests When Reviewing Decisions of International Organizations

Eyal Benvenisti (Univ. of Cambridge - Law) has posted When Solange I Met Neubauer: National Courts Protecting Global Interests When Reviewing Decisions of International Organizations. Here's the abstract:

What is the significance of the Solange I judgment for situations when national constitutional courts (NCCs) are called upon to implement or resist the implementation of an act of an international organisation (IO)? May, or even should these courts follow the German Federal Constitutional Court (GFCC) and indirectly review the compatibility of the measure with the national constitution? What considerations should shape these courts’ approach? In responding to this question, this essay inquires about the positive and negative effects of such an exercise of indirect review on IOs beyond the EU: could such a review undermine the functionality of the IO or its impartiality? I will present an argument in support of the Solange I approach and explain how and why indirect review by NCCs is more likely than not to contribute to an improvement in the functionality and impartiality of IOs. My argument will be partially based on integrating into the Solange I framework the GFCC’s 2021 judgment of Neubauer, in which the Court extended the Basic Law’s protection also to people living abroad. I contend that such an indirect review by an NCC that pays due regard not only to national interests, but also to the rights of foreigners that may be affected by the NCC’s decision to implement or reject the IO measure could improve the functionality of IOs and their adoption of inclusive and accountable outcomes that balance the rights and interests of all affected by the IO.