scholarly journals The Changing Constitutional Role of the European Court of Justice

2006 ◽  
Vol 34 (2) ◽  
pp. 223-245 ◽  
Author(s):  
Julio Baquero Cruz
Keyword(s):  
European Convention ◽  
The Political ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Political Actors ◽  
Court Of Justice ◽  
European Court ◽  
German Constitutional Court ◽  
Widespread View

The process through which the founding Treaties of the European Communities came to function and be regarded as a constitution and the role of the Court of Justice in that process are well known. According to a widespread view, the Court would have been the main or even the only actor in the constitutionalization of the Treaties, transforming them into constitutional entities by virtue of some judgments of the 60s and 70s. For many, in those judgments the Court would have been excessively prointegrationist, too audacious, almost “running wild”. At some point, a number of constitutional courts, in particular the German Constitutional Court with its Maastricht decision of 1993, would have voiced their concerns, tracing potential limits to judicially driven integration. As a result, the Court of the 90s would have become wiser, more self-restrained, at times even minimalistic – more like a court and less like an omnipotent legislator or “pouvoir constituent.” With the calling of the European Convention and the drafting of the Treaty establishing a Constitution for Europe, the Court would have been more than ever on a second plane, as if constitutional matters had finally returned to the political actors to which they belong.

The German Constitutional Court and Preliminary References—Still a Match not Made in Heaven?

2015 ◽  
Vol 16 (6) ◽  
pp. 1491-1508
Author(s):  
Eva Julia Lohse
Keyword(s):  
European Union ◽  
Constitutional Court ◽  
Eu Law ◽  
The European Union ◽  
Constitutional Courts ◽  
Court Of Justice ◽  
European Court ◽  
German Constitutional Court ◽  
In The Beginning ◽  
The Eu

So far, the German Constitutional Court (Bundesverfassungsgericht, henceforth:BVerfG) has only made a single preliminary reference to the (now) Court of Justice of the European Union (CJEU), despite frequent rulings on matters connected with European Union (EU) Law. Its apparent reluctance seemed odd considering the atmosphere of dialogue and cooperation which prevails between the non-constitutional courts and the EU courts. This situation might, however, have changed with the preliminary reference from January 2014, proving predictions on the perceived “most powerful constitutional court” and its relationship to the EU partly wrong. The legal effects of its preliminary reference on the interpretation of Articles 119, 123, 127 ff. of the Treaty on the Functioning of the European Union (TFEU) and the validity of Outright Monetary Transactions (OMT) by the European Central Bank (ECB) under EU Law are as yet unclear; although the Opinion of the Advocate General Cruz Villalón was delivered in the beginning of 2015, which did not confirm the doubts expressed by theBVerfGabout the conformity of the OMT programme with EU law. Nonetheless, the interpretative scheme and the normative questions as to the reluctance of theBVerfGremain the same after this single referral and offer explanations as to why theBVerfGhad for nearly sixty years not referred a question to the former European Court of Justice (ECJ).

An Emerging Right to a “Gay” Family Life? The CaseOliari v. Italyin a Comparative Perspective

2016 ◽  
Vol 17 (3) ◽  
pp. 451-485 ◽  
Author(s):  
Sabrina Ragone ◽  
Valentina Volpe
Keyword(s):  
Human Rights ◽  
Family Life ◽  
European Convention ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Same Sex Couples ◽  
European Court ◽  
National Perspective ◽  
The Right

This Article analyses, through the lens of comparative law, theOliari and others v. Italyjudgment, which was issued by the European Court of Human Rights (ECtHR) in July 2015. TheOliaricase is important for being the first judgment in which the ECtHR established the granting of legal “recognition and protection” to same-sex couples as a positive obligation for the Member States of the Council of Europe on the basis of Article 8 of the European Convention on Human Rights. In order to understand the role of judicial bodies in the progressive protection of homosexual rights, this Article combines an analysis of European case law with the national perspective. As it concerns the supranational facet, the authors illustrateOliari's reasoning and situate the case in the jurisprudence of the ECtHR. Elements of both continuity and innovation emerge from the analysis, as well as a relevant dimension of judicial dialogue supporting the incremental recognition of gay rights in Europe. As it concerns the national facet, this specific case was initially dealt with at the domestic level and was the object of judgment 138/2010 by the Italian Constitutional Court. The judgment is critically put into perspective through the examination of the jurisprudence of other European Constitutional Courts (France, Portugal and Spain) that were called on to decide similar cases in the same period. Therefore, the Article offers a comparative analysis of theOliarijudgment clarifying its relevance and speculating on the potential value of this case for the future recognition of the right to a “gay” family life in Europe.

Multilevel cooperation of the European Constitutional Courts: Der Europäische Verfassungsgerichtsverbund

2010 ◽  
Vol 6 (2) ◽  
pp. 175-198 ◽  
Author(s):  
Andreas Voβkuhle
Keyword(s):  
Human Rights ◽  
Federal Court ◽  
European Convention ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Basic Law ◽  
European Court ◽  
Broad Concept ◽  
Federal Constitutional ◽  
German Constitutional Court

Broad concept of constitutional jurisdiction – Triangle between Karlsruhe, Strasbourg and Luxembourg – European vocation of the German Constitutional Court and Basic Law – European Convention on Human Rights – Karlsruhe decisions can be reviewed in Strasbourg – Human rights-related constitutional court – European Court of Justice developed into constitutional court of the Union – Verbund between three courts – No simplistic hierarchy – Verbund techniques – Dialogue in Human Rights; Interplay in Integration – Federal Constitutional Court and European Court of Human Rights functionally comparable – Both Courts seek substantive coherence as Verbund technique – Federal Constitutional Court commits all German authorities to the Convention – Federal Constitutional Court and ECJ – Principle of openness to European Law – Sharing and assigning responsibilities in complex system – Solange, ultra vires and identity review – Responsibility for integration, due by Court and other German bodies – Federal Court contributes to common European Constitutional order – Europe-wide discursive struggle and ‘Lernverbund’

The Effects of the Judgments of the European Court of Human Rights According to the German Constitutional Court

2010 ◽  
Vol 11 (5) ◽  
pp. 513-526 ◽  
Author(s):  
Christian Tomuschat
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Constitutional Court ◽  
Federal Republic Of Germany ◽  
The Rule Of Law ◽  
Basic Law ◽  
European Court ◽  
German Constitutional Court ◽  
The Individual ◽  
Willingness To Cooperate

The Federal Republic of Germany counts among the earliest States parties to the European Convention on Human Rights (ECHR). It ratified the ECHR on 5 December 1952, three years ahead of Italy, and hence found itself among the original members of the treaty system when the ECHR entered into force on 3 September 1953. For the new democratic Government, it was a decision of principle to affirm its willingness to cooperate peacefully within the group of European States, submitting to an international review mechanism with regard to all of its activities. Therefore, very shortly afterwards, it accepted also the individual application under Article 25 ECHR, which at that time was not yet compulsory for all States parties. For many years under the Nazi dictatorship, Germany had brought death and destruction to its neighbours. Now, organized under a democratic and liberal constitution, the Basic Law (BL), it wanted to manifest its newfound identity as a civilized State abiding by the rule of law.

Effectiveness of EU law and protection of fundamental rights

2018 ◽  
Vol 9 (1) ◽  
pp. 24-30 ◽  
Author(s):  
Rosaria Sicurella
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
European Convention ◽  
Constitutional Court ◽  
Eu Law ◽  
Critical View ◽  
Court Of Justice ◽  
European Court ◽  
Significant Step ◽  
Principle Of Legality

The decision of the Court of Justice in the M.A.S. and M.B. case marks a very significant step forward in the Taricco saga. It clearly shows the intention of the European Court to tone down the confrontation with the Italian Constitutional Court, while at the same time maintaining the most relevant achievement of the decision in the Taricco case, that is to say the fact to consider Article 325 TFEU as having direct effect. The author expresses quite a critical view on the solution adopted by the ECJ which finally results in a sort of “flexibilization” of the principle of legality at EU level in order to meet some of the claims by the Italian Constitutional Court. In the author's opinion, such a solution risks to undermine the overall coherence and soundness of the protection of fundamental rights at EU level, although it can appear at a first glance to boost the legality principle. A better solution could have been to develop a different reasoning relying on rights in the Charter other that the nullum crimen principle, and avoid to touch at the well-established scope of this principle as established in Article 49 Charter and also in Article 7 of the European Convention on Human Rights.

scholarly journals The Randstad Case: Melki Reloaded? The Fundamental Right to Effective Judicial Protection as Battleground for Judicial Supremacy in European Law

2021 ◽  
Vol 4 (1) ◽  
pp. 53-68
Author(s):  
Orlando Scarcello
Keyword(s):  
European Court Of Justice ◽  
Constitutional Court ◽  
European Law ◽  
Eu Law ◽  
Court Of Justice ◽  
European Court ◽  
Judicial Supremacy ◽  
Judicial Protection ◽  
The Eu

This paper will examine the recent preliminary reference to the European Court of Justice issued by the Italian Court of Cassation in the Randstad case, aimed at rearranging the internal constitutional separation between ordinary and administrative courts (article 111(8) of the Constitution). I will first provide some context on both the relations between Italian and EU courts (2.1) and on the confrontation between the Court of Cassation and the Constitutional Court in interpreting article 111 (2.2). I will then specifically examine the referring order to the Court of Justice of the EU (3), focusing on the role of general clauses of EU law as articles 4(3) and 19 TEU and 47 of the Charter in it. Finally, I will consider the instrumental use of EU law made by the Cassation to overcome an unpleasant constitutional arrangement. This aligns Randstad with previous cases such as Melki or A v. B and may foster constitutional conflict in the future. 

scholarly journals UKRAINIAN COURTS AND THE PROTECTION OF HUMAN RIGHTS

2016 ◽  
pp. 68-75
Author(s):  
Victor Muraviov
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Constitutional Court ◽  
European Court ◽  
The Supreme Court ◽  
Protection Of Human Rights ◽  
Efficient Protection ◽  
Independent Functioning ◽  
Positive Effect

The article is focused on the interaction between the Ukrainian courts of general jurisdiction and the Constitutional Court of Ukraine in the area of the protection of human rights. There is emphasized that their independent functioning does not provide for the efficient protection of individual rights and freedoms and significantly increases the number of the judicial recourses of the Ukrainian citizens to the European Court of Human Rights. Particular attention is paid to the role of the Constitutional Court of Ukraine in the protection of human rights, which combines the functions of the constitutional control and constitutional supervision. Its activities are focused on the official interpretation on the Constitution of Ukraine. Attention is paid to the list those who may bring the actions before the Constitutional Court, which includes apart from the state bodies the natural and legal persons. The is mentioning of the issues on initiating of proceedings before the Court. Also broadly is analyzed Constitutional Court’ activities concerning the interpretation of the Constitution in the light of the European Convention on Human Rights and other international agreements dealing with the protection of human rights. The article stresses on the contribution of other Ukrainian courts in the affirmation of the constitutional concept of the protection of human rights and freedoms in Ukraine. The majority of resolutions of such highest judicial body in the system of courts of general jurisdiction as the Supreme Court of Ukraine concern the judgments of the European Court of Human Rights. As it is emphasized in the article the independent functioning on the Constitutional Court and the courts of general jurisdiction does not provide for the cooperation between both branches of courts. Courts of general jurisdiction feel free as to the appeal to the Constitutional Court. Even when such appeals are directed to Constitutional Court the decisions of the letter are not binding to the courts of general jurisdiction. Special attention is paid to the introduction of the institute of constitutional complaint and its positive effect on the judicial mechanism of the protection of human rights in Ukraine.

Das „Kooperationsverhältnis“ zwischen Bundesverfassungsgericht und Europäischem Gerichtshof nach dem PSPP-Urteil

Der Staat ◽  
2021 ◽  
Vol 60 (1) ◽  
pp. 99-131
Author(s):  
Andrej Lang
Keyword(s):  
Network Structure ◽  
Third Parties ◽  
European Court Of Justice ◽  
Constitutional Court ◽  
Court Of Justice ◽  
European Court ◽  
German Constitutional Court ◽  
Cooperative Relationship ◽  
Grand Chamber

Der Beitrag diskutiert die Konsequenzen des PSPP-Urteils für das Kooperationsverhältnis zwischen dem BVerfG und dem EuGH. Dabei wird für eine nüchternere Perspektive statt martialischer Zuspitzungen und gegen einseitige Schuldzuweisungen plädiert. Vielmehr sind wechselseitige Kooperation und Konfrontation in der netzwerkartigen Struktur der Gerichtsbeziehung angelegt. Deshalb markiert das Urteil zwar eine Krise, aber noch nicht das Ende des „Kooperationsverhältnisses“. Die Vorstellung, der Gerichtskonflikt lasse sich nur durch Dritte lösen, sei es in Form eines Vertragsverletzungsverfahrens, sei es durch eine spezielle Gerichtskammer für Kompetenzkonflikte, unterschätzt die fein ausbalancierte Funktionsweise des Gerichtsdialogs und birgt ein bedenkliches Eskalationspotenzial. Der Impuls, die Wiederherstellung der europäischen Rechtseinheit trotz grundlegendem Dissens rechtlich zu erzwingen, kann den Gerichtskonflikt auch eskalieren und eine Lösung zusätzlich erschweren. The article analyzes the consequences of the PSPP ruling for the cooperative relationship between the German Constitutional Court and the European Court of Justice. It argues for a sober perspective instead of martial exaggerations and against apportioning one-sided blame. Rather, reciprocal cooperation and confrontation are inherent in the network structure of the judicial relationship. Although the ruling creates a crisis, it does not yet mark the end of the “cooperative relationship”. The idea that the judicial conflict can only be resolved by third parties, whether in the form of infringement proceedings or by a Mixed Grand Chamber for the delimitation of EU competences, underestimates the delicately balanced functioning of the judicial dialogue and harbors a worrying potential for escalation. The impulse to legally enforce the restoration of European legal unity despite fundamental dissent may end up escalating the judicial conflict and making a solution even more difficult.

scholarly journals Separation versus Fusion – or: How to Accommodate National Autonomy and the Charter? Diverging Visions of the German Constitutional Court and the European Court of Justice

2013 ◽  
Vol 9 (3) ◽  
pp. 391-419 ◽  
Author(s):  
Daniel Thym
Keyword(s):  
European Court Of Justice ◽  
Constitutional Court ◽  
Counter Terrorism ◽  
Court Of Justice ◽  
European Court ◽  
Separation Thesis ◽  
National Autonomy ◽  
Federal Constitutional ◽  
German Constitutional Court ◽  
German Federal Constitutional

German Federal Constitutional Court's dialogue with the European Court of Justice – Background, trigger, contents and context of the FCC's reaction to the Åkerberg Fransson judgment – The FCC's Counter-Terrorism Database judgment – Constitutional control standards – theoretical repercussions of the judicial dispute – Underlying conceptual differences – The ‘fusion thesis’ versus the ‘separation thesis’ – Pragmatic approximation of divergent positions

Die Staatstheorie des Bundesverfassungsgerichts und Europa

2020 ◽  
Author(s):  
Robert Chr. van Ooyen
Keyword(s):  
Human Rights ◽  
State Theory ◽  
European Court Of Justice ◽  
Constitutional Court ◽  
Court Of Justice ◽  
European Court ◽  
German Constitutional Court ◽  
Eighth Edition ◽  
The Right ◽  
The Guardian

With the Treaty of Lisbon, the Second Senate of the German Constitutional Court intensified its judgements with regard to Europe and in its recent rulings on rescuing the euro and the electoral threshold in EU elections emphasised its belief in a form of democracy based on the idea that the nation and the state supersede everything else, a standpoint which it has adopted since the Treaty of Maastricht. With the right to be forgotten I and II, the First Senate has now also reacted to the European Court of Justice by suddenly committing itself to being the ‘guardian’ of European fundamental human rights and even threatening to revert to its old ‘European-friendly’ Solange II rulings. This book’s principal argument is that all this reveals the Europhobic nature of the German Constitutional Court’s state theory, which results from outdated traditions in the German doctrine of constitutional law and from a lack of democratic theory. The recent rulings on the EU’s Charter of Fundamental Human Rights from November 2019 are just some of new additions to the eighth edition of this book.

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