National Constitutional Law Research Articles

Unconstitutional Constitutional Amendments in European Union Law: Considering the Existence of Substantive Constraints on Treaty Revision

The issue of unconstitutional constitutional amendments is extremely topical in the field of national and comparative constitutional law. In a recent article (2013), Roznai signals that ‘the global trend is moving towards accepting the idea of limitations—explicit or implicit— on constitutional amendment power’. But what about the ‘supranational’ EU? Would there be room to argue that substantive limitations of amendability—explicit or implicit—also exist as regards the EU Treaties? Furthermore, if so, would the Court of Justice of the European Union (CJEU) have the competence to enforce such limits? These questions are the central focus of this article. We argue that accepting the idea of substantive requirements of Treaty revision may be one of the next important steps in the ongoing process of EU constitutionalisation. In the first part of the article, we explore what kind of arguments are being used to justify a doctrine of unconstitutional constitutional amendments in national systems. Next, we ascertain to what extent such arguments can be used to justify a doctrine of unconstitutional constitutional amendment in EU law. In conclusion, we argue that it is quite conceivable that certain EU Treaty amendments would indeed be deemed to be a violation of the Treaties. Moreover, we contend that it is not unimaginable that the CJEU will assume the power to substantively review amendments to the EU Treaties, in cases where the Member States would choose to put forth suspect revisions to these documents.

Is there Life in the Old Dog Yet? Observations on the Political Economy and Constitutional Viability of Common Debt Issuing in the Euro Area

AbstractDeparting from a political economy analysis of the benefits of common debt issuance by the Eurozone member states, we examine to what extent the various proposals for Eurobonds may be considered admissible under EU law and exemplary national (constitutional) laws, including those of Germany, Estonia, France, Ireland and Poland, from which one can deduce general national constitutional requirements applicable in all Eurozone member states. The medium and long-term potential gains from increased Eurozone stability and improved fiscal discipline must be traded off against the considerable legal and political obstacles of implementing any of these proposals. Yet key to the success of any common debt issuance is the effective dealing with the legacy debt of the Eurozone member states.

How Can Eurobonds Be Legally Implemented into European Law?

AbstractThis contribution examines to what extent and under what conditions the various proposals for Eurobonds may be considered to be in accordance with European law (especially Art. 125 TFEU) and the national (constitutional) law of the Member States. It finds that their admissibility primarily depends on the degree to which these proposals would be able to curb debtor moral hazard, which in turn depends on the liability regime chosen: joint and several or pro rata liability. We conclude that most types of Eurobonds would require a Treaty amendment, whose political feasibility is questionable.

Article 260 TFEU Sanctions in Multi-Tiered Member States

Abstract The question at hand is located at the intersection of EU law and national constitutional law, and aims to answer the following problem: namely, how to mitigate federal concerns in the context of infringement procedures and financial sanctions under art. 260 TFEU. This article approaches this question both from the perspective of the Commission and the Court of Justice, as well as from the vantage point of the central and regional governments involved. After analysing the composition of the financial sanctions, we cover the involvement of subnational entities in the infringements proceedings in six tiered Member States (Austria, Belgium, Germany, Italy, Spain, and the UK) and the relevant national provisions for the partition of financial sanctions. The conclusions pertain to both the central and regional level and the EU institutions concerned, adhering to the multi-level relationship subjacent to this article.

Board Gender Quotas in Germany and the EU: An Appropriate Way of Equalising Participation of Women and Men?

The professional equalisation of men and women has become one of the most discussed topics in politics over the last years. As a solution to this problem many European countries have introduced regulations which ensure special quotas for women on the managing boards of companies. The main problem concerning such gender quotas is that the equalisation of men and women is primarily a sociopolitical objective which might result in a possible conflict with national and European constitutional law. Consequently, the current legal situation in Germany and the EU needs to be analysed critically. Therefore the different ways of incorporating gender quotas into the existing legal system must be compared with each other.

Die Rezeption des deutschen Verwaltungsrechts in der spanischen Rechtsordnung. Zugleich eine theoretische Darstellung der Gründe, Etappen und Probleme des unidirektionalen Rechtsvergleichs

<bold>The Reception of German Administrative Law in the Spanish Legal System</bold> At present, German public law exerts a significant influence on Spanish law. Traditionally, Spanish public law has always been wide open to foreign law. From a historical perspective, this was not a peculiarity of Spanish law in the <italic>Ancien Régime</italic>, a time when European States shared the same legal institutions, primarily built on common law. For several different reasons, the nineteenth century brought with it an increasing differentiation of the nascent national administrative and constitutional laws in Europe. Some countries, like Germany and France, shut down their public laws to foreign influences. The same is not true of Spain which continued, right up to the present day, to remain wide open to influences from other countries. The traceable influence of both German scholarly literature and German positive law are good examples of the phenomenon described. The extent of the influence is so wide that it cannot be rightly described as a Spanish-German comparative methodology, but as the reception of German public law in Spain. This study aims at a theoretical analysis of this legal reception. To this end, a primary distinction is drawn between theoretical and normative reception, as both realities do not usually go together. The following exposition is based on two axes: the historical stages of the reception, and the reasons for such wide influence. Historically speaking, a distinction is drawn between the initial methodological reception (early twentieth century); the intense reception since the adoption of the current Spanish Constitution in 1978 (in many respects comparable to the Basic Law for the Federal Republic of Germany); and the current reception that takes place within the framework of European Union law. As for the reasons for the reception, this study distinguishes between final causes (the intrinsic suitability of German law to be exported), intermediate causes (the various ways of academic and institutional connection between Germany and Spain), and final causes (the suitability of Spanish law for receiving foreign influences, especially from Germany).

Going 'Belt and Braces': Domestic Effects of Euro-Crisis Law

This paper considers the effect of the recent EU measures relating to strengthened economic governance both at the EU level and the level of national (constitutional) law. We first explain the scope of EU competence in economic policy and its effects on Member State competence. We will then examine how this competence has been exercised during the past few years, in particular from the point of view of the domestic effects of the six-pack and two-pack, which constitute the ‘Belt’ needed to maintain stability in the euro area and thus hold the ‘trousers’ (economic policy decision-making) up. We then turn to the Fiscal Compact and the budgetary framework directive and their effects at national level, constituting the ‘Braces’ intended to ensure healthy national budgetary policies. The relevant question remains to be whether the current 'belt and braces' rules are the appropriate approach for preventing new crises. There are both legal and political reasons for reconsidering some of the solutions made during the crisis. Maybe the trousers are just too loose?

The Young and the Restless: CESL and the Rest of Member State Law

Abstract: This article deals with the (substantive) scope of the Common European Sales Law (CESL), what it regulates or does not regulate, and how it relates to the remaining national law. It explores more specifically the implications of the EU nature of the CESL, i.e., the consequences of the fact that it is (European) Union law and not just another kind of Convention for the International Sale of Goods (CISG) where you can opt for. Although, as CISG, it is part of domestic law, its position is, in many other respects, different mainly because CISG is not Union law and the CESL is. As Union law, the CESL Regulation takes precedence over - the rest of - national law. The question of whether the CESL is - validly - chosen by the parties is thus not determined by the remaining national law but by CESL itself. CESL displaces the rules of the otherwise applicable law insofar as the issue falls within the scope of CESL. The article tries to settle some demarcation issues in this regard. Further, it explores the possible effects of the principle of effectiveness or effet utile applied to CESL and possible implications of the Charter of Fundamental Rights. Finally, it explores whether a duty to allow CESL in domestic contracts may follow from national constitutional law.

Unconstitutional Constitutional Amendments in European Union Law: Considering the Existence of Substantive Constraints on Treaty Revision

The issue of unconstitutional constitutional amendments is extremely topical in the field of na-tional and comparative constitutional law. In a recent article (2013), Roznai signals that ‘the global trend is moving towards accepting the idea of limitations – explicit or implicit – on constitutional amendment power’. But what about the ‘supranational’ EU? Would there be room to argue that substantive limitations of amendability – explicit or implicit – also exist as regards the EU Treaties? Furthermore, if so, would the Court of Justice of the European Union (CJEU) have the competence to enforce such limits? These questions are the central focus of this article. We argue that accepting the idea of substantive requirements of Treaty revision may be one of the next important steps in the ongoing process of EU constitutionalisation. In the first part of the article, we explore what kind of arguments are being used to justify a doctrine of unconstitutional constitutional amendments in national systems. Next, we ascertain to what extent such arguments can be used to justify a doc-trine of unconstitutional constitutional amendment in EU law. In conclusion, we argue that it is quite conceivable that certain EU Treaty amendments would indeed be deemed a violation of the Treaties. Moreover, we contend that it is not unimaginable that the CJEU will assume the power to substantively review amendments to the EU Treaties, in cases where the Member States would choose to put forth suspect revisions to these documents.

Constitutional limits to European integration in the New Member States after the biggest enlargement

We live in the Europe Union (EU) in a context of relations between legal systems of different levels. Therefore the positions of EU New Member States Constitutional or Supreme Courts are analysed in the paper with the use of the multilevel constitutionalism theoretical approach and focus on changes introduced by the Lisbon Treaty, that opened a new constitutional horizon in the EU integration process. The European Court of Justice (ECJ) defined relations between EU law and national law thanks to the primacy principle of EU law. Nevertheless the EU law&amp;apos;s formal authority does not depend exclusively on ECJ position. It is conditioned largely by characteristics of each national legal system and national supreme or constitutional court case law. In fact, in most of EU Member States, certain constitutional reserves or constitutional limits to the primacy of EU law in the constitutional and supreme court case law with regard to (constitutional) fundamental rights and principles, can be found. The paper analyses the origin and development of those limits in the case law doctrine of Constitutional Courts in two old and three new EU Member States and concludes with the identification of the consequences and perspectives of EU integration with regard to the coherent protection of fundamental (constitutional) rights and principles across the EU. (original abstract)

Constitutional Evolution in the Crisis of the Early Twenty-First Century

Beginning with some general remarks on law and evolution, the paper queries the Westphalian narrative of modern state formation, centered on the evolutionary concept of normative constraints of morally neutralized processes of evolutionary adaptation. In light of long-time evolutionary change, a brief sketch follows concerning the democratic transformations of international and national constitutional law. But there can be no jurisgenetic progress without the threat of jurispathetic regression. The internal and external limits to democratic constitutionalism have come to the fore since the effective political establishment of a global neoliberal regime in the mid-1970ts. Europe is no exception but is still in a process of constitutional evolution that is open to alternative pathways enabled by the egalitarian normative constraints of global, regional and national constitutional and public law

The Court of Justice, the Bundesverfassungsgericht and Legal Reasoning during the Euro Crisis: The Rule of Law as a Fair-Weather Phenomenon

Since 2010 the EU has been in an 'emergency' situation due to the euro crisis, where the crisis management by the EU institutions, notably the European Central Bank, and national governments has been increasingly out of step with the EU Treaties and the natural meaning of the provisions defining the mandate of the central bank and the EU's economic policy powers. This article examines the judicial response to the euro crisis. The discussion will focus on the Pringle decision of the Court of Justice of the EU and the ESM judgment of the German Federal Constitutional Court (hereafter 'FCC'), in which both courts had to consider the compatibility of the European Stability Mechanism (hereafter 'ESM') with the EU Treaties and, in the case of the German Constitutional Court, also with the German Constitution known as the Grundgesetz. Further but less detailed consideration will be given to other decisions handed down by both courts in connection with the euro crisis since 2011. In relation to the Pringle decision, the author will summarize the key aspects of the decision and analyse the Court's legal argumentation to justify its conclusions. It is argued that the Court's general approach exhibits features which afford the Court great flexibility to take underhand account of extra-legal factors of judicial decision-making, notably political goals and institutional self-interest. In Pringle, however, the Court exploits the vagueness and norm uncertainty in its general approach to the maximum, to a point where legal reasoning no longer imposes any meaningful constraints on judicial decision-making. The author further shows that the Court of Justice's pragmatic and politically compliant response to the euro crisis is mirrored by the approach of the German Federal Constitutional Court (hereafter 'FCC') which, in its judgments on the legality of the Greek financial aid measures, the eurozone's temporary and permanent rescue funds, and the ECB's so-called Outright Monetary Transactions ('OMT') unlimited bonds buys programme effectively abandoned most central tenets of its long-established and well-considered case law on the principles governing the relationship between EU and national constitutional law and the principles of national sovereignty and the EU's supra-national authority confined by the EU Treaties.

Odpowiedzialność polityczna i odpowiedzialność karna polityków oraz kategoria więźnia politycznego w percepcji Zgromadzenia Parlamentarnego Rady Europy

The author analyses the position of the Parliamentary Assembly of the Council of Europe (PACE) toward the questions of the responsibility of politicians. In resolution 1950 (2013) Keeping political and criminal responsibility separate PACE considers that “democracy and rule of law require that politicians will be effectively protected from criminal prosecutions based on their decisions. Political decisions should be subject to political responsibility, the ultimate judges being the voters”. The distinctions between political decision-making and criminal acts must be based on national constitutional and criminal law, which in turn should respect the principles, in line with the conclusions of the European Commission for Democracy through Law (Venice Commission). In resolution 19000 (2012) The definition of political prisoners PACE reaffirms its support for the criteria of “political prisoner” elaborated in 2001 by a group of independent experts of the CoE Secretary General, mandated to assess cases of alleged political prisoners in Armenia and Azerbaijan in the context of accession of the two States to Organization. Also PACE resolutions represent only so-called “soft law” (not legally binding), they have an important moral and political meaning, and may open the way for the further conventional regulation.

European Union Constitutional Property Law

For European property lawyers, property is the law of things and this has been so for the past centuries. In this perspective, property law focuses on transactions of these things and is therefore transactional law. Increasingly there is a number of lawyers that considers property in a constitutional context. However, this is mostly done at a national level, or by comparing national constitutional property law, usually constitutional property provisions, to other countries. Constitutional property, I submit, is much more than just the national constitutional provision, and concerns the way in which property is to be understood, organised and applied in a legal order.In the EU legal order, which has a single or internal market, which is more than a mere sum of its components, there is a great need to rethink the position of property. The EU internal market is a social market economy to which fundamental principles of property law (freedom of ownership, free circulation of goods and freedom of contract) are inextricably linked. A change away from the market economy will bring great difficulties in the current composition of the EU legal order, as too many aspects are dealt with at the national level. The EU legal order relies heavily on the existence of these fundamental principles of property law in the systems of the Member States that ‘upload’ these to the EU level. EU economic constitutional law as well as EU social constitutional law can provide guidance for the development of EU (constitutional) property law. There is - borrowing from the South African experience - an algorithm for the development of property law in the EU, in which the primacy of regulation is with private parties, followed by the Member States who are all bound by the economic and social context provided for by EU law. That normative framework is not to be followed voluntarily, but comes with the method and thus with the force of supranational EU law, including direct effect, effet utile, and the principle of sincere cooperation between Member States. This is all balanced by the principles of subsidiarity and proportionality that keep the EU out of matters it should not concern itself with.

The Figure of Constitutional Law of the ‘Integrated State’: The Case of the Grand Duchy of Luxembourg

EU member state status - Member statehood - The idea of an “Integrated State” - Impact of EU membership on the concepts and substance of national constitutional law - Europeanization of member state's constitutional law - European constitutional law understood as Europeanized national constitutional law - European functions of constitutional organs - How to protect fundamental rights in a European area characterized by the overlaying of legal sources - The concept of “higher law” within the national legal order - A Union of Constitutionally Integrated States

The Evolution of Direct Effect in the EU: Stocktaking, Problems, Projections (Abstract only)

Focusing on the case law developed by the Court of Justice of the European Union since Van Gend en Loos, this article contends that three important shifts occurred concerning the effects of EU law in national courts since that case was decided. First, the existence of a particular category of effect) EU norms, which implies a process of selection among EU law provisions, is no longer as problematic as the method of comparison and combination of norms in judicial reasoning that has become a vehicle for the penetration of EU law in courts. Second, the possibility for individuals to claim (subjective) rights on the basis of the Treaty is overshadowed by questions concerning obligations imposed by the Treaty on individuals, and more generally, on the methods through which this horizontal effect occurs. Third, the duty for national courts to apply EU law provisions directly (direct enforcement) is now coupled with one prior question that these courts have to address, and which has become much more sensitive than before in view of the growing centrality of fundamental rights' protection in the EU system: the question of the applicability of EU and national (constitutional) law. Having examined these three shifts, the article concludes that it has become urgent to reconsider the effects of EU law in member states in order to avoid a decline of individual rights and freedoms resulting from EU law enforcement. Thus, Revisiting Van Gend en Loos leads to a reflection on the hypothesis, in which EU law should yield and national courts should be granted more discretion, when confronted with the resisting substance of national law (especially fundamental rights or freedoms protected by national constitutions).

The evolution of direct effect in the EU: Stocktaking, problems, projections

Focusing on the case law developed by the Court of Justice of the European Union since Van Gend en Loos, this article contends that three important shifts occurred concerning the effects of EU law in national courts since that case was decided. First, the existence of a particular category of effect) EU norms, which implies a process of selection among EU law provisions, is no longer as problematic as the method of comparison and combination of norms in judicial reasoning that has become a vehicle for the penetration of EU law in courts. Second, the possibility for individuals to claim (subjective) rights on the basis of the Treaty is overshadowed by questions concerning obligations imposed by the Treaty on individuals, and more generally, on the methods through which this horizontal effect occurs. Third, the duty for national courts to apply EU law provisions directly (direct enforcement) is now coupled with one prior question that these courts have to address, and which has become much more sensitive than before in view of the growing centrality of fundamental rights' protection in the EU system: the question of the applicability of EU and national (constitutional) law. Having examined these three shifts, the article concludes that it has become urgent to reconsider the effects of EU law in member states in order to avoid a decline of individual rights and freedoms resulting from EU law enforcement. Thus, Revisiting Van Gend en Loos leads to a reflection on the hypothesis, in which EU law should yield and national courts should be granted more discretion, when confronted with the resisting substance of national law (especially fundamental rights or freedoms protected by national constitutions).

Ritual Slaughter and Religious Freedom in a Multilevel Europe: The Wider Importance of the Dutch Case

Many jurisdictions in Europe face the question whether to allow ritual slaughter without stunning animals first. This question attracts not only the province of national constitutional law but importantly also EU fundamental rights and regulatory law in addition to the decisive importance of European Convention on Human Rights law. On the basis of a multilevel legal analysis the conclusion is reached that ritual slaughter may be restricted provided that a state follows the least restrictive alternative when limiting the right to religious freedom when holding that animals be stunned before slaughter. Departing from a recent attempt to abolish religious exemptions from mandatory stunning in the Netherlands, this article sets out the various considerations to determine whether a jurisdiction did indeed adopt the least restrictive alternative in limiting religious freedom to enhance animal welfare. In this regard critical attention is paid to the Strasbourg decision of Cha’are Shalom Ve Tsedek v France.

Collective Consumer Arbitration in Spain: A Civil Law Response to US-Style Class Arbitration

For years, the international legal community has debated the propriety of large-scale arbitration. Most of the analysis has focused on the pros and cons of class arbitration, based on the apparent assumption that any future forms of large-scale arbitration will follow the model initially developed by the United States in the 1980s. However, other types of group arbitration are also possible, as demonstrated by a unique form of collective consumer arbitration created by the Spanish legislature in 2008. The Spanish approach to large-scale arbitral proceedings is intriguing in a variety of ways, not the least of which is its ability to overcome some of the obstacles to US-style class arbitration that arise as a matter of European and national constitutional law. However, the Spanish model also reflects a number of areas of concern. This article therefore takes an in-depth look at the Spanish statute on collective consumer arbitration to determine whether the procedure offers a realistic and widely applicable civil law response to US-style class arbitration.

Gender Equality, Legal Mobilization, and Feminism in a Multilevel European System

This special issue probes the ways in which legal processes and entitlements are mobilized by individual and collective actors on behalf of gender equality, their causes, as well as their consequences for social, political, and policy change in Europe. While far from a unique phenomenon, such processes are distinct in Europe: they largely take place in the frame of multilevel European Union (EU) governance, defined by a multiplicity of legal and judicial mechanisms coexisting alongside supranational institutions and a sui generis system of law. From the 1970s onwards, EU law has expanded the arsenal of rights to gender equality that can be claimed before national courts and the Court of Justice of the EU (CJEU). Over the past ten years, the adoption of anti-discrimination legislation by the EU has further strengthened the relevant body of legal norms. It has also expanded the (quasi-) judicial and non-judicial fora where gender equality claims can be advanced in the multilevel European system. In this changing context, individuals and other actors have increasingly challenged state laws and policies in court for compatibility with gender equality norms enshrined in national constitutional and EU law.