European Constitutional Courts Research Articles

Legal security of the protection of judicial constitutional control: general guidelines for understanding

This article is devoted to the study of the new courts, which found a common European language of constitutionalism, which they not only learned to pronounce, but also could express new ideas in this language. At the same time, obtaining international standards is much more than adaptation, it was a mutual process. The real exchange of ideas was supported by the unique publicity that the international political situation offered to the new courts. Although only the Constitutional Court of South Africa is bound by the Constitution to consider foreign constitutional cases, constitutional courts today usually operate on a comparative law basis. On the other hand, László Szółom recalled a new mechanism of international cooperation: the Conference of European Constitutional Courts and the Commission for Democracy through Law (the «Venice Commission»). The integrative influence of the Venice Commission is indeed important and serves the globalization of constitutional justice. In addition, speaking about the specifics of constitutional control in Ukraine, it should be noted that as of 2019 it is a full-fledged special court, not a political body. This direction follows both from its functions and scope of jurisdiction, and from the analysis of constitutional guarantees for it as a collegial body and judges. In this context, the position regarding the understanding of constitutional control as an important component (one of the mechanisms) of legal protection of the constitution is valuable. Research in this direction is a productive direction of the development of legal science. The established courts have already found a common European language of constitutionalism, which they not only learned to pronounce, but also could express new ideas in this language. At the same time, obtaining international standards is much more than adaptation, it was a mutual process. The real exchange of ideas was supported by the unique publicity that the international political situation offered to the new courts. Although only the Constitutional Court of South Africa is bound by the Constitution to consider foreign constitutional cases, constitutional courts today generally operate on a comparative law basis. On the other hand, László Szółom recalled a new mechanism of international cooperation: the Conference of European Constitutional Courts and the Commission for Democracy through Law («Venice Commission»). The integrative influence of the Venice Commission is indeed important and serves the globalization of constitutional justice.In addition, speaking about the specifics of constitutional control in Ukraine, it should be noted that as of 2019, it is a full-fledged special court, and not a political body. This conclusion follows both from its functions and scope of jurisdiction, and from the analysis of constitutional guarantees for it as a collegial body and judges. In this context, the position regarding the understanding of constitutional control as an important component (one of the mechanisms) of legal protection of the constitution is valuable. Research in this direction is a productive direction of the development of legal science. The updated judicial system has already found a common European language of constitutionalism, which they not only learned to pronounce, but also could express new ideas in this language. At the same time, obtaining international standards is much more than adaptation, it was a mutual process. The real exchange of ideas was supported by the unique publicity that the international political situation offered to the new courts. Although only the Constitutional Court of South Africa is bound by the Constitution to consider foreign constitutional cases, constitutional courts today generally operate on a comparative law basis. On the other hand, László Szółom recalled a new mechanism of international cooperation: the Conference of European Constitutional Courts and the Commission for Democracy through Law («Venice Commission»). The integrative influence of the Venice Commission is indeed important and serves the globalization of constitutional justice. In addition, speaking about the specifics of constitutional control in Ukraine, it should be noted that as of 2019, it is a full-fledged special court, and not a political body. This conclusion follows both from its functions and scope of jurisdiction, and from the analysis of constitutional guarantees for it as a collegial body and judges. In this context, the position regarding the understanding of constitutional control as an important component (one of the mechanisms) of legal protection of the constitution is valuable. Research in this direction is a productive direction of the development of legal science.

Court-Packing Accomplished – The Changing Jurisprudence of a Subordinate Constitutional Court

The worldwide decline in democracy poses a major challenge to the independence of constitutional courts, which are the guardians of constitutionalism and the rule of law. The international literature on constitutional adjudication is therefore understandably concerned with how judicial independence is undermined in different types of authoritarian regimes. However, less attention has been paid to how the practice of these courts evolves when they are directly or indirectly controlled by the government. This article examines how the practices of the Hungarian Constitutional Court changed following the successful court-packing by its government, which exercised its constitution-making parliamentary majority to subvert the Court, which was once one of the most activist constitutional courts in Europe. In this case, political influence was fullyexercised; this study shows how the Constitutional Court, in order to maintain a semblance of independence, uses several different methods to uphold the government’s will. The Hungarian example may be instructive as it illustrates where the dismantling of judicial independence can lead.

THE REBELLION OF CONSTITUTIONAL COURTS AND THE NORMATIVE CHARACTER OF EUROPEAN UNION LAW

AbstractThis article offers a reconstruction and assessment of the emerging rebellion of European constitutional courts against the exceptionless supremacy of European Union (EU) law. It presents the ontological theories of supremacy and how the Court of Justice of the EU (CJEU) overcame the first two major challenges of its history: the existential challenge of canonizing the general doctrine of supremacy and the Solange challenge of national fundamental rights. It provides an account of the emerging ultra vires challenge, including its root cause and evolvement, and provides an assessment and sets out proposals. The article demonstrates that the crux of the matter is not the primacy of EU law but the interpretive primacy of the CJEU. It argues that the rebellion was triggered by the perception that the CJEU case law features a declining normative and an increasing policy character. The debate about the CJEU's evolutionary interpretation, in a certain sense, parallels US constitutional law's debate between originalism and the living constitution, with the difference that the EU is a pluralist legal order.

The Reasoning of Constitutional Courts in Europe

The Reasoning of Constitutional Courts in Europe

Self-Citations and Citations to European Constitutional Courts by the Austrian Constitutional Court

The Austrian Constitutional Court (VfGH) cites – frequently itself, but also other (constitutional) courts. This article describes comprehensively the citation behavior of the VfGH based on both citations of its own case law and citations of foreign case law, meaning citations to the European Court of Human Rights (ECtHR), the European Court of Justice (ECJ) and other national constitutional courts of Member States of the European Union. This allows an innovative identification of so-called leading cases. With regard to self-citations, we identify key decisions that have shaped the jurisprudence of the VfGH. The identification of the 20 most frequently cited decisions of the ECtHR and the ECJ also provides an insight into the evolution of Austria’s legal integration in Europe using the example of the case law of the VfGH. The data shows that, apart from the ECtHR and the CJEU, only the German Federal Constitutional Court plays a – albeit small – role in the case law of the VfGH. The VfGH makes almost no reference to other European constitutional courts.

Has constitutional pluralism ever been tried out? •

AbstractConstitutional identity has been viewed with suspicion by a number of orthodox EU law scholars. That suspicion is understandable in the light of the German approach to the issue of constitutional conflicts. The Bundesverfassungsgericht, which often sets the tone among constitutional courts in Europe, indeed tends to solve those conflicts on the sole basis of the Basic Law, with little consideration for EU law, thereby discrediting constitutional identity. This paper aims to show, against a background of comprehensive constitutional pluralism, that the German approach is not exclusive of more reasonable approaches by other constitutional courts, as witnessed in relation to the French and the Italian courts. It is on the basis of a pluralist reading of Article 4(2) TEU, as the EU law provision on the basis of which certain core elements of the national constitutions can be reasonably accommodated, that those constitutional courts have either devised constitutional identity or engaged with the CJEU within a shared constitutional framework that defines both the argumentative and substantive limits of constitutional identity. In so doing, far from representing a failure of constitutional pluralism, those constitutional courts stretch the latter to its ultimate limits in a way that has not yet been experienced.

Constitutional identity, a new legal Babel in Europe

AbstractConstitutional identity appears as an increasingly frequent argument in the case law of constitutional courts in Europe. For many authors, it is a way to initiate dialogue with the European Union on equal terms. In this article, we argue that dialogue is not always a source of harmony, because the terms of the interaction are not exactly the same in Luxembourg and in the member states of the European Union. The Court of Justice of the European Union interprets the national identity of the member states in a way that is not always similar to the content given by the States to their constitutional identity. As a consequence, constitutional identity may allow the Member States to strengthen the specificity of their constitutional rules and, in turn, weaken the unity of European constitutionalism. Far from being an Esperanto, constitutional identity rather appears as the new legal Babel in Europe.

Judicial dialogue on data retention laws: A breakthrough for European constitutional courts?

Abstract In 2006 the European Union (EU) adopted a directive which imposed on telecommunication operators an obligation to store all the telecommunication data (data retention) and provide access to retained data to state authorities in order to combat serious crime. The new legislation had to been implemented by all EU Member States. Immediately after the directive was issued, it triggered controversy. Substantial reservations against this measure had been confirmed by five European constitutional courts already within the first eight years since its introduction. In 2014 the Court of Justice of the European Union (CJEU) also acknowledged those reservations. Since then, further European constitutional courts invalidated domestic legislation on data retention. This jurisprudence posed a unique research opportunity to verify whether a genuine judicial dialogue within the varied legal systems occurred in the EU. In this article we analyze jurisprudence of constitutional courts, CJEU, and the European Court of Human Rights (ECtHR) on data retention. We identify interactions between domestic and international standards of privacy protection. The main method employed is a comparative study of all the judgments (following their translation) along with a simultaneous analysis of the common EU regulatory framework that all of those judgments challenged. A pivotal finding was an identification of three basic models clearly describing approaches taken by the constitutional courts involved. As the basis for our models, we used the approach of constitutional courts to two pan-European courts: ECtHR and CJEU. We claim that the analyzed jurisprudence constituted an important building block in the construction of a constitutional tradition relating to the protection of privacy based on the European Convention of Human Rights. Existence of this tradition led to the 2014 CJEU judgment (and to subsequent judgments of national constitutional courts).

European Constitutional Courts and Transitions to Democracy

European Constitutional Courts and Transitions to Democracy

CONSTITUTIONAL IDENTITY IN THE ARGUMENTATION OF DECISIONS OF CONSTITUTIONAL COURTS

The latest trend in modern European constitutionalism is the issue of constitutional identity. Constitutional courts, which are the embodiment not only of the protection of the Constitution, but also of the limitation of power, are influential subjects of assessing the country’s international obligations and their implementation in national legislation. The purpose of the article is to analyze the constitutional identity in the argumentation of decisions of constitutional courts.
 The research method is a comparative legal analysis of the practice of constitutional review bodies in order to assess the expression of the concept of respect for national identity, which has become a condition and principle of legal integration in the European region. In addition, empirical analysis of decisions of constitutional courts was used. Using the system-structural method, the doctrine of «constitutional boundaries» as a component of constitutional identity is analyzed.
 It is justified that the concept of «identity» appeared and began to be actively used by European constitutional courts to justify decisions related to the processes of European integration and the expansion of the influence of supranational institutions of international organizations, including the European Union. It is proved that the decisions of constitutional courts should be based on national legal values, taking into account international practice and the principle of the supremacy of the Constitution. At the same time, national courts must take into account the country’s international obligations when making decisions. In today’s world, constitutional courts cooperate with the courts of international organizations, which form a common case law in the member states, in particular on the interpretation of human rights. This is manifested in the citation by constitutional courts in their acts of decisions of supranational judicial bodies. It should also be noted that the constitutional court may be guided by the positions of international courts in forming its legal position, but according to the doctrine of judicial discretion, the national court is free to assess the circumstances of the case and it is best acquainted with national features and specifics of national law.
 The analysis of the decisions of the bodies of constitutional proceedings, which used the concept of constitutional identity, gave grounds to claim that the courts in their practice in their interpretation appealed to different arguments depending on the specifics of the case. For example, in formulating the doctrine of constitutional boundaries, the Constitutional Court of Italy, in substantiating its decision, used at the same time an argument by analogy, an argument of agreement, an argument of general principles. The Federal Constitutional Court of Germany in its decision in the case of the Maastricht Treaty resorted to naturalistic and systemic arguments.
 It is concluded that constitutional identity is a system of interpretive arguments used by constitutional courts to substantiate decisions that verify compliance with the national specifics of constitutional norms. Of course, this applies to the categories of so-called «difficult cases», for the argumentation of which requires a system of strong arguments.

ʻJudicial Activismʼ in Europe: Not a Neat and Clean Fit

Abstract Achieving a proper balance between enforcing the constitution and avoiding that the courts exercise a policy-making function that that is better left to legislatures is not without its difficulties. In the United States, this issue has gained substantially higher traction giving rise to intense activism talk. The relevant American literature has exerted a deep fascination abroad, also in the light of the current globalization of constitutional discourse. Yet, the article intends to advance two claims: first, it warns against an uncritical import of US-style notions of judicial activism to continental Europe; second, it argues that contemporary research on comparative judicial activism currently has low explanatory utility. The first section takes a glimpse of the relevant US literature ‒ both legal and empirical ‒ to shed light on the multidimensional essence of the concept. Section 2 proceeds to articulate three sets of tentative reasons why activism talk should be ʻhandled with careʼ. These reasons pivot on considerations around structure, culture, and type of decisions in continental Europe. After parsing out each aspect, an argument is made that US-style judicial activism is too dependent on the US form of government; too divisive and as such unsuitable to the different European legal professional culture; and misleading, as the way European constitutional courts display activism in their decisions is distinctive. Ultimately, the article argues for the avoidance of US-style notions of judicial activism in European constitutional discourse.

European Constitutional Courts and Transitions to Democracy (Book Review)

European Constitutional Courts and Transitions to Democracy (Book Review)

Consensus Decision Making: A Comparative Analysis of Judging and Judicial Deliberations

This article seeks to shed new light on how judicial consensus is formed. Through a multi-country series of 17 interviews with judges and clerks in six different courts – both ordinary and constitutional – across Europe, I investigate how judges negotiate and bargain to create final outcomes, and how the deliberative process itself may help to shape outcomes. Interview responses suggest two factors affect the probability that judges will be able to reach consensus outcomes: the complexity of the case and the background of the case rapporteur. These interview responses are then paired with an original dataset of case outcomes from seven European constitutional courts. The dataset of court outcomes suggests that the complexity of the case matters greatly, though limited testing shows judicial backgrounds do not appear to be a significant factor in the creation of consensus.

Explaining Media Coverage of Constitutional Court Decisions in Germany: The Role of Case Characteristics

ABSTRACT Research on the media coverage of decisions by the U.S. Supreme Court has revealed that the newsworthiness of a court decision – as determined by specific case characteristics – influences the likelihood that the decision will be covered by the media. However, in the context of European constitutional courts, media coverage of court decisions can be understood to be a form of justice reporting that focuses on general public interest and is operationalized by case characteristics that indicate the newsworthiness of the decisions. Using the case of the German Federal Constitutional Court, the determining factors behind whether court decisions are featured in the German media (i.e., that they receive media coverage in at least one newspaper article) are expounded. A local text alignment measurement of court decisions and newspaper articles enables media coverage to be identified based on original data on 3,404 decisions and 9,436 newspaper articles from between 2008 and 2018. The results demonstrate that media coverage of the German Court is not affected by declarations of unconstitutionality, though coverage is more likely when a decision is accompanied by a press release, an oral hearing, a dissenting opinion, or a combination of all three items. As these decisional aspects are the prerogative of the FCC, the results demonstrate that the German Constitutional Court has the necessary instruments to independently influence media coverage.

Do constitutional entrenchment clauses matter? Constitutional review of constitutional amendments in Europe

Abstract Do constitutional entrenchment clauses matter? And if yes, how? This article examines these questions by analyzing a comprehensive collection of 154 decisions issued by European constitutional and supreme courts from 1945 up to 2016, on the constitutionality of constitutional amendments. The article shows that entrenchment clauses do matter: in the vast majority of decisions studied, the claimants and/or the courts referred to a constitutional entrenchment clause. About one-fourth of these cases resulted in the invalidation of a constitutional amendment, most of which were based on an “eternity clause,” that is, the most extreme type of entrenchment clauses. However, the article also demonstrates that most of these invalidations can be assessed as instances of democracy-adverse judicial activism. The article concludes, therefore, that entrenchment clauses cannot be considered an unambiguous instrument for the protection of democratic constitutionalism.

Constitutional Courts in Civil-Law Western Europe: Quantitative Approaches

This chapter summarizes the state of the art concerning empirical studies about constitutional courts in civil-law Western Europe. There is a solid, even if not very extensive or exhaustive, empirical literature on civil-law Western European constitutional courts. Still, a broad overview of the empirical literature seems to confirm that it is mostly driven by concerns about local dynamics in specific Western European countries and less so about any more general comparative assessment. There is a very limited number of quantitative studies using data from multiple countries and looking for possible common and causal patterns.

Does Investor-State Dispute Settlement Discriminate Against Nationals?

AbstractThis Article answers the question of whether investor-state dispute settlement (“ISDS”) discriminates against nationals by providing foreign investors with an extra avenue to challenge state measures. The complaint that ISDS is discriminatory as a matter of principle has surfaced before several European constitutional courts—including the German Federal Constitutional Court and the European Court of Justice—in connection with the ratification of the Comprehensive Economic and Trade Agreement between Canada and the European Union (“CETA”). This Article rejects this complaint. The Federal Constitutional Court was able to leave the question of discrimination open in the applications for a preliminary injunction to stop ratification. It will have to take a stand, however, in the principal proceedings. If the Court were to side with the applicants, it would sound the death knell not only for the CETA in its present form, but also for the multilateral investment court system promoted by the European Union and, in particular, Germany. The point made by the applicants in the CETA complaint is not only of importance in a European constitutional law context. Whether ISDS is per se discriminatory is a fundamental issue which requires answering before any reform steps in relation to ISDS are addressed.

Common and Comprehensive European Definition of Hate-Speech Alternative Proposal

AbstractEurope needs to define the term and legal (criminal & constitutional) concept of “hate speech” precisely. The definition must be written in legal literature and in legislation. It must also be offered by the European Constitutional Courts and, last but not least, by the ECtHR. A descriptive definition offered inter alia by the ECtHR judgement in case of Vejdeland vs. Sweden (2012) was only a guidance. The new ECtHR judgement in the case of Carl Jóhann Lilliendahl vs. Iceland (11th of June 2020) addressed “homophobic speech” as “hate speech” directly. By combining the ECtHR case-law on freedom of expression in the last five years with understanding of this concept in the Slovenian Criminal Code (and with only subordinated reference to the understanding of this term by the European Commission) the author offers an alternative proposal for a new, common and comprehensive European definition of “hate speech.”

‘Judicial Dissent in European Constitutional Courts: A Comparative and Legal Perspective’, written by Katalin Kelemen

‘Judicial Dissent in European Constitutional Courts: A Comparative and Legal Perspective’, written by Katalin Kelemen

European “Judicial Monologue” of the Czech Constitutional Court – a Critical Review of its approach to the Preliminary Ruling Procedure

Summary The paper analyses the use of the preliminary ruling procedure by the Czech Constitutional Court and the attitude of this court towards the EU law. The approach of the Constitutional Court to the judicial dialog is also compared with some other European constitutional courts mainly with those who have a similar role in national judiciary or with those who were able to effectively take an advantage of the preliminary ruling procedure. The paper demonstrates that the Czech Constitutional Court took the position that seems to be unsustainable from a long time perspective as the reality of the current development favours the spirit of cooperation among European highest courts.