Jan Komarek

Email: J.Komarek@lse.ac.uk
Administrative support: Lucy Wright
Room: European Institute J.104
Tel.  020-7955-6364

Jan Komárek studied law at Charles University in Prague (Mgr. 2001, JUDr. 2002), Stockholm University (LL.M. 2004) and University of Oxford (M.St. 2007, D. Phil. 2011). He worked with the Czech Government Agent before the European Court of Justice at the Ministry of Foreign Affaires, Department of EC Law (2004-2006) and was a legal secretary to the President of the Czech Constitutional Court (2009-2010).

see also Jan Komárek's personal website

 
Research Interests

Jan is interested in the role of judicial institutions in the European integration and theories of European constitutionalism in general. Contrary to some lawyers, he is not excited by “many interesting things you could do with the law”, but rather the limitations of law and legal institutions – things that cannot be achieved by them. Examining such questions involves comparative institutional analysis and the “legal process school” approach, which takes inspiration from the work of constitutional scholars in the United States.

 
External Activities
  • Member of Editorial Board of European Constitutional Law Review

  • Member of Editorial Advisory Board of Review of European Administrative Law

   
Books  

Constitutional Pluralism in the European Union and Beyond (Studies of the Oxford Institute of European and Comparative Law) Matej Avbelj and Jan Komárek, eds. (Hart : 2012)

Constitutional pluralism has become immensely popular among scholars who study European integration and issues of global governance. Some of them believe that constitutionalism, traditionally thought to be bound to a nation state, can emerge beyond state borders - most importantly in the process of European integration, but also beyond that, for example, in international regulatory regimes such as the WTO, or international systems of fundamental rights protection, such as the European Convention. At the same time, the idea of constitutional pluralism has not gone unchallenged. Some have questioned its compatibility with the very nature of law and the values which law brings to constitutionalism. The critiques have come from both sides: from those who believe in the 'traditional' European constitutionalism based on a hierarchically superior authority of the European Union as well as from scholars focusing on constitutions of particular states. The book collects contributions taking opposing perspectives on constitutional pluralism - some defending and promoting the concept of constitutional pluralism, some criticising and opposing it. While some authors can be called 'the founding fathers of constitutional pluralism', others are young academics who have recently entered the field. Together they offer fresh perspectives on both theoretical and practical aspects of constitutional pluralism, enriching our existing understanding of the concept in current scholarship.

 
Selected articles
and chapters in books
 

'Waiting for the existential revolution in Europe' International Journal of Constitutional Law (2014) 12 (1) pp.190-212

This essay argues, contrary to the widespread beliefs that prevailed after 1989, that the experience of post-communist countries and their peoples, both before and after 1989, can bring something new to our understanding of Europe’s present predicament: sometimes as an inspiration, sometimes as a cautionary tale. The lessons offered by post-communist Europe concern some deeply held convictions about the very nature of the EU and its constitutional structure. Only if this experience is absorbed in Europe as its own will post-communist countries truly return to Europe—and Europe become united.

‘The Struggle for Legal Reform after Communism’ LSE Law Society and Economy Working Paper Series, 10-2014

The working paper contains an extended review essay of Zdenĕk Kühn, The Judiciary in Central and Eastern Europe: Mechanical Jurisprudence in Transformation? (2011). The central thesis of the book is that ‘there is a deep continuity in the methods of legal reasoning employed by lawyers in the region, starting in the era of Stalinist Communism, continuing through the era of late Communism of the 1970s and 1980s and up to the current post-communist period’. In this respect the book’s analysis is retrospective, starting in the late nineteenth century, when the Central European legal culture emerged within the ‘Austrian legal tradition’. It provides a rich analysis of legal thinking, institutional practices, and expert as well as public discourse concerning judges, courts and judicial process over the course of the whole of the twentieth century in the region. The book’s central argument concerns our time, however. The continuity of Central European legal thinking is, according to Kühn, ‘manifested in the problems of the first two decades after the collapse of Communism’. In this regard the book turns to the present and future of Central Europe and becomes missionary, offering a diagnosis together with a prescription. The cure lies, essentially, in catching up with the West and adopting its ‘new European legal culture’. More concretely, Kühn argues empathically for the empowerment of the judiciary, which would in his view correspond to the development in the West throughout the second half of the last century. The result is rather ambiguous. On the one hand, the book is engaging and worth reading for anyone interested in post-communist Europe and its past. The book however serves as an interesting exhibit in the gallery of post-communist legal culture, rather than an accomplished study thereof. In what follows I will firstly introduce the book and then turn to its problematic features, which relate to the (still) prevailing discourse concerning post-communism in Europe.

'The place of constitutional courts in the EU'  E.C.L. Review 2013, 9 (3), pp.420-450

'Reasoning with Previous Decisions: Beyond the Doctrine of Precedent' American Journal of Comparative Law (2013) 61 (1) pp.149-172

'Playing with matches: The Czech Constitutional Court declares a judgment of the Court of Justice of the EU ultra vires.'  European Constitutional Law Review 2012, 8(2), 323-337.

The article discusses the decision of the Czech Constitutional Court, which declared a previous ruling of the ECJ ultra vires. It suggests that rather than being a declaration of (judicial) independence from the principle of primacy, the Czech Court's decision was an unmeasured and poorly-reasoned response to a domestic conflict between the Constitutional and Supreme Administrative Court.

'Reasoning with Previous Decisions: Beyond the Doctrine of Precedent' 61 American Journal of Comparative Law, Issue 1 [FORTHCOMING 2013];  also as LSE Law, Society and Economy Working Paper No 9/2012

'Judicial Lawmaking and Precedent in Supreme Courts: The European Court of Justice Compared to the US Supreme Court and the French Cour de cassation' (2008-2009) 11 Cambridge Yearbook of European Legal Studies 399

What does it mean for a supreme court to “make law”? When is it possible to say that its decisions are “precedents?” To what extent should a supreme court’s pronouncements be taken into account by others – lower courts and political branches? And how should these other actors reason with such precedents? This article shows how a particular approach to judicial lawmaking and precedent shapes answers to these questions and examines them in relation to the US Supreme Court and the French Cour de cassation. The findings are then used for a critical analysis of the European Court of Justice’s case law. It is suggested that while the US and French systems have found some ways of reconciling judicial lawmaking with the basic premises of their constitutional and political systems (although they are not entirely satisfactory), the EU system is still waiting for a satisfactory account of the Court’s lawmaking and precedent. The concluding part indicates directions of possible further research, which would address the problems encountered by the Court’s case law.

'Questioning Judicial Deliberations' (2009) 29 (4) Oxford Journal of Legal Studies 805 

Mitchel Lasser’s Judicial Deliberations compares the argumentative practices of the French Cour de cassation, the US Supreme Court, and the European Court of Justice, and examines how they achieve judicial legitimacy. In this review I firstly question the models of judicial legitimacy presented by Lasser. I believe that the French ‘institutional’ model relies far more on the interplay between the Cour de cassation and the legislature than on the system of selection of those who take part in the judicial discourse or on their conception of law which would deny judicial decision a place among the sources of law. I also have doubts about the lack of institutional means of judicial control and the emphasis on ‘argumentative transparency,’ which lies at the core of Lasser’s presentation of the US system. Finally the Court of Justice, somewhat included rather as an afterthought in the book’s central analysis, in my opinion faces rather different problems from those identified in the book. Secondly, I discuss a deeper problem of Judicial Deliberations: its lack of conceptual clarity and the rather scant evidence it provides for some of its bold claims. In conclusion I make the case for a ‘comparative jurisprudence’ approach, suggested some time ago by William Ewald, which in my view Judicial Deliberations follows only in name.

'“In the Court(s) We Trust?” On the Need for Hierarchy and Differentiation in the Preliminary Ruling Procedure' (2007) 32 European Law Review 467

The article advocates limitation of national lower courts’ power to send preliminary references according to Article 234 of the EC Treaty. It shows that many arguments against this are not sufficiently thought out and are used rather mechanically. It proposes the following: 1. Limiting preliminary ruling procedure to courts of last instance as a rule; 2. As a necessary exception to 1, when a lower court considers that one or more arguments for invalidity, put forward by the parties or as the case may be raised by it of its own motion, are well founded, it must stay proceedings and make a reference to the Court for a preliminary ruling on the act’s validity; 3. As a possible exception to 1, the Council can decide which EU law measures may be subject to preliminary references from lower courts. The proposal sees national judicial hierarchy as an important element of the Union judicial process, which can make the preliminary ruling procedure rational and effective, while keeping its original purpose. At the same time it suggests some measures that strike the balance between judicial protection of individuals and effectiveness. The key idea behind the proposal is the need for more trust in national courts, if they are to be truly considered as Union courts.

'European Constitutionalism and the European Arrest Warrant: In Search of the Limits of “Contrapunctual Principles”' (2007) 44 Common Market Law Review 9

The article examines decisions of the Polish Constitutional Tribunal and the German Federal Constitutional Court, which both annulled national implementation of the EAW Framework Decision, and contrasts them with the decision of the Czech Constitutional Court that upheld it. The decisions are put into the context of “contrapunctual law principles” designed by Miguel Poiares Maduro to guide national courts when applying EU law. This serves a twofold aim: firstly to show that although the outcome of the Polish and German Courts’ decisions was the same, each court took a fundamentally different approach in reaching its conclusion. Secondly, the article discusses limitations of “contrapunctual law principles” that correspond to the limits of legal interpretation and reasoning. Mattias Kumm’s principle of best fit and his analysis of constitutional conflict help to find reasons supporting this contention, although it is questioned with insights from general jurisprudence. The article highlights the importance of institutional choice amongst various processes - the judicial and political.

'Federal Elements in the Community Judicial System – Building Coherence in the Community Legal Order' (2005) 42 Common Market Law Review 9

Discusses the traces of hierarchisation in the EU judicial system, in the light of three decisions delivered by the Court of Justice at the turn of the year 2003 - Köbler, Kühne & Heitz and Commission v. Italy. By these decisions the ECJ implemented into the judicial system a kind of appeal and supported authority of its judgments by a sanction of liability in case of their not following by national supreme courts. The ECJ has made its judgments similar to precedents in federal judicial systems. The article however also shows some weaknesses of thus created system.

'Legal Professional Privilege and the EU’s Fight Against Money Laundering' (2008) 27 Civil Justice Quarterly 13 [Case Comment]

The article comments on a judgment of the European Court of Justice in Case C-305/05, Ordre des barreaux francophones and germanophone & Others v Conseil des Ministres, where the Court reviewed the legality of the obligation to inform and cooperate with competent authorities, which is imposed on the legal profession by Directive 91/308/EEC (the 1991 Directive) in respect of money laundering. The case comment is divided into four sections. First, it gives a brief comparison of the scope of LPP provided by the English courts and by the ECJ’s previous case law. Secondly, the context of the case is set out. Thirdly, it examines a particular problem that arose in the case, namely that too narrow a question was referred to the ECJ by the Belgian court. Because of this the ECJ was able to limit its review of the 1991 Directive’s legality to its compatibility with LPP in light of the right to a fair trial and the respect of rights of defence. As a necessary corollary the ECJ did not examine other aspects of the rationale which underlies LPP i.e., that it protects rights, such as the right to privacy and serves to fulfil a number of different aims i.e., better administration of justice or compliance with law. As a consequence the ECJ has left the exact scope of LPP in the EU ambiguous. This could lead to further difficulties, since it is not clear whether e.g. United Kingdom’s implementation of the Directive is compatible with its requirements.

'Infringements in Application of Community Law: Some Problems and (Im)possible Solutions' (2007) Review of European Administrative Law 87 [Case Comment]

On the basis of Case C-508/03, Commission v. United Kingdom, this article shows some problems brought by an infringement procedure, concerning a particular case of misapplication of EC law by Member State’s public authorities. Firstly, some individuals can benefit from the infringement. How is their legal position affected by the ECJ’s judgment? Secondly, is it appropriate for the Commission to bring the action to the ECJ before the case has been finally settled on the national level? Thirdly, are these individuals properly represented before the Court?

'Four Visions of Constitutional Pluralism' (2008) 2 European Journal of Legal Studies 325; a short report was published also in (2008) 4 European Constitutional Law Review 524 [ transcript from a symposium organized together with Matej Avbelj, with Julio Baquero Cruz, Mattias Kumm, Miguel Poiares Maduro and Neil Walker]

What is constitutional pluralism? What does it stand for? What does it want to achieve, contribute, or change in the European integration? Is it a viable, desirable or perhaps even an indispensable theoretical take on it? These were the leading questions discussed in the Symposium “Four Visions of Constitutional Pluralism” at the European University Institute in January of this year. Within the framework of the Legal Theory Working Group and under the auspices of the Academy of European Law, the organizers, Matej Avbelj and Jan Komarek, hosted four key scholars from the field of the EU legal and constitutional theory. Julio Baquero Cruz, Mattias Kumm, Miguel Poiares Maduro, and Neil Walker engaged in a groundbreaking three-hour discussion of their respective theoretical visions of the European integration. This working paper contains a full transcript of the Symposium.