Showing papers in "European Constitutional Law Review in 2017"

The Constitutional (Im)balance between ‘the Market’ and ‘the Social’ in the European Union

Abstract: An assessment of the balance between ‘the market’ and ‘the social’ by reference to the areas of social policy, the internal market and economic governance – Imbalance resulting from a consitutional displacement of the legislative process (EU and national) and instead decision-making by the judiciary and the executive – Proposals to address the imbalance by reinforcing the role of the EU legislative process and limiting other forms of European integration.

Mapping 'militant democracy': Variation in Party Ban Practices in European Democracies (1945-2015)

Abstract: Introduction – Explaining party bans, political and legal contexts – Banned parties and banning states in Europe, the political context – Nature of banned parties – Nature of banning states – Tolerant and intolerant democracies, the legal context – Evolving rationales for party bans and procedures for proscription – Contemporary rationales for banning parties – Anti-democratic ideology – Non-democratic internal organisation – Party names – Party orientation to violence – Protecting the present order – Evolving rationales for party bans – Weimar and legitimacy paradigms – Conclusions, directions for future research

Towards More Resilience for a Social EU - the Constitutionally Conditioned Internal Market

Abstract: Gap between the EU’s normative commitments to socio-economic justice and the practical workings of its integration project -- Potential for strengthening the social EU by recourse to the Charter of Fundamental Rights of the European Union – Charter normatively commits EU to a constitutionally conditioned Internal Market – Charter curbs property rights and entrepreneurial freedom specifically for the sake of social rights guarantees – Constructive response to legitimacy dilemmas emerging from cases such as Laval, Viking and AGET Iraklis – Reinstating socially embedded constitutionalism at EU levels as an alternative to relegating social integration to national levels

Politics of Judicial Independence and Judicial Accountabilityin Czechia: Bargaining in the Shadow of the Law between CourtPresidents and the Ministry of Justice

Abstract: When the communist regimes in Central Eastern Europe collapsed in the late 1980s, each state in this region was faced with the tasks of restoring judicial independence and reforming the system of the administration of justice. Most countries in the CEE initially returned to the pre-communist model of court administration, in which the executive plays the central role. So did the Czech Republic too. However, this model was subject to the increasing criticism from judges as well as from various international and supranational bodies. The European Commission teamed up with the Council of Europe and eventually came up with the new template, the “EU/CoE Judicial Council Model”. The central feature of this model was a new institution – a judicial council that should be granted most “personal competences” regarding a career in the judiciary. The EU/CoE Judicial Council Model was then endorsed as the only “right” solution that should eradicate the vices of the post-communist judiciaries. As a result of this joint pressure, most countries in CEE adopted the EU/CoE Judicial Council Model. Not the Czech Republic. It became the “outlier case” in the CEE region, the only post-communist country in the process of transition to democracy without a judicial council. Hence, it is particularly interesting to discern how judicial independence and judicial accountability are ensured there. This paper shows that the Czech Ministry of Justice model has underwent significant development and, in doing so, it focuses on the most important phenomenon since the Velvet Revolution – the rise of court presidents to power. It argues that the court presidents step by step eroded the Minister’s sphere of influence and managed to enlarge their own powers. As a result they became the most powerful players in the Czech judiciary with broad powers vis-a-vis individual judges. This development in turn calls for new safeguards of internal independence against the abuse of power by court president.

Addressing Issues of Protective Scope within the Francovich Right to Reparation

Abstract: EU Law – Member State liability in damages – Issues of protective scope about exactly which individuals/interests are protected – Conditions for Member State liability – Intention to confer rights criterion – Tendency towards a ‘checklist’ approach by the Court of Justice of the European Union – Potential implications for scope of Member State liability – Finding appropriate balance between protecting individuals and punishing public bodies – Example of free movement rights – Example of environmental legislation – Example of employment legislation

Can Governments Control Mass Layoffs by Employers? Economic Freedoms vs Labour Rights in Case C-201/15 AGET Iraklis

Abstract: The AGET Iraklis case (C-201/15) revisits the Viking/Laval case law and sheds new light on the uneasy relationship between labour law and the EU’s fundamental economic freedoms. This article examines three sets of issues: the balance between the economic and the social in AGET Iraklis; the interplay between freedom to conduct a business (Article 16 of the EU Charter) and labour rights; and the Economic and Monetary Union dimension of the Court’s ruling in AGET Iraklis. The article makes three key claims. First, it is argued that the Court’s ruling marks a step towards a reconciliation between EU free movement law and labour law. Second, it is argued that Article 16 of the EU Charter of Fundamental Rights can be more ‘dangerous’ to labour rights when EU secondary law is interpreted in the light of that provision (such as in Alemo-Herron). In cases where both EU free movement law and Article 16 are engaged, the latter may not be equally influential. Third, it is noted that the margin of appreciation left to the domestic authorities might lead to further deregulation of the national labour law concerned, as Greece is subject to an economic adjustment programme.

Equality and the Market: the unhappy fate of religious discrimination in Europe

Abstract: Rulings by the European Court of Justice are seldom as anxiously awaited as those delivered by the Grand Chamber inMarch 2017 in the Bougnaoui and Achbita cases. To be sure, the preliminary references by both the French Cour de cassation and the BelgianHof van Cassatie triggered much restlessness for at least three reasons. First, to put the matter in context, the topic of religious freedom (and religious discrimination) has become increasingly prominent in Europe and beyond; the topic of religious minorities (and Islam in particular) tends to occupy centre stage at many debates on integration, migration, and national identity, not to mention the issues of national security and terrorism. Second, the two referrals made in 2015 led to the first authoritative interpretation by the European Court of Justice of the meaning of ‘religious discrimination’ under the 2000/78 Directive – a mere 17 years after the text was passed. Finally, tension and attention were heightened by the strongly opposing opinions of Advocate Generals Sharpston and Kokott. The two questions addressed to the European Court of Justice did exhibit some differences in terms of their original formulation, but beyond the fact that they were delivered on the same day, the rulings do need to be read together in order to fully grasp the scope and meaning of the Court’s intervention. French legal authorities had

The Rise of the Procedural Paradigm: Judicial Review of EU Legislation in Vertical Competence Disputes

Abstract: EU Law-Vertical competence review of EU secondary law-Court of Justice control of the exercise of EU legislative powers-Strict procedural review of EU legislation-Standard of judicial review and in

Mutual disempowerment : case C-441/14 Dansk industri, acting on behalf of Ajos A/S v estate of Karsten Eigil Rasmussen and case no. 15/2014 Dansk industri (DI) acting for Ajos A/S v the estate left by A

Abstract: The judgment of the Court of Justice in Dansk Industri revisits a classic problématique of EU law: Must the national court apply a general principle of EU law in a dispute between private parties and ‘set aside’ a conflicting national legislative provision? And must the national court give effect to an unwritten general principle of EU law, which prohibits age discrimination, even if this requires reversing its long-standing interpretive position and case law? The Court of Justice first decided that general principles of EU law could require that national courts set aside conflicting national provisions in disputes between private parties in the Mangold 2 and Kücükdeveci 3 cases. These judgments drew considerable criticism both within and from outside the Court, accusing it of, amongst other things, judicial activism, adjudicating ultra vires and, not in the least, of imprecise and poor reasoning. The scope of the horizontal effect of the principle remained

The European Court of Justice's Financial Accountability. How the European Parliament Incites and Monitors Judicial Reform through the Budgetary Process

Abstract: European Court of Justice – European Parliament – Accountability through the budgetary process – Fostering the European Court of Justice’s democratic legitimacy through financial accountability – Accountability for how the European Court of Justice organises the institution and conducts its procedures – Efficiency versus quality as yardsticks to assess the Court’s performance – The European Parliament’s ambivalent practice of focusing solely on judicial efficiency – Proposals how the Parliament could take the quality of the European Court of Justice’s judicial process into account when assessing the Court – A different use of judicial statistics – Inciting quality-oriented reforms such as the introduction of amicus curiae participation and bilingual (French/English) deliberations

Two Doctrines of the Unwritten Constitution

Abstract: The Gina Miller judgment of the United Kingdom Supreme Court will be famous for its protection of the rule of law against an overreaching executive. But it should also be remembered for affirming the systematic nature of the British unwritten constitution. The Supreme Court rejected the older theory of the constitution, on which some of the government’s submissions relied, according to which the British constitution is based on the political fact of parliamentary sovereignty (or an equivalent ‘rule of recognition’) and is for that reason different from that of all other states. This was the view outlined by A. V. Dicey and endorsed by the British legal community for almost a century. The Supreme Court majority (and it is possible that the minority does too) rejected Dicey’s constructions and outlined a different theory of the constitution, widely described as the ‘common law’ theory. For this view, the UK’s constitution is higher law made by the conscious decisions of a legislature to create principles of fundamental significance. Joining the EU was a constitutional change brought about by parliament in this way. For this reason, withdrawal from the EU must also be a decision of the legislature by way of an act of parliament. The Supreme Court considers the unwritten constitution to be a system of principles whose origins lie in the legal transformation of the United Kingdom three centuries ago by way of the Bill of Rights 1688, the Act of Union 1707 and other constitutional statutes that created the higher law of the constitution.

The Coming of Age of the Court’s Jurisdiction in the Common Foreign and Security Policy

Abstract: EU external relations law – Court of Justice of the European Union – Common Foreign and Security Policy – Judicial actors – International courts – Jurisdiction – EU law – Primacy – Damages – Infringements – Direct actions – Preliminary references – the Opinion procedure – Staffing – Future scenarios

Comparative Constitutional Law – an Indispensable Tool for the Creation of Transnational Law

Abstract: The continuing importance of the study of comparative constitutional law – A European perspective – The Venice Commission and international monitoring of national constitutional systems – Authoritarian tendencies and the European Constitutional Heritage – Interpretation and application of constitutional provisions depends on the context – Comparative law as a common endeavour of judges, lawyers, and scholars

Litigating Federalism: An Empirical Analysis of Decisions of the Belgian Constitutional Court ∙

Abstract: Belgian Constitutional Court – Conflicts between regions, communities and the central government – Allocation of competences – Decisions with high political content – Degree of political alignment between the parties in litigation and judicial behaviour at the Court – Empirical testing – All decisions of the Belgian Constitutional Court, 1985-2012 – Alignment between the alleged political preferences of the judges and the political affiliation of the Petitioner increases the rate of success of the latter

The European Budgetary Galaxy

Abstract: EU budget – Founding vision of budgetary integration – Budget of citizens and not only of states – Corrections, rebates and national net balances – Convention on the Future of Europe – Comprehensible and transparent budget as a prerequisite for democratic legitimacy – Treaty of Lisbon reforms – Post-Lisbon fragmentation leading to a ‘budgetary galaxy’ – Differentiated budgetary integration likely to endure – Final Report of the Monti High Level Group on Own Resources – Necessity for future reforms to take account of the broader galaxy – Return to a citizen-oriented approach – The Union method

Labour-Market Outsiders, Italian Justices and the Right to Social Assistance

Abstract: Constitutional right to social assistance in Italy – Lack of a universally-accessible, albeit conditional and means-tested, scheme against absolute poverty – Separation of powers – Textualism – Framers’ original understanding – Living constitutionalism and courts’ relationship with public opinion – Italian, EU and international constraints on citizenship and duration-of-residence requirements – Fiscal sustainability

National Parliaments and Constitutional Transformation in the EU

Abstract: Review essay of the following volumes: - C. Hefftler et al. (eds.), The Palgrave Handbook of National Parliaments and the European Union (Palgrave 2015). - D. Jancic (ed.), National Parliaments after the Lisbon Treaty and the Euro Crisis (Oxford University Press 2017). - A. Jonsson Cornell and M. Goldoni (eds.), National and Regional Parliaments in the EU-Legislative Procedure Post Lisbon (Hart Publishing 2017). - N. Lupo and C. Fasone (eds.), Interparliamentary Cooperation in the Composite European Constitution (Hart Publishing 2016).

The Boundaries of Comparative Law

Abstract: Boundaries: between public and private law – Political dimensions of private and public law – Boundaries between domestic law and transnational and international law – Boundaries between law and other disciplines, including economics, comparative politics, normative political theory, and hermeneutic disciplines – National styles of comparative law scholarship – Analytic and pragmatic traditions in comparative law scholarship

From a Community of Law to a Union of Values: Hungary, Poland, and European Constitutionalism : Book review: A. von Bogdandy & P. Sonnevend (eds.), Constitutional crisis in the European constitutional area - Theory, law and politics in Hungary and Romania

Abstract: Despite the absence of an EU ‘capital-C’ Constitution, various dimensions of the EU integration process increasingly tend to be described in constitutional terms. These ‘constitutional dimensions’ of the integration process are not merely a product of academic discussion, but reflect concrete changes in European law and politics and ultimately in the nature of integration itself. In the earlier decades of European integration, the constitutional label was used to describe the construction, thanks to the principles of primacy and direct effect, of a ‘federal-type structure’, guaranteeing the functioning of the European ‘community of law’ described by Hallstein. The constitutionalisation story then acquired a second, thicker element in Mancini and Weiler’s accounts. Along with the recognition of Community law as ‘higher’ law in its relationship to national law, the process of constitutionalisation implied that

Prêt-à-ratifier: The CETA Decision of the French Conseil constitutionnel of 31 July 2017

Abstract: This case note analyses the French Conseil constitutionnel's CETA decision of 31 July 2017 (ECLI:FR:CC:2017:2017.749.DC). The Conseil was the first national court to reach a substantive judgment on whether CETA was compatible with an EU Member State’s constitution, concluding that there was nothing in CETA that was at odds with French constitutional law. Given that CETA will also be subject to ex ante review at the European Court of Justice requested by Belgium, the Conseil constitutionnel’s decision is another milestone in the judicial saga surrounding CETA, but not the end of the road. The note argues that the Conseil employed a dynamic and cooperative interpretation of sovereignty and showed a strong attitude of deference both to France’s political branches and to the EU in terms of international treaty-making. There are, however, some aspects where the decision would have benefited from greater clarity. Nonetheless, instead of undermining France’s constitutional order, the Conseil confirmed the fundamental commitment of France to European integration and international cooperation. More particularly, it refrained from unduly interfering with the ability of the EU and its Member States to continue operating as a collective international actor.

Freedom of Information in the EU in the midst of Legal Rules, Jurisprudence and Ombudsprudence: the European Ombudsman as Developer of Norms of Good Administration

Abstract: European Ombudsman – Free access to information in the EU – Regulation No 1049/2001– Standard of assessment used by European Ombudsman – Legal norms versus norms of good administration and whether good administration can be understood outside legality – European Code of Good Administrative Behaviour and the rather ambiguous concept of maladministration – European Ombudsman as developer of norms of good administration in the area of free access to information – A rather limited role as developer of norms of good administration for the European Ombudsman in individual decisions – Role in ‘translating’ the case law into somewhat more accessible jargon and explaining how existing principles and norms of good governance apply to the circumstances of a specific case – Own inquiries as a policy instrument for advising EU institutions and agencies on how to deal with certain aspects pertaining to access to documents and transparency – Interesting interplay between European Ombudsman and the courts

Talking about European Democracy

Abstract: This editorial comment asserts that, instead of merely conceiving of the challenges to the foundational values common to the Union and member states in terms of the Rule of Law, it is necessary to address democracy as the political founding quality of Union and member states. In doing so, we must understand democracy as essentially open to other contestation and debate, to civil society. To avoid despotism it should never yield to the temptations identifying the represented with the representatives, and divide powers over institutions and other public social actors. It criticizes the weak response of the Commission and other EU institutions to the dismantling of democracy in Hungary and more recently in Poland, and takes the self-defeating reference to the procedure for monitoring and sanctions under Article 7 TEU as "the nuclear option" as symbolic for the unwillingness to take the democratic foundations of the EU seriously.

‘Do You Ever Have One of Those Days When Everything Seems Unconstitutional?’: The Italian Constitutional Court Strikes Down the Electoral Law Once Again

Abstract: There is no peace for electoral legislation in Italy. With its decision no. 35 of 2017, the Italian Constitutional Court (hereafter: ‘the Court’ or ‘the Constitutional Court’) struck down significant parts of the electoral law for the Chamber of Deputies, as approved by Parliament in 2015. The transition of the Italian electoral system from a proportional to a majoritarian system of representation has once again been called into question, only a few weeks after a broad proposal for constitutional reform, initiated by the Government and approved by the Parliament, was finally rejected by the electorate with a referendum held on 4 December 2016. In fact, the decision of the Court has a direct precedent in a judgment it issued in 2014 that opened the Court up to adjudicating, striking down and substantially re-rewriting the core of electoral law for the first time in its jurisprudence. This case note consists of three sections. First, it provides a short overview of tumultuous recent developments in the matter of electoral legislation in Italy. Second, it describes the electoral system for the Chamber of Deputies that was

Not dead yet. Revisiting the ‘Luxembourg Veto’ and its Foundations

Abstract: A constant political reality throughout the history of the European integration project is the inability of the European Union (and before that the Communities) to impose majority decisions on member states when their fundamental interests are at stake, they are politically unwilling or incapable of implementing them, or both. This reality is the consequence of the limited political and executive authority of the Union. The limited authority of the Union is in fact also the rationale behind the Luxembourg Compromise of 1966 and the veto – the so-called ‘Luxembourg veto’ – that followed it in practice. The ‘Luxembourg veto’ is in essence an informal commitment by a limited number of member states to support each other if one of them invokes a vital or fundamental interest. This commitment of some, including notably France and the United Kingdom, is only seldom triggered, and has always been highly contested. However, no member state can escape the limits to the Union’s ability to impose majority decisions. This has recently been recognised by several EU political and constitutional actors.

The unexpectedly talkative 'dumb son': The Italian Constitutional Court's dialogue with the European Court of Justice in protecting temporary workers' rights in the public education sector

Abstract: Judicial cooperation – Italian Constitutional Court – National Constitutional Courts’ attitude towards preliminary reference to the European Court of Justice – First and second preliminary reference of the Italian Constitutional Court in indirect proceedings – Constitutional review of national legislation inconsistent with EU law – Relationship between EU law and constitutional concerns – Added value of Constitutional Courts in protecting constitutional identity – Multilevel protection of fundamental rights – EU Framework agreement on fixed-term work and European Court of Justice case law – Italian legislation on fixed-term work – Italian legislation on recruitment in State schools – Abuse arising from the use of successive fixed-term employment contracts – Judicial defence of workers’ rights – Cooperation between judges and legislators – Balancing between social rights and budgetary constraints – Mascolo case – Taricco case