European Constitution Research Articles

Сompetence of the Federal Constitutional Court of Germany and the Constitutional Court of Ukraine: comparative legal analysis

Reflections on «possible constitutions of Europe» can have two directions. On the one hand, one can wonder about the legal form of the European Union: the fact that it is no longer a confederation of states, but not yet a federal state, requires a legal classification, for which a new concept of Verfassungsverbund was created in Germany, that is, a constitutional union. On the other hand, the question arises as to which national constitutions, or which parts of these constitutions, or which individual norms of these constitutions are best used to build a constitutional order in Europe. Solving this issue is not only a classic mission of comparative jurisprudence, but also of the current law of the European Community, since Article 6 of the Treaty onthe European Union declares certain principles of the Western constitutional state «common to all member states» and orders to consider fundamental rights «arising from common constitutional traditions of member countries, as general principles of Community law». Within the framework of the second way of formulating the question, the following description refers to the experience gained during the use of elements of the German Constitution to build other European constitutions. In this article, we will conduct a comparative legal analysis of the powers of the Federal Constitutional Court of Germany and the Constitutional Court of Ukraine. The possibility of legal review guarantees the supremacy of the constitution by sanctioning theviolation of the law of the constitution by repealing the law. According to the experience accumulated so far, an autonomous and independent constitutional court with the possibility of a constitutional appeal is a good way to protect human rights. Constitutional courts have a part of each existing state monopoly, namely the power of parliament to make laws and the power of the supreme court to interpret and apply laws passed by parliament.

The Constitution of 3 May 1791: Testament of the Polish-Lithuanian Commonwealth

The Constitution of 3 May 1791: Testament of the Polish-Lithuanian Commonwealth

Kontekst jest wszystkim. O trudnej sztuce komparatystyki „europejskiego” orzecznictwa sądów konstytucyjnych

Context is Everything. On the Difficult Art of “European” Comparative Studies Jurisprudence of Constitutional Courts Comparative research of the case-law of constitutional courts concerning the membership of a given state in the EU (referred to in the article as “European” case-law of constitutional courts) requires taking into account various contexts in which this case-law is involved. The aim of this article is to indicate and analyze the most important of them, namely: the systemic context, the temporal context, the political context (including related problem of the politicization of the constitutional court), and the theoretical context. Moreover, the article draws attention to the necessity to contextualize “constitutional borrowings”, which acquires special meaning in connection with the perceived phenomenon of abuse of the “comparative argument”. Sometimes the distinguished contexts overlap, for example in the case of the temporal context and political context, but their separation allows for a better understanding of the complexity of comparative research on the European acquis constitutionnel. The specificity of this subject of legal-comparative research proves the correctness of the thesis that the contemporary constitutional comparative law must face several challenges. The first is the integration of the classical “horizontal” comparative method with the “vertical” dimension related to the influence of international and supranational norms on national constitutional systems. The second challenge is related to supporting an interdisciplinary approach to comparative constitutional law, which will take into account the perspective of social sciences, such as political science, sociology or history. The third challenge, then, is related to establishing the right balance between focusing on specific (not only) legal issues related to the analyzed issue and taking into account a broader vision of the directions of changes in European constitutionalism. The fourth challenge, in turn, concerns the popularization of the results of scientific research related to comparative studies of the “European” acquis constitutionnel. The last (and perhaps the most difficult) challenge facing the comparative research of “European” case law of constitutional courts is an attempt to answer the question to what extent this diverse jurisprudence conglomerate is a manifestation of the stability of constitutional law and the constitution, and to what extent it is a driving force for dynamic changes in contemporary public law.

Freedom, democracy and constitutionalism in Europe

Freedom, democracy and constitutionalism in Europe

The Politics of Form in European Constitutionalism

The Politics of Form in European Constitutionalism

Is a Minimal Federal European Constitution for the European Union Necessary? Some Preliminary Suggestions Using Public Choice Analysis

After overcoming the Coronavirus Pandemic with massive spending programs and the possibility of running a deficit at the EU level, a minimal Federal European Constitution is proposed, to provide a legal and democratic base for the European Union. Six basic elements of a future European federal constitution are developed: the European Commission should be turned into a European government and the European legislation should consist of a two-chamber system with full responsibility over all federal matters. Three further key elements are the subsidiarity principle, federalism and direct democracy, which would provide the possibility for European voters to participate actively in political decision making, to break political and interest group cartels, and to prevent unwanted shifting of responsibilities from EU member states to the European federal level.

Konstytucja z 17 marca 1921 r. na tle powojennych konstytucji republikańskich w Europie 1919–1922

The Constitution of 17 March 1921 against the background of the post-war republican constitutions in Europe 1919–1922 After Poland regained its independence in November 1918, the parliament, acting as a constitutional body, enacted the Constitution of the Republic of Poland on 17 May 1921. It is worth setting this event against a broader background. After the First World War, new constitutions were created in Eastern Europe, in particular in those states that had to build their political system from scratch, for example because they appeared on the map of Europe for the first time in history or were reinstated after a long break. These states, or more precisely their elites, had to draw on foreign ideas and achievements due to lack of their own experience. For the states that chose the republican system and disregarded the solutions contained in the constitutions of the United States and Switzerland, the Third Republic of France became a very important source of inspiration, thanks to the regulations contained in the three constitutional acts of 1875, as well as constitutional practice. Admittedly, from 1879 onwards, the constitutional practice increasingly diverged from the letter of the law set out in these three acts. Another source of inspiration for some of the new states in Eastern Europe was the constitution of the German Reich, adopted in 1919. In our part of Europe, if we exclude Estonia, Finland, and Austria – which made an effort to develop their own, sometimes unique, political solutions – it can be noted that the achievements of the Third Republic, in terms of the letter of law and political practice, became a decisive source of inspiration for Poland and Czechoslovakia, while the German Basic Law served as a model for Latvia (to a greater extent) and Lithuania (to a lesser extent). The choices made by the political elites of Poland and Czechoslovakia, however, differed in one fundamental aspect. Poland took as its point of departure the constitutional practice of the Third Republic, formed since 1879, while Czechoslovakia took the letter of the Constitutional Act of 1875. This substantially and differently moulded the form of the political system of each of these states, and subsequently its functioning in practice. Already in the interwar period, it became clear that the decisions taken in Warsaw to make the Sejm the highest organ in the state, modelled after the Chamber of Deputies in France, were less “correct” than the solutions adopted in Prague. In Czechoslovakia, the principle of the separation of powers was taken as the starting point. The principle of the balance of powers was then referred to and the roles of the legislative and executive branches were precisely defined so that this balance would really exist. In this way, the smooth operation of both powers was guaranteed, not only in their relations with each other, but also on a national scale. In Czechoslovakia, the architects of the constitution took into account the principle of the separation of powers alongside the principle of their balance, while in Poland the latter principle was absent, at first in the text of the constitution, and then in practice in the years 1922–1926.

Cross-National Social Influence: How Foreign Votes Can Affect Domestic Public Opinion

Do voters follow the preferences of foreign mass collectives? Despite the growing research on policy diffusion and theoretical debates on the emergence of transnational public spheres, we know little about the impact of foreign votes on domestic public opinion. Yet, the results of elections and referendums may provide a signal to people in other countries and trigger a process of contagion. This study leverages the coincidence of the 2005 French referendum on the European Constitution and the fieldwork of two surveys to analyze the causal effect of cross-national social influence. Results show that the French rejection increased public opposition to the Constitution abroad. A process of cognitive activation explains why knowledgeable voters also grew Eurosceptic after the vote. These findings attest to the interdependence of national publics and contribute to our understanding of mechanisms of social contagion.

What Is Wrong with Solidarity in EU Asylum and Migration Law?

In this article, we explore why solidarity has not worked according to expectation in EU migration and asylum law and why it is unlikely to work in the future. First, we consider discourses of burden-sharing and solidarity in EU law from the 1990s up to the Lisbon Treaty in 2009 to identify emergent path dependencies. This period saw the introduction of primary law provisions on solidarity, such as Article 80 TFEU, as French and Dutch electorates had rejected a European constitution. Second, we perform an analysis of Article 80 through the conceptual history of solidarity, in particular, the dominant Roman law tradition of obligation in solidum and the French tradition of solidarism. We submit that the term ‘solidarity’ is actually a misnomer: already on structural grounds, Article 80 should be read as an alliance clause, countering a threat of irregular immigration. Third, we find that the practice under Article 80 as it develops during the period between 2015 and the 2020 European Commission Pact on Migration and Asylum corroborates this finding. Overall, we find that the concept of solidarity in EU asylum and migration law engenders outcome expectations that it cannot deliver as the defence alliance it is.

The European risk-based approaches: Connecting constitutional dots in the digital age

In recent years, risk has become a proxy and a parameter characterizing EU regulation of digital technologies. Nonetheless, EU risk-based regulation in the digital age is multi-faceted in the approaches it takes. This article considers three examples: the General Data Protection Regulation; the proposal for the Digital Services Act; and the proposal for the Artificial Intelligence Act. These three instruments move across a spectrum, from a bottom-up approach (the GDPR) to a top-down architecture (the AI Act), going through an intermediate stage (the DSA). It is argued, however, that despite the different methods, the three instruments share a common objective and project: they all seek to guarantee an optimal balance between innovation and the protection of rights, in line with the developing features of European (digital) constitutionalism. Through this lens, it is thus possible to grasp the “fil rouge” behind the GDPR, the DSA and the AI Act as they express a common constitutional aspiration and direction. risk-based approach, EU law, constitutional law, digital constitutionalism, digital technologies

Artur Trubalski (red.), Obowiązki człowieka i obywatela w Konstytucji RP z 1997 roku, Wydawnictwo Sejmowe, Warszawa 2020, ss. 182

The following text discusses the book Duties of a person and a citizen in the Constitution of the Republic of Poland of 1997 edited by Artur Trubalski. Since in recent years academic scholars have focused on constitutional rightsand freedoms, it is worth noticing this awaited and actual study. The book consists of six chapters that cover all duties included in the Constitution of Poland. Taking the opportunity, the following review undertakes some issuesthat have not been considered by the authors of this book, i.e., a doctrinal justification of constitutional duties and the scope of the duties in contemporary European constitutions

Architectural History or a Geography of Small Spaces?

Architectural History or a Geography of Small Spaces?

Pierre Uri: The making of a European economic order

In the 1950s Pierre Uri played a significant role in shaping the European eco-nomic order. Thanks to his prominent contributions to the team of advisers that centred around Jean Monnet, both the ECSC and the EEC Treaties were designed to encompass the potential to evolve into a federal constitution for Europe. The paper aims to highlight the role of Pierre Uri in drafting the main features of the institutional, decision-making, and fiscal architecture of early European economic integration.

European constitutionalism: divergent trends (All-Russian scientific Conference with international participation)

All-Russian scientific Conference with international participation “European Constitutionalism: Divergent Trends” was held on the 9 of June 2022 in the Institute of State and Law of RAS. The conference addressed a wide range of problems related to the perception of European constitutional ideas in Russia and their influence on the legal systems of non-western countries, modern constitutional reforms, the functioning of the institution of constitutional review and ensuring of human rights and freedoms. It was attended by representatives of leading Russian scientific and educational institutions, as well as researchers from Belarus, Kazakhstan and Vietnam.

Political Constitutionalism in Europe Revisited

Political Constitutionalism in Europe Revisited

Rodzaje testów judicial review a zasada proporcjonalności

Judicial review in the jurisprudence of the US Supreme Court can take the form of one of three formulas for examining an act or action of an authority (strict scrutiny test, intermediate scrutiny test, or rational basis test). In the context of the constitutional review each of these tests requires an analysis, of three essential aspects: what kind of individual interest is limited, what form of public interest legitimation is required, and how the means and the purpose so indicated are related. A detailed analysis of these standards of proportion, jurisprudentially developed and evolutionarily tightened, in confrontation with the principle of proportionality used in European constitutions (and documents on international protection of human rights) allows to formulate theses about which standard is stronger, which one creates a barrier providing better protection of individual autonomy, and which is more resistant to ‘steps backwards’ in this respect.

The Burden of the European Constitution

The Burden of the European Constitution

APOTEOZA SOCIJALNE DRŽAVE: IMPERATIVNI ZAHTJEV OSTVARENJA SOCIJALNE PRAVDE U REPUBLICI HRVATSKOJ

By deliberate choice of the Croatian constitution-makers, the Constitution of the Republic of Croatia protects all economic, social and cultural rights guaranteed by constitutions of developed European democracies and by the International Covenant on Economic, Social and Cultural Rights to which Croatia is a party. This creates a dual (constitutional and international) obligation for the Croatian legislature to establish a socially just order. Although the constitutional text places both of the human rights generations within the same title, the constitutional jurisprudence adopted a position, whereby socioeconomic rights are excluded from the sphere of organic laws used to elaborate the constitutionally guaranteed fundamental rights and freedoms. This development notwithstanding, the potential of their protection before the Constitutional Court has not been reduced, as the Court has developed an impressive list of doctrinal positions on the nature of social rights, committing to the concept of social state as a foundational element of European constitutionalism. Still, we would be remiss if we did not emphasize the Constitutional Court's passive stance towards the political branches of the government regarding the social rights and must therefore plead for a more active approach in that regard.

The institutional architecture of the European Union: emerging and unresolved questions

ABSTRACT This review article discusses three books that analyse in depth recent trends in the institutional architecture of the European Union. The three books focus, respectively, on the relations between legislatives and executive at the supranational level and within the member states, the self-empowerment strategies of the European Parliament, and the leadership performance of the President of the European Commission. Against this background, the review article makes some points on the state of the art of the institutional system of the EU twelve years after the entry into force of the Lisbon Treaty. The multiple crises that have affected the EU over the last decade have somewhat affected the functioning of its institutions. Meanwhile, any analysis of the European institutional system should fully consider the composite nature of the European constitution and the peculiar interplay of formal and informal institutional change that has marked its evolution.

New Economic Constitutionalism in Europe, by George Gerapetritis. Oxford: Hart Publishing, 2019, pp. 351.

New Economic Constitutionalism in Europe, by George Gerapetritis. Oxford: Hart Publishing, 2019, pp. 351.