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Showing papers in "European Constitutional Law Review in 2015"


Journal ArticleDOI
TL;DR: In this paper, a comprehensive examination of the rationale underlying the rule of law framework adopted by the Commission in March 2014 before outlining its main features is presented, and a number of modest recommendations are also offered at a time where an increasing number of voices are asking the Commission to activate the first phase its new mechanism in relation to Hungary and more recently, Poland.
Abstract: This article offers a comprehensive examination of the rationale underlying the rule of law framework adopted by the Commission in March 2014 before outlining its main features. It is argued that while the Commission’s ‘light-touch’ framework falls short of what is required to effectively address internal threats to EU values of a systemic nature, it remains preferable to the new mechanism adopted by the Council in December 2014 and which consists of holding an annual rule of law dialogue among all Member States within the Council. To make the Commission’s framework more workable and effective, which should in turn increase its ‘dissuasive potential’, a number of modest recommendations are also offered at a time where an increasing number of voices are asking the Commission to activate the first phase its new mechanism in relation to Hungary and more recently, Poland.

61 citations


Journal ArticleDOI
TL;DR: The Euro crisis reforms as major example of interstitial institutional change in the EU as mentioned in this paper, and forms of institutional change : unusual sources of law, new tasks for the EU institutions, new organs, competence creep, institutional hybrids, and more differentiated integration.
Abstract: Euro crisis reforms as major example of interstitial institutional change in the EU - Forms of institutional change : unusual sources of law, new tasks for the EU institutions, new organs, competence creep, institutional hybrids, and more differentiated integration - Question whether some or all of this amounts to a ‘constitutional mutation’ of the EU legal order - Reasons to doubt whether the constitutional fundamentals have changed - Alternative thesis: increased institutional variation, deepening the differences between EMU law and the rest of EU law.

39 citations


Journal ArticleDOI
TL;DR: The first Portuguese Stability and Growth Programme, which contained several austerity measures including increase in taxation and public sector workers' salaries reductions, adopted in order to decrease the budget deficit, dates back to March 2010.
Abstract: The impact of the Eurozone sovereign debt crisis in Portugal has been particularly severe. The first Portuguese Stability and Growth Programme, which contained several austerity measures including increase in taxation and public sector workers' salaries reductions, adopted in order to decrease the budget deficit, dates back to March 2010. General elections held in Portugal in September 2009 were won by the Socialist Party (PS) - which was the incumbent party - but without an absolute majority in Parliament. The Stability and Growth Programme 2010-2013 was adopted on 12 March 2010 by the PS minority Government after the parliamentary approval of the State Budget for 2010, and included a strategy of budgetary consolidation aiming at the reduction of the general government deficit to 2.8% of the GDP by 2013, and control of the general government debt growth by 2013. This first set of austerity measures was adopted autonomously by the Portuguese Government and sent to the European Commission (EC or Commission)

21 citations


Journal ArticleDOI
TL;DR: In this paper, the European Court of Justice delivered its decision in the Gauweiler case, concerning the legality of the Outright Monetary Transactions Programme of the European Central Bank, as long as certain safeguards are observed in its implementation.
Abstract: On 16 June 2015 the European Court of Justice delivered its decision in theGauweiler case, concerning the legality of the Outright Monetary Transactions Programme of the European Central Bank. The Court considered the Programme compatible with EU law, as long as certain safeguards are observed in its implementation. The decision has important implications for the powers of the European Central Bank, the constitutional framework of the EU’s Economic and Monetary Union, and for the relationship between the Court of Justice of the EU and the referring court, the German Federal Constitutional Court. This was the first time that the German court had asked for a preliminary ruling, and it remains to be seen whether the national

19 citations


Journal ArticleDOI
TL;DR: In this article, the authors defend multilevel constitutionalism in the context of the European Union, arguing that the EU is a matter of the citizens, not of the institutions.
Abstract: Misconception of the EU is the reason for increasing scepticism – multilevel constitutionalism: conceptualising the EU as a matter of the citizens – critiques and the defence of multilevel constitutionalism – European treaties as a form of a new supranational social contract – embedded autonomy in a system of divided sovereignty – explaining and enhancing democratic legitimacy of the EU – the legitimising principles of additionality, of voluntariness and of open democracy – taking ownership of the EU and taking subsidiarity seriously – backing the European monetary policy by new competences for a common economic and fiscal policies – engaging in European policies as a way out of the crisis.

14 citations


Journal ArticleDOI
TL;DR: In the case of the European Central Bank's bond-buying programme, two delicate and fundamental dimensions of European constitutional order were discussed in this paper, i.e., who ultimately decides on the validity and interpretation of EU law and the nature of the EU's economic and monetary union.
Abstract: At the heart of the Gauweiler case on the European Central Bank’s (hereafter: the Bank) bond buying programme are two delicate and fundamental dimensions of the European constitutional order. The first dimension concerns the autonomy of the European legal order, captured by the question of who ultimately decides on the validity and interpretation of EU law. The second constitutional dimension relates to the nature of the EU’s economic and monetary union and concerns the question of what, if any, the role of the Bank is as a lender of last resort for sovereigns in the euro area.

13 citations


Journal ArticleDOI
TL;DR: In this paper, the authors analyse the soundness of the ECJ's reasoning for the EU Accession to the European Convention on Human Rights and discuss necessary changes to the Draft Accession Agreement, concluding that not all obstacles can be removed by amending the Draft Agreement.
Abstract: EU Accession to the European Convention on Human Rights – Hurdles erected by Opinion 2/13 of 18 December 2014 – Analysis of soundness of the ECJ’s reasoning – Discussion of necessary changes to the Draft Accession Agreement – Criticism that not all obstacles can be removed by amending the Draft Agreement – Treaty change may be necessary – Question whether accession is worth it from a human rights perspective under these conditions

13 citations


Journal ArticleDOI
TL;DR: The distinction between rights and principles in the Charter of Fundamental Rights has been discussed in this article, where the conditions for direct effect and the criteria for distinguishing between Charter rights and principle are discussed.
Abstract: Historical background of the inclusion of social rights in the Charter of Fundamental Rights - Distinction between rights and principles - Similarities between the conditions for direct effect and the criteria for distinguishing between Charter rights and principles - Implications of this distinction for the possibilities of judicial review - Reluctance of the ECJ to explicitly deal with the distinction until Glatzel, as illustrated by its earlier judgments in Dominguez and AMS

11 citations


Journal ArticleDOI
TL;DR: The case law of European Court of Human Rights is not strictly binding on the Court of Justice of the European Union as discussed by the authors, however, the case law is considered to be strictly binding.
Abstract: European Convention on Human Rights and the European Union Charter of Fundamental Rights: relationship – Teleological method of interpretation of the European Court of Justice: meaning, justifications, and criticisms – Originalist method of interpretation: meaning, justifications, and criticisms – Original meaning of Article 52(3) of the Charter: text, drafting history, case law – Conclusion: case law of European Court of Human Rights not strictly binding on the Court of Justice of the European Union.

9 citations


Journal ArticleDOI
TL;DR: Recently, the Court of Justice expanded the scope of EU fundamental rights review in the field of minimum harmonisation to include, in particular, member states action that goes beyond the EU minimum rules.
Abstract: While Alemo-Herron v Parkwood Leisure Ltd (case C-426/11) has received much criticism in recent months, one fundamental constitutional question has passed by unnoticed. Recently, the Court of Justice expanded the scope of EU fundamental rights review in the field of minimum harmonisation to include, in particular, member states action that goes beyond the EU minimum rules. This expansion of EU fundamental rights review is bound to unsettle the division of powers both horizontally (between the EU institutions) and vertically (between the EU and the member states), and at the same time, perhaps counter-intuitively, poses a significant danger for the level of social and environmental protection in Europe

8 citations


Journal ArticleDOI
TL;DR: In this article, the authors take a closer look at these two German instruments for curbing public debt (including the incorporation of the Fiscal Compact into German law) and show that both of them are the result of considerable fear of public borrowing amongst the German public and politicians.
Abstract: Next to taxes, public debt has always been one of the most important funding sources of modern states. Until the beginning of the 19th century, however, it was mainly used in emergency situations, especially (though not only) for the financing of war. Since then, public borrowing has become more and more a regular way of funding state activities and this growing importance can be explained mainly by two developments. First, the number of state-tasks has constantly expanded, and this has automatically led to growing financial demands on the state. Due to the intentions of the politicians (who want to be re-elected, and therefore spend more money to please the public), as well as the requirements of the social welfare state, these demands could not be fully satisfied by taxes only. Both the debt brake and the Fiscal Compact therefore are the result of considerable fear of public borrowing amongst the German public and politicians. Against this background, this article takes a closer look at these two German instruments for curbing public debt (including the incorporation of the Fiscal Compact into German law)

Journal ArticleDOI
TL;DR: The European Parliament and the European Commission see themselves sometimes in contradiction to the supporters of the intergovernmental method, that is to say the purely interstate method of cooperation as mentioned in this paper, while on the other side you have the guardians and keepers of the Community method.
Abstract: As a representative of a member state I may say today that it sometimes seems to me that the representatives in the European Parliament and in the European Commission understand themselves to be the sole true champions of the Community method. They see themselves sometimes in contradiction to the supporters of the intergovernmental method, that is to say the purely interstate method of cooperation. These comprise for them the Council, the European Council and the member states. Those are so to speak the intergovernmentalists, while on the other side you have the guardians and keepers of the Community method.

Journal ArticleDOI
TL;DR: The notion of national sovereignty in the Belgian Constitution has been discussed in this article, with a focus on direct modes of citizen participation in the process of referendums, and arguments for reconsidering the settled case-law of the Council of State regarding the unconstitutionality of the referendum.
Abstract: Interpretations of sovereignty in the Belgian Constitution - The 'national sovereignty' interpretation - Dismantling the myth of the consensual understanding of sovereignty in the Belgian Constitution - Benjamin Constant's understanding of sovereignty - Influence of the paradigm of French post-Revolutionary political liberalism -- Implications of the 'Constantian' interpretation with regard to more direct modes of citizen participation - Arguments for reconsidering the settled case-law of the Council of State regarding the unconstitutionality of referendums

Journal ArticleDOI
TL;DR: In this paper, the authors tackle the broader trend in the European legal area of moving from the formalistic concepts of law and legislation to substantive ones, by illustrating its reflection in the Italian legal system, as an example of a country of the civil law tradition in contemporary continental Europe.
Abstract: The essay tackles the broader trend in the European legal area of moving from the formalistic concepts of law and legislation to substantive ones, by illustrating its reflection in the Italian legal system, as an example of a country of the civil law tradition in contemporary continental Europe. This trend, fostered by the case law of the European Court of Human Rights and somehow implied in the current status of the legal integration within the European Union, has been taken over by the highest Italian Courts. The results of this evolution are a progressive decline of the formal categories that dominated the public law literature in the past two centuries but, at the same time, carry the risk of also losing the democratic meaning of the legality principle, represented by the necessary linkage between the system of sources of law and the separation of powers. In other words, relocating the role of parliamentary legislation means rethinking the role of parliaments vis-a-vis both the government and the courts in the contemporary state. The essay fosters the reflection on this process and on some of its potential disadvantages for the good functioning of European continental democracies

Journal ArticleDOI
TL;DR: In this article, the transformation of the state as a consequence of European integration is discussed, and the consequences for EU law of domestic reform are discussed, as well as the intertwinement of constitutional spheres in the EU.
Abstract: Alien suffrage in Luxembourg – The traditional concept of the electorate – Link between nationality and voting rights – From the national to the resident worker? – The decoupling of nationality and citizenship – The transformation of the state as a consequence of European integration – Comparison to other EU member states – Consequences for EU law of domestic reform – The intertwinement of constitutional spheres in the EU

Journal ArticleDOI
TL;DR: The main question in all important constitutional cases regarding the "law and religion" relationship in Poland followed the same format: it was about policing the limits of the dominant Church's influence upon the (formally) secular state.
Abstract: Until the judgment of the Constitutional Tribunal of Poland (henceforth: the Tribunal) on 10 December 2014, which brought back legally permissibile religious slaughter, the general pattern of all important constitutional cases regarding the ‘law and religion’ relationship in Poland followed the same format: it was about policing the limits of the dominant Church’s influence upon the (formally) secular state. The main question, to which legislators, legal scholars, and of course constitutional judges have been compelled to respond was about confining the public role of the dominant and powerful church. Poland is not a county of religious pluralism, but rather of domination of the hegemonic Roman Catholic Church. According to a recent census, some 87.5 percent of Poles identify themselves as Roman Catholic. Hence, the typical issues arising, constitutionally, at the intersection of religion and the state, are about policing the boundaries between the Church and the state. There is no ‘wall of separation’ in reality, even if it can be found in the Constitution. The Church, with its

Journal ArticleDOI
TL;DR: In this article, the European Court of Human Rights proposed Protocol No. 16 to the European Convention on Human Rights (ECHRS) as part of the reform of the ECHRS.
Abstract: European Court of Human Rights – Protocol No. 16 to the European Convention on Human Rights – Protocol No. 16 as part of the European Court of Human Rights reform – Advisory opinions under Protocol No. 16 – Authority requesting an advisory opinion – The subject matter of an advisory opinion – Legal consequences of advisory opinions

Journal ArticleDOI
TL;DR: Indivisibility of the French republic, sovereignty and French republicanism, universalism in French political thought, and identity-based classifications are discussed in this paper, where a crisis of French universalism is discussed.
Abstract: Indivisibility of the French republic – sovereignty and French republicanism – universalism in French political thought – spatial and social dimensions of the indivisibility doctrine – indivisibility and identity-based classifications – Dilution of the indivisibility doctrine – a crisis of French universalism


Journal ArticleDOI
TL;DR: The proposal to grant Spanish nationality to Sephardic Jews in Iberia as discussed by the authors is based on the European Convention on Nationality (ECNCN) and the Portuguese nationality code.
Abstract: Proposal to grant Spanish nationality to Sephardic Jews – History of Sephardic Jews in Iberia – Sephardim and the Portuguese nationality code – The EU and the nationality laws of the member states – Impact of Union law on the acquisition of Iberian nationalities by Sephardic Jews – European Convention on Nationality – Sephardim from third countries – Micheletti – Nottebohm

Journal ArticleDOI
TL;DR: Divergent regulatory practices in WTO compliance and external trade effects, the regulatory policy of EU ‘legislative’ institutions and the ECJ are explained.
Abstract: The underlying premise of the paper is that all EU institutions have a duty to take WTO compliance and external trade effects into account when (de)regulating. Despite this mandate, not all institutions show the same level of sensitivity towards WTO compliance and external trade effects. The paper unfolds in two main parts. Following this introduction, the first main part contains case studies into the regulatory policy of the EU’s ‘legislative’ institutions and the deregulatory policy of the European Court of Justice (ECJ). They show that taking account of external trade effects or WTO compliance in regulating at the EU level might be the norm, but it is not something that the EU decision-makers practice in all situations. The second main part investigates the reasons for occasional disinterest in WTO law compliance or in external trade effects. It finds that policy reasons alone cannot explain why in some cases the EU has ignored negative external trade effects and WTO compliance, but it establishes that this is frequently a consequence of particular institutional interplay. The conclusion includes a normative statement arguing that all EU institutions should take account of WTO obligations and the external trade effects of EU rules, not only because this brings the EU’s actions in line with its official aims and commitment to multilateralism, but also because it benefits both EU citizens and companies as well as those in third countries.

Journal ArticleDOI
TL;DR: The Court of Justice of the European Union has spoken: accession to the European Convention on Human Rights on the terms specified in the Draft Accession Agreement is incompatible with Union law as it stands and as established by the Court.
Abstract: The Court of Justice of the European Union has spoken: accession to the European Convention on Human Rights on the terms specified in the Draft Accession Agreement incompatible with Union law as it stands and as established by the Court of Justice. Few really expected this outcome - all the more since the Court had put its stamp on some essential elements in the negotiations, by an unprecedented and increasingly explicit institutional intervention in the lead-up to the draft accession agreement - or should that have been a warning? The decision whether to accede to the EECHRis not for the Court to determine. This is ultimately for the member states to decide, either qua members of the Council as the EEUtreaty-making power, or member states as masters of the EEUTreaties in the framework of the amendment procedure - this follows from Article 218(11) TTFEU(though the European Parliament and Commission will inevitably be involved in both instances)

Journal ArticleDOI
TL;DR: In this article, the Court of Justice in Dano inaugurates the third decade of the EU's acquaintance with EU citizenship and casts the right to reside as a privilege of the self-subsistent and accepts that those who are not can exclude from social benefits granted to needy nationals and the economically active.
Abstract: Amidst growing fears both for and of the free movement of persons in the EU, the judgment in Dano inaugurates the third decade of the Court of Justice's acquaintance with EU citizenship. It casts the right to reside as a privilege of the self-subsistent and accepts that those who are not can be excluded from social benefits granted to needy nationals and the economically active. The case specifically concerned, once again, a provision under German law which denies foreign jobseekers access to the so-called basic provision benefits for persons capable of earning a living but nevertheless in need of social assistance. The judgment has, however, wider implications. Not only will some of the other member states have received it with relief, hoping that their current and prospective limitations on the access to benefits may now be shielded from further scrutiny, but it should also draw a line under political and legal debates on how to bar what is depicted as welfare tourism by dint of free movement. This article proposes a threefold assessment of this judgment

Journal ArticleDOI
Davide Paris1
TL;DR: In this article, the primacy of the European Court of Justice is challenged by a specific way of access to the constitutional courts, through a question of constitutionality raised by ordinary courts.
Abstract: The +Italic Simmenthal -Italic judgment of 1978 shed light for the first time on the tension between the centralised model of judicial review of legislation +Superscript 1 -Superscript and the principle of primacy of EU law. 2 However, it has only been in recent years that the difficult coexistence of the two systems has become evident, so much so that it now questions the fundamental role of the centralised review of legislation as hitherto known in Europe, and perhaps, in the long run, its very survival. 3 Technically, what is particularly challenged by the principle of primacy is a specific way of access to constitutional courts, through a question of constitutionality raised by ordinary courts. Obviously, this is not just a question of pure procedure. What is at stake is the constitutional courts' 'core business', i.e. the protection of fundamental rights that might be taken away from them to the benefit of ordinary courts in partnership with, and under the guidance of, the Court of Justice

Journal ArticleDOI
TL;DR: In 2014, the Polish Constitutional Tribunal delivered a long-awaited judgment in which it assessed the compatibility of particular provisions of domestic law on covert electronic surveillance with the Constitution of the Republic of Poland and the Convention for the Protection of Human Rights and Fundamental Freedoms (henceforth: the Convention).
Abstract: On 30 July 2014, the Polish Constitutional Tribunal delivered a long-awaited judgment in which it assessed the compatibility of particular provisions of domestic law on covert electronic surveillance with the Constitution of the Republic of Poland (henceforth: the Constitution) and the Convention for the Protection of Human Rights and Fundamental Freedoms (henceforth: the Convention). The case was heard after seven joint motions were filed in 2011 and 2012 by the Human Rights Defender (Ombudsman) and the Attorney General. The case discussed is not only significant because the judgment was passed by the Tribunal, sitting as a full bench and after almost three years of deliberations, but because it challenged provisions that concern fundamental issues relating to the protection of privacy in the digital era. Moreover, the Tribunal assessed

Journal ArticleDOI
TL;DR: In this paper, the Court of Justice ruled that Directive 2011/82/EU facilitating the cross-border exchange of information on road safety related traffic offences +Superscript 1 -superscript was invalid.
Abstract: On 6 May 2014, the Court of Justice ruled that Directive 2011/82/EU facilitating the cross-border exchange of information on road safety related traffic offences +Superscript 1 -Superscript was invalid. The main point of the dispute between the European Commission on the one side and the European Parliament and the Council on the other was the legal basis of this act. While the Commission based the proposal on Article 71(1)(c) TEC (now Article 91 TFEU) concerning transport policy, the European Parliament and the Council adopted Directive 2011/82/EU on the basis of Article 87(2) TFEU concerning police cooperation. This ruling thus in fact concerns the intersection between 'internal market policy' +Superscript 2 -Superscript (transport policy) and the Area of Freedom, Security and Justice (police cooperation)

Journal ArticleDOI
TL;DR: Torresi et al. as mentioned in this paper obtained university law degrees from the University of Macerata (Italy) and subsequently had those degrees recognised in Spain via the procedure of +Italic homologacion -Italistic.
Abstract: Access to the legal profession in Italy is reserved to holders of a five-year university degree in law who have participated in an apprenticeship of at least 18 months and have passed a state examination, held once a year, consisting of three written tests and an oral interview on five areas of law. On average, over 61% of the applicants fail the written tests every year. +Superscript 1 -Superscript This has prompted a significant number of Italian law graduates to seek recognition of their university degree in other member states where access to the bar is subject to less onerous requirements. Angelo Alberto Torresi and Pierfrancesco Torresi, two Italian brothers, obtained university law degrees from the University of Macerata (Italy) and subsequently had those degrees recognised in Spain via the procedure of +Italic homologacion -Italic . In accordance with the Spanish legislation in force at the time, +Superscript 5 -Superscript on the basis of their homologation certificate, the Torresi brothers were able to enrol as ' abogados ejercientes ' in the register of the Ilustre Colegio de Abogados de Santa Cruz de Tenerife (Bar of Santa Cruz de Tenerife, Spain) without sitting any exam or providing any proof of professional experience. Three months later, they lodged applications with the Bar Council of Macerata in Italy to be registered in the special section of the lawyers' register devoted to established lawyers. Having received no reply within 30 days, the applicants instituted proceedings before the Consiglio Nazionale Forense (CNF; the Italian National Bar Council) claiming that, as the ECJ held in Wilson, registration in the special section was solely conditional upon the presentation of a certificate attesting to registration with the competent authority in the 'home' member state, 6 which they had obtained from the relevant Spanish authorities and attached to their applications to the Macerata Bar Council

Journal ArticleDOI
TL;DR: In the case of the +Italic S.A.S. - Italic v France ruling, the authors, the Strasbourg Court has endorsed the French Republican approach to laicite, together with a more socio-ethical concept of human beings based on the face-to-face encounter.
Abstract: The +Italic burqa -Italic - also sometimes (and inaccurately) referred to as niqab - raises key questions as to the competing concepts of rights and religious freedom in Europe. +Superscript 1 -Superscript The answer will vary according to one's point of view. In its recent +Italic S.A.S. -Italic v France ruling, +Superscript 6 -Superscript the European Court of Human Rights seems to have set limits to a free-choice conception of human rights in general and to religious freedom in particular. In upholding the French ban on the burqa on the basis of the ' vivre ensemble ' principle, the Strasbourg Court has endorsed the French Republican approach to laicite , together with a more socio-ethical concept of human beings based on the face-to-face encounter. W


Journal ArticleDOI
TL;DR: The Dark Side of Functional Differentiation (DSDF) as discussed by the authors is a recent work that analyzes the 2008 financial crisis in terms of functional differentiation theory and the functional differentiation framework.
Abstract: In this edited volume, legal theorists, sociologists, and historians discuss the question of how the 2008 financial crisis can be analysed in terms of system theory. This follows from the sub-title, The Dark Side of Functional Differentiation, which leaves open an intriguing ambivalence. Is the ‘dark side’, namely the crisis, intended in the sense of obscuring the functional differentiation theory, due to the ‘expansion of economic rationality beyond the borders of the economic system’, as Kjaer puts it in the Introduction (xv)? Or is it intended rather in the sense of an evil vis-à-vis the differentiation’s benefits for civilisation, namely how international terrorism was depicted vis-à-vis globalisation (‘the dark side of globalisation’)? Unlike accounts of the EU’s responses to the crisis from different legal approaches, the book promises to analyse such crisis by combining a ‘constitutional perspective’with the functional differentiation theory. This may sound unfamiliar to many constitutionalists, but they should not deny the volume attention for that reason. I refer especially to those driven by the conviction that the state/constitution relationship rests on historical, not on logical or on axiological, grounds, and are thus willing to confront the issue of how constitutionalism deals with the phenomena of globalisation. Here they join legal and non-legal theorists participating in the intricate debate about ‘postnational constitutionalism’, where methods and approaches, if not languages, are inevitably juxtaposed. Nonetheless, ‘it is clearly not enough for constitutionalism to convince constitutionalists’. The volume is divided into three sections, respectively entitled ‘The Financial Crisis in a Systemic Perspective’, ‘Dynamics’ and ‘Reactions’.