Mixed Judicial Selection and Constitutional Review: Evidence from Spain

2021 ◽  
pp. 1-27
Author(s):  
Nuno Garoupa ◽  
Marian Gili ◽  
Fernando Gómez Pomar
Keyword(s):  
Constitutional Court ◽  
Empirical Testing ◽  
Judicial Selection ◽  
Constitutional Review

Spanish Constitutional Court – Judicial behaviour – Mixed judicial selection – Empirical testing – Decisions of the Spanish Constitutional Court, 1980-2018 – Judicial background – Government – Senate – Congress – Spanish Judicial Council – Invalidation of statutes –Dissent opinions – Shaping politicisation.

The Kelsenian Model of Constitutional Review in Times of European Integration – Reconsidering the Basic Features

2019 ◽  
Vol 19 (1) ◽  
pp. 7-37
Author(s):  
Aleksandra Kustra-Rogatka
Keyword(s):  
European Integration ◽  
Legal System ◽  
Constitutional Court ◽  
Centralized Control ◽  
Constitutional Treaty ◽  
Constitutional Courts ◽  
Constitutional Review ◽  
Legal Norms ◽  
Basic Features ◽  
The Eu

Summary The paper deals with the changes in the centralized (Kelsenian) model of constitutional review resulting from a state’s membership of the EU, which unequivocally demonstrates the decomposition of the classic paradigm of constitutional judiciary. The main point raised in the paper is that European integration has fundamentally influenced on the four above-mentioned basic elements of the Kelsenian model of constitutional review of legislation, which are the following: the assumption of the hierarchical construction of a legal system; the assumption of the supreme legal force of the constitution as the primary normative act of a given system; a centralised model of reviewing hierarchical conformity of legal norms; coherence of the system guaranteed by a constitutional court’s power to declare defectiveness of a norm and the latter’s derogation. All its fundamental elements have evolved, i.e. the hierarchy of the legal system, the overriding power of the constitution, centralized control of constitutionality, and the erga omnes effect of the ruling on the hierarchical non-conformity of the norms. It should be noted that over the last decade the dynamics of these changes have definitely gained momentum. This has been influenced by several factors, including the “great accession” of 2004, the pursuit of formal constitutionalization of the EU through the Constitutional Treaty, the compromise solutions adopted in the Treaty of Lisbon, the entry into force of the Charter, and the prospect of EU accession to the ECHR. The CJEU has used these factors to deepen the tendencies towards decentralization of constitutional control, by atomising national judicial systems and relativizing the effects of constitutional court rulings within national legal systems. The end result is the observed phenomenon, if not of marginalisation, then at least of a systemic shift in the position of constitutional courts, which have lost their uniqueness and have become “only ones of many” national courts.

Amendment of the Contravention Code or Defiance of the Constitution by the Exceptional Situations Commission?

2021 ◽  
pp. 56-65
Author(s):  
Iulian Rusanovschi ◽  
Keyword(s):  
Public Health ◽  
The State ◽  
Constitutional Court ◽  
State Of Emergency ◽  
Constitutional Review ◽  
Republic Of Moldova ◽  
The Republic ◽  
The Right ◽  
Epidemiological Situation

On 17.03.2020, the Parliament declared a state of emergency on the entire territory of the Republic of Moldova for the period March 17 - May 15, 2020. By the same Decision, the Parliament delegated the Commission for Exceptional Situations with the right to implement a series of measures to overcome the epidemiological situation in the country. However, in the conditions of a functioning Parliament and despite the clear and exhaustive texts of the Constitution, the Commission for Exceptional Situations amended during the state of emergency the Contravention Code, which is an organic law. The amendments specifically concerned the procedure and terms for examining infringement cases brought in connection with non-compliance with the measures adopted by the Commission for Exceptional Situations and the Extraordinary Commission for Public Health. In the conditions in which an organic law can be modified only by the Parliament, it is obvious the unconstitutionality, at least partial, of the Disposition no. 4 of 24.03.2020 of the Commission for Exceptional Situations, but unfortunately, the Constitutional Court is not mandated with the right to submit to constitutional review the normative acts adopted by the Commission for Exceptional Situations. Under these conditions, the state is obliged to identify solutions in order not to allow an authority to adopt unconstitutional normative acts that cannot be subject to constitutional review.

scholarly journals Relationship between national, international and European law within the constitutional review in Romania

2016 ◽  
pp. 91-107
Author(s):  
TUDOREL TOADER ◽  
MARIETA SAFTA
Keyword(s):  
European Union ◽  
Member State ◽  
Legal Order ◽  
Constitutional Court ◽  
European Law ◽  
The European Union ◽  
International Treaties ◽  
Constitutional Review ◽  
Exclusive Jurisdiction ◽  
Constitutional Identity

The Constitutional Court has ruled that, by adhering to the legal order of the European Union, Romania agreed that, in those areas where exclusive jurisdiction is conferred on the European Union, regardless of the international treaties priorly signed, implementation of its obligations arising therefrom is subject to the rules of the European Union. Otherwise, this would result in the undesirable situation where, through bi or multilateral internationally assumed obligations, Member State would seriously affect the Union’s competence and, in practice, would act in its place in the aforementioned areas. For this reason, in the field of competition, any State aid falls within the competence of the European Commission and appeal proceedings fall within the jurisdiction of the European Union. Therefore, pursuant to Article 11 para. (1) and Article 148 para. (2) and (4) of the Constitution, Romania applies in good faith the obligations resulting from the Accession Instrument, without interfering with the exclusive competence of the European Union and, by virtue of the compliance clause contained in the text of Article 148 of the Constitution, Romania cannot adopt a legislative act contrary to the obligations assumed as a Member State. All those already highlighted are subject to certain limitations, expressed in what the Court described as “national constitutional identity”.

Some Reflections on the Constitutional Review in Albania in a Comparison Key

2021 ◽  
Vol 12 (2) ◽  
pp. 22
Author(s):  
Ismail Tafani ◽  
Renata Tokrri
Keyword(s):  
Balkan Peninsula ◽  
Point Of View ◽  
Constitutional Reform ◽  
Constitutional Court ◽  
Constitutional Review ◽  
The World ◽  
Constitutional Legitimacy ◽  
Formal Point ◽  
Constitutional Revision

In this study we will try to analyze the foundations of the Constitution as a pillar and as a guarantee for its solidity. The study will also address the need for revision of the constitution as a fundamental element of its existence and continuity. Particular emphasis will be given to the comparison of the constitutions of the most important countries in the world as regards the procedures and limits to the constitutional revision. In this sense, the constitutions of some Balkan Peninsula countries will be analyzed to draw a comparison and analyze the Albanian Constitution as regards the procedure for its revision. The study intends to analyze the procedures for the revision of the Constitution as well as the explicit and implicit limits to these revisions. In the Constitutional revision in Albania in 2016, the role of the Constitutional Court on the control of the constitutional legitimacy of constitutional revision laws was clarified. Formal constitutionality is usually emphasized since the Albanian constitutional reform underlined that the Constitutional Court in Albania could express itself on the constitutionality of the Constitutional revision law only from a formal point of view.   Received: 2 January 2021 / Accepted: 27 February 2021 / Published: 7 March 2021

Constitutional Court and Constitutional Review in Albania

ICL Journal ◽  
2013 ◽  
Vol 7 (2) ◽  
Author(s):  
Brunilda Bara ◽  
Jonad Bara
Keyword(s):  
Rule Of Law ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Constitutional Review ◽  
The Rule Of Law ◽  
Historical Changes ◽  
Division Of Powers ◽  
Fundamental Rights And Freedoms ◽  
Legal Writers

AbstractThis article tends to give an insight on the historical and institutional develop­ment of the Constitutional Court of Albania, on the need of the society and the historical changes that led to its creation.It focuses especially on the role and competences of this Court on the protection of the rule of law, of the constitutional principles, on the balancing and division of powers, on the protection of the fundamental rights and freedoms of individuals. Its aim is to provide overall information on the functioning and standards it follows.It is based on the jurisprudence of this Court during the years and is enriched by its deci­sions on particular subjects and compares this Court to other similar ones in Eastern Euro­pean countries.The article is mainly directed to scholars and legal writers whose aim is to compare the organization and functioning of the Constitutional Court of Albania to other similar courts.

The First Preliminary Reference of the French Constitutional Court to the CJEU:Révolution de Palaisor Revolution in French Constitutional Law?

2015 ◽  
Vol 16 (6) ◽  
pp. 1471-1490
Author(s):  
François-Xavier Millet ◽  
Nicoletta Perlo
Keyword(s):  
Constitutional Law ◽  
Major Change ◽  
Constitutional Court ◽  
The European Union ◽  
Constitutional Review ◽  
Court Of Justice ◽  
Ex Post ◽  
European Court ◽  
The Face ◽  
First Time

A preliminary reference on the part of the Constitutional Council was, in several respects, not to be expected. It was debatable whether it would consider itself as a “court or tribunal” within the meaning of Article 267 of the Treaty on the Functioning of the European Union (TFEU) and, therefore, whether it would refer a case to the European Court of Justice (CJEU) at all. The French constitutional court could also have resorted to theacte clairdoctrine so as to escape from their obligation to ask for the interpretive guidance of the CJEU. However, the main reason why a reference was not awaited by legal actors lies in the limited jurisdiction of the Constitutional Council. Until the introduction in 2008 of the so-called QPC, that is,question prioritaire de constitutionnalité(the Priority Preliminary Reference mechanism on issues of constitutionality), theConseil constitutionnelhad a very limited jurisdiction compared to its European counterparts. Its main mission was to assess the conformity of parliamentary bills and treaties with the Constitution and only with the Constitution. Its review could only take placeex ante, between the adoption and the promulgation of a text. By opening the way to anex postreview of statutes with regard to the rights and freedoms guaranteed by the Constitution, the QPC brought about a major change in the French adjudication system: statutes are no longer immune from constitutional challenge once they are in force. However, treaties and other international or European commitments are no parameters of constitutional review. TheConseil constitutionnelmade this clear in 1975 and never seriously changed track, despite minor qualifications to the rule. In their seminalIVGruling on the Voluntary Interruption of Pregnancy Act, they held that it was not up to them to review the compatibility of bills with treaties, in spite of Article 55 of the Constitution. Consequently, the task of the constitutional judges does not go beyond the assessment of laws with regard to the Constitution. This is the main reason that explains why, on the face of it, theConseil constitutionnelwas unlikely to refer a case to the CJEU. Why would it seek the interpretation or ask for the review of a European text if this text is immaterial for it and if the yardstick of its examination is the Constitution and only the Constitution? Yet, it happened. For the first time, theConseilreferred a case to the CJEU on 4 April 2013. Although this is undoubtedly a major legal breakthrough, we will see in due course that this is probably more arévolution de palaisthan a true revolution in French constitutional law.

Hungarian Constitutional Court: Keeping Aloof from European Union Law

ICL Journal ◽  
2011 ◽  
Vol 5 (3) ◽  
Author(s):  
László Blutman ◽  
Nóra Chronowski
Keyword(s):  
European Union ◽  
Constitutional Court ◽  
Eu Law ◽  
The European Union ◽  
European Union Law ◽  
Constitutional Review ◽  
Legal Norms ◽  
Legal Rules ◽  
Tier System ◽  
Domestic Law

AbstractWhile the European Union is in the process of carefully navigating among the various forms of sub-federalism, Member States - including recent ones like Hungary, trying to find an equilibrium between their sovereignty and European supranationalism - have to cope with possible conflicts between their national legal systems and EU law. Since Hungary's accession to the European Union, the Hungarian Constitutional Court has faced questions regarding the constitutionality of EU legal rules and conflicts between European and national legal norms. This article examines these issues and analyzes criteria of constitutional review that the Court has gradually set out in dealing with some of these conflicts. So far, it has established two principles marking the boundaries of future constitutional practice. First, it will treat the founding and amending treaties of the European Union as part of domestic law for the purposes of constitutional review, thereby setting up a two-tier system of legal rules applicable within Hungarian legal practice instead of a possible three-tier construction that would distinguish between national, international and European law. Second, in the absence of jurisdiction to review substantive (un)constitutionality (as opposed to procedural constitutionality), the Constitutional Court does not regard a conflict between domestic law and EU law as a constitutionality issue and this mandates the ordinary courts to resolve such conflict of a sub-constitutional nature. Taking these conclusions as starting points, this article sets out the possible types of conflicts that may occur between EU rules and other legal rules applicable in Hungary, weighing the constitutional relevance of these conflicts; it also outlines the directions along which the practice of the Hungarian Constitutional Court may develop in this respect.

Balancing and judicial self-empowerment: A case study on the rise of balancing in the jurisprudence of the German Federal Constitutional Court

2015 ◽  
Vol 4 (1) ◽  
pp. 49-80 ◽  
Author(s):  
NIELS PETERSEN
Keyword(s):  
Judicial Power ◽  
Constitutional Court ◽  
Argumentation Framework ◽  
Constitutional Review ◽  
Federal Constitutional ◽  
German Constitutional Court ◽  
The Relationship ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

AbstractMany critics of the proportionality principle argue that balancing is an instrument of judicial self-empowerment. This contribution argues that the relationship between balancing and judicial power is more complex. Balancing does not necessarily create judicial power, but it presupposes it. This argument is confirmed through a case study of the German Federal Constitutional Court. The analysis shows that the German Constitutional Court was very reluctant to base decisions, in which it overturned legislation, on balancing in the first two and a half decades of its jurisprudence. However, in the late 1970s, once the Court had strengthened its own institutional position, it increasingly relied on balancing when declaring laws as incompatible with the constitution. Then, balancing developed into the predominant argumentation framework of constitutional review that it is today in the Court’s jurisprudence.

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