European Constitutional Order Research Articles

Sorteando los inconvenientes del artículo 7 TUE: el advenimiento del control jurisdiccional del Estado de derecho

The reality of recent years has shown an increasing number of cases in which some governments are consciously seeking to undermine systematically Union’s key values. It is then that we have become aware of the inadequacies of Art. 7 TEU to address systemic challenges against these values, allowing for an unfortunate impasse in the Council. However, since the end of 2017, a series of fundamental judgements have revealed the ECJ’s firm will to act as guardian of the orthodoxy of the European constitutional order in order to protect at least judicial independence in the Member States. In this context, infringement procedures through the accelerated procedure and accompanied by the interim measure of suspension under the warning of large fines have proven to be an effective way of reacting to this crisis of the rule of law. Also before the Union itself, the Court of Justice tries to make prevail the different profiles of the rule of law, although in some areas the balance is unconvincing. As long as this continues, there is certainly a contrast between the Union’s control of respect for the rule of law by itself and the opposite attitude towards its Member States.

In this Issue

In this Issue

Justified Multi-level Parliamentarism: Situating National Parliaments in the European Polity

Parliamentarism in the European Union (EU) is in crisis. The pooling of powers at the European level is not matched either by the new powers of national parliaments to scrutinise governmental policy-making or by the expansion of the authority of the European Parliament. What is needed is a new approach to strengthening parliamentarism in the EU that places national parliaments at the heart of the constitutional process. Strengthening the Conference of Parliamentary Committees for Union Affairs of Parliaments of the European Union (COSAC) and transforming it into a constitutional body with the power to stimulate the development of the European constitutional order is the appropriate strategy.

The ECJ as the Guardian of the Hungarian Constitution: Case C-286/12 Commission v. Hungary

Many feared that by adopting the new Hungarian fundamental law a 'light' version of constitutionalism will come into effect, a new constitutional system where classical understandings of individual liberty and separation powers are not valid anymore. Many areas spring to one's mind to demonstrate these concerns: data protection, media legislation or the very case in question, the early retirement of judges. Interestingly, both the European Court of Justice (ECJ) and the Hungarian Constitutional Court ruled on this issue, and as the case presents an interesting co-operation or co-dependence of Member State and European constitutional order both decisions will be portrayed.

Two Perspectives on the Realization of the European <I>ne bis in idem</I> Principle

Two different perspectives on the ne bis in idem principle on the European level, the ‘extradition paradigm’ and the ‘constitutional paradigm’ are presented. Both are rooted in notions concerning the role and function of the ne bis in idem rule in domestic legal systems. Under the constitutional paradigm, the ne bis in idem principle is seen as forming part of an emerging European constitutional order, whereas under the extradition paradigm, the principle is primarily seen as logical consequence of closer cooperation between European States in enforcement matters. Although the European Court of Human Rights (ECtHR) would appear to have fully aligned its interpretation of the element of idem (“the same”) with that of the Court of Justice of the EU (CJEU) there are good indications that their approaches actually diverge significantly in the light of these two different perspectives the role of the ne bis in idem principle.

Constitutional Aspects of a European Civil Code

The idea of a European Civil Code shares an intriguing feature with that of a European Constitution: while both relate to concepts that are well-known at the national level, traditional doctrines of private law and constitutionalism do not seem to fully capture the specific characteristics of these European instruments. Traditional constitutional theory does not take into account such elements as ‘supranational citizenship’ or the co-existence of autonomous political communities that are part of the European constitutional order. Traditional contract law theory does not address the particular tension between market integration and consumer protection that characterises many harmonising instruments in European contract law. Consequently, questions have arisen regarding the definition of the new European constitutional order and the development of an adequate system of contract law for the regulation of the EU’s Internal Market. This contribution explores the common ground in these debates, in order to find out to what extent the private law and constitutional projects can take inspiration from each other. In particular, the focus is on the constitutional credibility and relevance of a European Civil Code.

Constitutional Developments in Europe

Can we still speak of constitutional developments in Europe after the fall of the document called the ‘European Constitution’ in the French and Dutch referenda? Yes, we definitely can do so, for that document was not the founding act of a European constitutional order; it was a step(undoubtedly a very relevant one) in a process that has been ongoing for more than 40 years.The European Community was conceived as an international organisation based on the typical source of international law, a treaty among sovereign states. Inside the organisation the representatives of the Member States, namely their Ministers sitting in a common Council (more precisely, in the sectoral formations of it), were empowered to adopt the legally bindings acts of the Community.

Constitutional Developments in Europe

Can we still speak of constitutional developments in Europe after the fall of the document called the ‘European Constitution’ in the French and Dutch referenda? Yes, we definitely can do so, for that document was not the founding act of a European constitutional order; it was a step(undoubtedly a very relevant one) in a process that has been ongoing for more than 40 years. The European Community was conceived as an international organisation based on the typical source of international law, a treaty among sovereign states. Inside the organisation the representatives of the Member States, namely their Ministers sitting in a common Council (more precisely, in the sectoral formations of it), were empowered to adopt the legally bindings acts of the Community.

“United in Diversity” – The Integration of Enhanced Cooperation into the European Constitutional Order

The “unity dogma” has long characterized the European law discourse. In many of its landmark decisions the European Court of Justice had recourse to the “unity argument,” such as inCosta vs. E.N.E.L., where it rightly states that “the executive force of Community law cannot vary from one state to another … without jeopardizing the attainment of the objectives of the Treaty.” Other expressions of the “unity dogma” include the legal principle of non-discrimination enshrined in the fundamental freedoms, which lie at the heart of the single market, or the political concept ofacquis communautaireobliging new Member States to subscribe to all existing Community laws. Indeed, the establishment of a supranational legal order requires a continued focus on its uniform application in the Member States without which the effectiveness of European law is at stake. My intention is not to call into question the underlying rationale of this quest for unity. The aim of this contribution is rather to show that the asymmetric non-participation of individual Member States in selected areas of Union activity can be embedded into the existing European legal order and does not contradict its constitutional aspirations, thereby giving substance to the Union's motto “United in Diversity.”

European Neo-Constitutionalism: In Search of Foundations for the European Constitutional Order

European Neo-Constitutionalism: In Search of Foundations for the European Constitutional Order