Constitutional Identity as a Shield and as a Sword: The European Legal Order within the Framework of National Constitutional Settlement

2011 ◽  
Vol 13 ◽  
pp. 195-218 ◽  
Author(s):  
Theodore Konstadinides
Keyword(s):  
Judicial Review ◽  
Case Law ◽  
Eu Law ◽  
The European Union ◽  
Constitutional Development ◽  
Member States ◽  
National Implementation ◽  
In Trans ◽  
The Relationship ◽  
Constitutional Identity

Abstract The pitfalls of the relationship between European and national judges constitute a well-travelled ground in literature, especially with regard to ‘sagas’ over the reconciliation of national sovereignty with EU law primacy. Hence, the contribution that this article is attempting to make is to explore the judicial understanding and potential of the concept of constitutional identity in the light of the newly-introduced Article 4(2) TEU by the Treaty of Lisbon, which makes it explicit that national identity encompasses constitutional specificity. A number of questions are raised and discussed. For instance: How has the Court of Justice of the European Union (CJEU) been adjudicating on issues pertaining to the constitutional identity of the Member States pre- and post-Lisbon? How far can Member States stretch the concept to avoid the tidal effect of EU law upon their legal systems? For the sake of clarity, two notions of constitutional identity are identified and presented in this article: One related to the CJEU’s case law, where ‘constitutional identity’ has been invoked by defending Member States as a qualified derogation from their EU law obligations (a ‘shield’) and another, inherent in the German Constitutional Court’s (BVerfG) use of ‘constitutional identity’ as a break to an unprecedented transfer of competences to the EU and a tool of judicial review of national implementation measures of secondary legislation (a sword). The arguments advanced hereafter suggest that the implications of identity retention as a ‘shield’ may not be far-reaching since the CJEU has, through a pragmatic use of the loyalty and proportionality principles, succeeded in reducing its effect to the bare minimum. On the other hand, as a judicial review mechanism, the German paradigm demonstrates that, as a ‘sword’, constitutional identity retention comprises, largely, a theoretical possibility. These assumptions aside, it is concluded that constitutional identity retention may provide both national judiciaries and legislatures with new opportunities to participate in trans-national constitutional development through monitoring and assessing the compatibility of the exercise of EU competence with the requirements of national constitutions.

Constitutional Identity as a Shield and as a Sword: The European Legal Order within the Framework of National Constitutional Settlement

2011 ◽  
Vol 13 ◽  
pp. 195-218 ◽  
Author(s):  
Theodore Konstadinides
Keyword(s):  
Judicial Review ◽  
Case Law ◽  
Eu Law ◽  
The European Union ◽  
Constitutional Development ◽  
Member States ◽  
National Implementation ◽  
In Trans ◽  
The Relationship ◽  
Constitutional Identity

AbstractThe pitfalls of the relationship between European and national judges constitute a well-travelled ground in literature, especially with regard to ‘sagas’ over the reconciliation of national sovereignty with EU law primacy. Hence, the contribution that this article is attempting to make is to explore the judicial understanding and potential of the concept of constitutional identity in the light of the newly-introduced Article 4(2) TEU by the Treaty of Lisbon, which makes it explicit that national identity encompasses constitutional specificity. A number of questions are raised and discussed. For instance: How has the Court of Justice of the European Union (CJEU) been adjudicating on issues pertaining to the constitutional identity of the Member States pre- and post-Lisbon? How far can Member States stretch the concept to avoid the tidal effect of EU law upon their legal systems? For the sake of clarity, two notions of constitutional identity are identified and presented in this article: One related to the CJEU’s case law, where ‘constitutional identity’ has been invoked by defending Member States as a qualified derogation from their EU law obligations (a ‘shield’) and another, inherent in the German Constitutional Court’s (BVerfG) use of ‘constitutional identity’ as a break to an unprecedented transfer of competences to the EU and a tool of judicial review of national implementation measures of secondary legislation (a sword). The arguments advanced hereafter suggest that the implications of identity retention as a ‘shield’ may not be far-reaching since the CJEU has, through a pragmatic use of the loyalty and proportionality principles, succeeded in reducing its effect to the bare minimum. On the other hand, as a judicial review mechanism, the German paradigm demonstrates that, as a ‘sword’, constitutional identity retention comprises, largely, a theoretical possibility. These assumptions aside, it is concluded that constitutional identity retention may provide both national judiciaries and legislatures with new opportunities to participate in trans-national constitutional development through monitoring and assessing the compatibility of the exercise of EU competence with the requirements of national constitutions.

The Relationship between the EU and Member States in Constitutional Case Law: A Comparison between Western and Eastern Europe

2008 ◽  
Vol 10 ◽  
pp. 189-198
Author(s):  
Constance Grewe
Keyword(s):  
Turning Point ◽  
Case Law ◽  
Eastern European ◽  
European Law ◽  
Eu Law ◽  
Constitutional Courts ◽  
Member States ◽  
The Relationship ◽  
Constitutional Identity ◽  
The Eu

It is indeed a crucial moment now that Central and Eastern European (CEE) countries have begun to join the EU. The Maastricht Treaty was itself, in several respects, a turning point in European construction; Member States then became aware of the increasing influence of EU law and started to defend their autonomy against the ‘attacks’ stemming from it. With the accession of the CEE states, the ‘Solange story: a story about national constitutional courts resisting a straightforward surrender of national legal sovereignties, and insisting on their own role as guardians of any further transfer of powers from the national to the European level’, can now enter into ‘its chapter 3’. National or constitutional identity is the main arm of resistance, and these national reactions require a rethinking of the relationship between national and European law.

scholarly journals COLLECTIVE LABOUR RIGHTS AS THE PRINCIPLES OF THE EUROPEAN UNION LABOUR LAW

2019 ◽  
pp. 43-46
Author(s):  
O. M. Rym
Keyword(s):  
European Union ◽  
Collective Bargaining ◽  
Case Law ◽  
Eu Law ◽  
The European Union ◽  
Labour Law ◽  
Member States ◽  
Labour Rights ◽  
Social Partners ◽  
The Right

The article deals with certain aspects of collective labour rights in the European Union. Prerequisites and procedure of this rights guaranting as general principles of EU law are analyzed and their content is characterized. It is emphasized that such legal establishing took place somewhat haphazardly, both at the level of the acts of primary and secondary law of the European Union and in the case law. As a result, there is no single position on the spectrum of collective labour rights as principles of EU labor law. The author focuses on significant changes in the understanding of the necessity of cooperation of social partners and the extension of their interaction at the supranational level. It is under the responsibility of the European Commission to promote cooperation between Member States and to facilitate coordination of their activities in the field of the right of association and collective bargaining between employers and employees. The article clarifies the content of collective labour rights as general principles of EU law on the basis of EU legal acts, the case law of the Court of Justice of the European Union, as well as the scientific works of domestic and foreign scholars. It is noted that the system of collective labour rights, as general principles of EU labour law, consists of the right of collective bargaining and collective action, the right of employees to information and consultation within the enterprise, as well as the freedom of assembly and association. It is concluded that the necessity of cooperation between the social partners is recognized as one of the foundations of EU labour law. Herewith appropriate interaction is ensured through the normative-legal consolidation of collective labour rights and procedures for their implementation. After all, European Union legal acts allow employees and employers’ representatives to play an active role in regulating labour legal relations. For example, Member States may instruct employers and employees, upon their joint request, to implement Council directives or decisions. In addition, many directives contain warnings about the possibility of derogating from their provisions through the adoption of a collective agreement.

Mixed Agreements: The EU Law Fundamentals

2018 ◽  
Author(s):  
Joni Heliskoski
Keyword(s):  
European Union ◽  
Case Law ◽  
International Agreements ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Court Of Justice ◽  
Basic Characteristics ◽  
Mixed Agreements ◽  
The Eu

Whatever terminology one might wish to employ to describe the form of integration constituted by the European Union and its Member States, one fundamental attribute of that arrangement has always been the division, as between the Union and its Member States, of competence to conclude international agreements with other subjects of international law. Today, the fact that treaty-making competence—as an external facet of the more general division of legal authority—is divided and, to some extent, shared between the Union and its Member States is reflected by some of the opening provisions of the Treaty on European Union and the Treaty on the Functioning of the European Union. Notwithstanding the changes to the scope and nature of the powers conferred upon the Union, resulting from both changes to primary law and the evolution of the case law of the Court of Justice of the European Union (CJEU), the basic characteristics of the conferment as an attribution of a limited kind has always been the same; there has always existed a polity endowed with a treaty-making authority divided between and, indeed, shared by, the Union and its Member States. In the early 1960s mixed agreements—that is, agreements to which the European Union

scholarly journals National and Constitutional Identity in the Case Law of the Court of Justice of the European Union

2017 ◽  
Vol 1 (2) ◽  
pp. 6-27
Author(s):  
Ondrej Hamuľák ◽  
David Kopal ◽  
Tanel Kerikmäe
Keyword(s):  
European Union ◽  
National Identity ◽  
Main Part ◽  
Case Law ◽  
Eu Law ◽  
The European Union ◽  
Court Of Justice ◽  
Introductory Part ◽  
Before And After ◽  
Constitutional Identity

The aim of this paper is to determine the position of the CJEU towards the national identity with regard to its case law and whether the Court gives preference to the national identity or to the primacy of EU law during the balancing between the constitutional principles and the interests of member states with EU law. The introductory part of the paper addresses the insertion and the development of the national identity clause in the primary law. Its main part consists of analysis of the case law of the CJEU, as well as of the opinions of Advocates General, in the period before and after the adoption of the Treaty of Lisbon.

scholarly journals Constitutional Identity and Ultra Vires Review in Germany

2021 ◽  
Vol 2 (1) ◽  
pp. 185-205
Author(s):  
Sven Simon
Keyword(s):  
Detailed Analysis ◽  
Case Law ◽  
Constitutional Court ◽  
Eu Law ◽  
Federal Constitutional ◽  
The Relationship ◽  
German Federal Constitutional Court ◽  
Constitutional Identity ◽  
German Federal Constitutional ◽  
Insight Into

This article aims to provide insight into the relationship between constitutional identity and ultra vires review in Germany. First, a brief introduction is provided on the issue of the relationship between EU law and national law, then the diverging grounds for validity are presented concerning the interpretation of the CJEU and of the German Federal Constitutional Court. After the detailed analysis of the German case law, limits of a national reservation are scrutinised. In the end, a conclusion is drawn up.

Doubtful it Stood…: Competence and Power in European Monetary and Constitutional Law in the Aftermath of the CJEU's OMT Judgment

2015 ◽  
Vol 16 (4) ◽  
pp. 971-1002 ◽  
Author(s):  
Heiko Sauer
Keyword(s):  
Preliminary Ruling ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Assistance Programs ◽  
German Constitution ◽  
Federal Constitutional ◽  
Multi Level ◽  
Constitutional Identity ◽  
The Eu

Quite unsurprisingly, the CJEU has held that the ECB's OMT program does not violate EU law. In accordance with this holding, I argue in the first part of this note that the OMT program does not transgress the ECB's mandate under the Treaty, which is often interpreted too narrowly, in particular by German legal scholars. Furthermore, I argue that a violation of the prohibition of monetary financing of the member States as enshrined in article 123, para 1 TFEU cannot be inferred from the ECB's announcement of a program, which has never been implemented. In any case, there is clearly no manifest and grave transgression of EU competences which, according to the German Federal Constitutional Court's (FCC)Honeywelldoctrine, is required for an ultra vires finding. The second part of this note shows that the FCC's doctrine regarding transgressions of competences by EU organs (ultra vires review) is not only unconvincing as a matter of principle but also and worse (as on premises we can always reasonably disagree) not consistently applied to the OMT program. The note also objects to the Court's somewhat trendy blending of ultra vires and constitutional identity review of EU law through which it increasingly conceals its approach of applying the so-called constitutional constraints of European integration to the EU organs' conduct. The forthcoming FCC judgment is therefore less important as regards the quite foreseeable finding on the lawfulness of the OMT program but – hopefully – of vital importance as it might embody a more coherent relaunch of the FCC's standards of judicial review with regard to EU law.The judgment of the Court of Justice of the European Union (CJEU) on the European Central Bank's (ECB) 2012 announcement of future Outright Monetary Transactions (OMT) comes as no surprise. It had not been expected that the CJEU would interpret the European Economic and Monetary Union's (EMU) Treaty provisions the way the FCC had “suggested.” Neither had it seemed conceivable that the CJEU would reject the FCC's request for a preliminary ruling holding that a legally non-binding assessment of the EU action's lawfulness could not be requested under Article 267 TFEU. The judgment had nevertheless been awaited for with tension for two reasons: First, in the vigorous and in part very critical debate about the ECB's competences under the TFEU and its alleged ultra vires action a judgment by the CJEU was necessary to settle the fundamental European law issues at stake. This is all the more important with regard to the ECB's current Expanded Asset Purchase Program (EAPP) as well as its interconnection with the European Stability Mechanism's (ESM) financial assistance programs. The CJEU's holdings on the ECB's competences within the EMU framework are discussed in the first part of this note regarding the distinction between monetary and economic policy (infra section A.I.) and the interpretation of Article 123, paragraph 1 TFEU which prohibits monetary financing of the member States by the ECB (infra section A.II.). Second, it was clear that the judgment would shape the new stage in the changing and sometimes explosive on-off relationship between the CJEU and the FCC, the stage entered into by Karlsruhe's first ever request for a preliminary ruling. The FCC had fortified its ultra vires doctrine and clearly indicated its readiness not to follow the CJEU but to insist on the notorious “last word” of the German Constitution instead. Thus, the second part of this note discusses the constitutional legal premises of the FCC's approach and the procedural and substantial manner in which the FCC tries to scrutinize the ECB's OMT program (infra sections B.I. and B.II.). In this context, possible scenarios for the upcoming judgment (infra section C.I.) and consequences for European multi-level constitutionalism (infra section C.II.) will be discussed.

scholarly journals The Relationship Between the Charter and General Principles: Looking Back and Looking Forward

2020 ◽  
pp. 1-25
Author(s):  
Emily HANCOX
Keyword(s):  
European Union ◽  
Case Law ◽  
Legal Framework ◽  
Fundamental Rights ◽  
Eu Law ◽  
The European Union ◽  
Rights Protection ◽  
Transformative Potential ◽  
The Relationship ◽  
The Eu

Abstract Article 6 Treaty on European Union sets out two sources of fundamental rights in the EU—the Charter and the general principles of EU law—without specifying a hierarchy between them. Even though the Charter became binding over a decade ago, the Court of Justice of the European Union (‘CJEU’) is yet to clarify unequivocally how these two sources interact. In this article I argue based upon the relevant legal framework that the Charter ought to replace the general principles it enshrines. This leaves a role for general principles in the incorporation of new and additional rights into the EU legal framework. Such an approach is necessary to ensure that the Charter achieves its aims in enhancing the visibility of the rights protected by EU law, while also providing the impetus for more coherent rights protection within the EU. What an extensive survey of CJEU case law in the field of non-discrimination shows, however, is that the CJEU has struggled to let its general principles case law go, potentially hampering the transformative potential of the Charter.

scholarly journals Działalność gospodarcza poddana reglamentacji w świetle orzecznictwa Trybunału Sprawiedliwości na przykładzie prowadzenia gier hazardowych

2018 ◽  
Vol 114 ◽  
pp. 413-429
Author(s):  
Stanisław Biernat
Keyword(s):  
European Union ◽  
Economic Activity ◽  
Case Law ◽  
Internal Market ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Indirect Assessment ◽  
Court Of Justice

ECONOMIC ACTIVITY SUBJECTED TO REGLAMENTATION IN THE LIGHT OF THE CASE LAW OF THE COURT OF JUSTICE OF THE EUROPEAN UNION EXEMPLIFIED BY CONDUCTING GAMBLINGIn EU law, conducting gambling is classified as the exercise of the freedoms of the internal market, regulated in the Treaty on the Functioning of the European Union. Conducting gambling is not currently regulated or harmonized at EU level, and therefore the regulation of gambling is the competence of Member States. EU law defining acceptable ways of regulating gambling in the Member States is now a judge-made law and the result of the creative jurisprudence of the Court of Justice of the European Union. So far, the Court has issued dozens of judgments in which it interpreted Treaty provisions proclaiming the freedoms of the internal market in the context of conducting gambling. These judgments provide a direct or indirect assessment of whether national law complies with EU law.

scholarly journals The relationship between the law of the European Union and the law of its Member States - a norm - based conceptual framework

2019 ◽  
Vol 15 (1) ◽  
pp. 73-103
Author(s):  
Dana Burchardt
Keyword(s):  
Level Structure ◽  
Eu Law ◽  
The European Union ◽  
Legal Norms ◽  
Structural Principles ◽  
Multi Level ◽  
The Law ◽  
The Relationship ◽  
Domestic Law ◽  
Constitutional Identity

Interrelations between EU law and domestic law – Concept of a norm-based compound structure – Intertwinement of legal norms and legal orders – Combined normativity – Multi-level structure within the legal norms – Primacy, supremacy and ranking of EU law and domestic law – Structural principles guiding the relationship between EU law and domestic law – Principles of uniformity and constitutional identity

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