scholarly journals The Italian Constitutional Court in its Context: A Narrative

2021 ◽  
pp. 1-25
Author(s):  
Diletta Tega
Keyword(s):  
Case Law ◽  
Political Context ◽  
Constitutional Court ◽  
Constitutional Courts

Italian Constitutional Court, development of re-centralised case law against the displacement of national constitutional courts – Italian Constitutional Court challenges the Simmenthal doctrine – Double preliminary questions – The Italian Constitutional Court’s continuous need for legitimation – The Italian Constitutional Court’s adaptation of its case law and doctrines to the legal and political context

Activation of theUltra ViresReview: TheSlovak PensionsJudgment of the Czech Constitutional Court

2013 ◽  
Vol 14 (7) ◽  
pp. 959-973 ◽  
Author(s):  
Georgios Anagnostaras
Keyword(s):  
National Level ◽  
National Court ◽  
Case Law ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
German Constitutional Court

It is now almost two decades since the German Constitutional Court proclaimed inMaastrichtits capacity to review whether the Union institutions respect the limits of their conferred competences and to pronounce inapplicable at national level all legal instruments adopted by them in transgression of these boundaries. Thisultra viresdoctrine inspired the case law of several other constitutional courts, which announced their intention to operate in exceptional circumstances as anultima ratioagainst the violation by the Union institutions of the principle of conferral. The German Constitutional Court itself emphatically reaffirmed on various occasions its role as the ultimate protector of constitutionality against theultra viresintroduction and interpretation of Union law, most prominently in its eminentLisbonruling. Until recently though, there was no actual precedent of a national court proclaiming a Union act asultra vires.Even when a constitutional court reviewed the contested act onultra viresgrounds, it eventually concluded that it complied with the principle of conferred powers.

scholarly journals Judicial Review of Democracy. Maintenance of Democracy as a Functionalist Mission in the Jurisprudence of the Constitutional Court of Kosovo

Südosteuropa ◽  
2020 ◽  
Vol 68 (4) ◽  
pp. 530-553
Author(s):  
Enver Hasani
Keyword(s):  
Legal Theory ◽  
Case Law ◽  
Point Of View ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Contractual Relationship ◽  
Constitutional Justice ◽  
Constitutional Jurisprudence

AbstractUsing Kosovo and its constitutional jurisprudence as a case study, this paper discusses the role of constitutional courts as agents for implementing a democratic project on behalf of the sovereign as the principal. It discusses that role primarily from the point of view of the court’s functional intervention in improving the behaviour of the three branches of government. The paper begins by unveiling the historical development of constitutional justice, with as its focus the concept of new constitutionalism and the European/Kelsenian model encountered in Kosovo. It discusses too the theories of delegation of power, the contractual relationship, and trust between sovereigns and constitutional adjudicators in the context of subjects connected with this article. To present scenarios where the court manifests itself as a negative legislator, a positive legislator, and as an influencer of attitudes, the article includes convincing illustrations from both legal theory and case-law.

scholarly journals CONSTITUTIONAL LEGAL DISPUTES BETWEEN THE PRESIDENT OF ROMANIA AND OTHER PUBLIC AUTHORITIES IN THE CASE-LAW OF THE CONSTITUTIONAL COURT OF ROMANIA

2018 ◽  
Vol 11 (2) ◽  
pp. 88-95
Author(s):  
Mihaela SIMION
Keyword(s):  
Case Law ◽  
Political Context ◽  
Judicial Power ◽  
Constitutional Court ◽  
Public Authorities ◽  
Checks And Balances ◽  
The Public ◽  
Constitutional Order ◽  
Division Of Powers ◽  
Presidential System

Article 146 (e) of the Romanian Constitution stipulates the power of the Constitutional Court to solve legal disputes of a constitutional nature between public authorities. Thus, the Constitutional Court solves or settles constitutional disputes between the authorities belonging to the three powers in the state. These situations may concern disputes between two or more constitutional authorities regarding the content or length of their powers, as provided for by the Constitution. The result sought is to overcome possible institutional blockages.From 2005, when the Constitutional Court of Romania first decided on such dispute, and until today, thirteen decisions for settling certain disputes between the President of Romania and other public authorities have been issued. The multitude of disputes is due, primarily, to the semi-presidential system of government provided for by the Constitution and to the ambiguous provisions regarding the division of powers between the Romanian President, Government, Parliament and the judicial power. Last but not least, this dispute is due to a certain political context, too. The present paper aims to analyze the case-law of the Constitutional Court of Romania regarding the constitutional legal disputes between the President of Romania and other public authorities, as well as its impact on the constitutional order and the relationships between the public authorities from the checks and balances system.

Verfassungsgerichtliche Entscheidungsfindung und ihre Folgen

2020 ◽  
Author(s):  
Maria Abad Andrade
Keyword(s):  
Decision Making ◽  
Theoretical Models ◽  
Case Law ◽  
Decision Making Process ◽  
Constitutional Court ◽  
Institutional Autonomy ◽  
Constitutional Courts ◽  
Law And Politics ◽  
Decision Making Processes ◽  
First Time

How do constitutional courts decide and how do institutional factors affect decision-making processes and their outcomes? This book answers these questions—in a way that is relevant for law and politics—in two steps. In the first place, it develops possible theoretical models of constitutional courts’ decision-making. Thereafter, they are applied to the politically significant Turkish Constitutional Court (1962–2012) for the first time. Using interviews with former judges and analyses of court rulings, the author proposes that ‘unfavourable coupling’ takes place at the Turkish Constitutional Court in the form of a decision-making logic that follows majority principles combined with a process that requires a willingness to compromise and seek consensus for the court to function appropriately. This coupling affects the court’s decision-making process, its case law and, indirectly, even its ability to gain institutional autonomy and authority.

scholarly journals Preliminary Reference and the Hungarian Constitutional Court: A Context of Non-Reference

2015 ◽  
Vol 16 (6) ◽  
pp. 1569-1590
Author(s):  
Fruzsina Gárdos-Orosz
Keyword(s):  
Rule Of Law ◽  
Case Law ◽  
Constitutional Court ◽  
Eu Law ◽  
The European Union ◽  
Constitutional Courts ◽  
Member States ◽  
Diverse Range ◽  
New Member States ◽  
Current State

Jiri Zemanek, Professor at Charles University, Prague, asks what conclusions may be drawn from the current state of acceptance of the European Union (EU) law doctrine by the constitutional courts of the new Member States for their performance in the agenda of preliminary rulings. What can they learn from the experience of the old Member States? Should they follow the practice of the AustrianVerfassungsgerichtshof(Constitutional Court), which referred its first question in 1999, four years after its accession, and later repeated it several times? Or should they follow the most active Belgian Cour Constitutionnelle? Should Hungary follow the practice of the Italian Constitutional Court, Lithuania, France, Spain, or Germany? Having reviewed the case law of the Hungarian Constitutional Court and the scholarly analysis in search of the “missing links,” this study wishes to contribute to the diverse range of ideas concerning European “rule of law” integration and constitutional court contributions to it.

scholarly journals The German Federal Constitutional Court’s Exercise of Ultra Vires Review and the Possibility to Open an Infringement Action for the Commission

2020 ◽  
Vol 21 (5) ◽  
pp. 1078-1089
Author(s):  
Sara Poli ◽  
Roberto Cisotta
Keyword(s):  
Case Law ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Related Case ◽  
The Public ◽  
Court Of Justice ◽  
Domestic Courts ◽  
Federal Constitutional ◽  
German Constitutional Court ◽  
Article 5

Abstract The paper examines the possible opening of an infringement procedure against Germany as a result of the breaches that emerge from the declaration by the German Constitutional Court that the Court of Justice has acted ultra vires in the Weiss judgment (C-493/17). The proportionality assessment of the Public Sector Purchase Programme (PSPP) of the European Central Bank (ECB), carried by the Court of Justice, is contested by the domestic court. We recall that the Commission enjoys great discretion regarding the launch of an infringement action based upon Article 258 of the TFEU and may be reluctant to use its powers, considering the special position of the constitutional courts in the context of Article 267 TFEU as well as the present situation of emergency following the pandemic. Yet, the possibility to start an infringement procedure for breaches of Treaty obligations resulting from an incorrect interpretation of domestic courts was admitted in case C-129/00 Commission v. Italy and applied in two subsequent cases (C-154/08 Commission v. Spain and C-416/17 Commission v. France). As a result of the ruling of May 5, 2020, the Court of Justice may find that Germany failed to fulfil obligations stemming from Article 267 TFEU and the related case-law, Article 19 TEU, as well as Article 5(2) TEU. Other breaches concern the independence of the ECB and of the Bundesbank (being it a Member of the European System of Central Banks (ESCB) and of the Eurosystem) as defined in Articles 130, 282(3) TFEU and Article 7 of the Protocol (No. 4) on the Statute of the ESCB and of the ECB. We argue in favour of the violation of all these provisions read in conjunction with the duty of loyal cooperation, laid down in Article 4(3) TEU. Yet, we conclude that it is uncertain whether the Commission will open (or continue) an infringement procedure against Germany since the Bundesbank may act to satisfy the requests of the German Constitutional Court in relation to the proportionality of the PSPP. It is to be hoped that the German State organs will make sure that the PSPP may be continued, thus ensuring the functioning of the Eurozone, despite the attack of the BVerfG to the EU Judicature and to Weiss ruling in particular.

scholarly journals Polish Judiciary and the Constitutional Fidelity. „In Judges We Trust”?

2017 ◽  
Vol 43 ◽  
pp. 265-277 ◽  
Author(s):  
Tomasz Tadeusz Koncewicz
Keyword(s):  
Rule Of Law ◽  
Case Law ◽  
Primary Objective ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Checks And Balances ◽  
The Rule Of Law ◽  
Scant Attention ◽  
Polish Government ◽  
Legal Consequences

Polish Judiciary and Constitutional Fidelity. „In Judges We Trust”?As the Polish government continues to strike at the very heart of the rule of law by refusing to implement, and publish, the judgments of the Constitutional Court, the issue of legal consequences of a judgment delivered, but unpublished and/or unimplemented, comes to the fore. The primary objective of the analysis is to show how disabling the Constitutional Court and constitutional capture of checks-and-balances should translate into the case law of ordinary judges. This latter aspect received only scant attention from the academia. Ordinary courts have their own promises to fulfill when faced with the all-out capture of constitutional essentials making up Polish legal order. As we move forward, these courts should be ready to take on the mantle of quasi-constitutional courts and defend the integrity of the system. Whether they are ready to perform such systemic function is a different question altogether.

4 Legal Acts, 4.2 Solange I, BverfGE 37, 291, 29 May 1974; Solange II , BverfGE 73, 339, 22 October 1986; Solange III, BverfGE 89, 155 12 October 1993; and Solange IV, BverfGE 102, 147, 7 June 2000

2016 ◽  
Author(s):  
Hilpold Peter
Keyword(s):  
Case Law ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
The European Union ◽  
Constitutional Courts ◽  
Control Activity ◽  
Community Law ◽  
Rights Protection ◽  
Basic Law ◽  
European Court

The Solange case-law stands for a specific form of interaction between the legal order of the European Union (EU) and the legal orders of the member states (MS) or, respectively, between the European Court of Justice (ECJ) and the national Constitutional Courts of the MS. At the start of this line of cases the German Constitutional Court (Bundesverfassungsgericht—BverfG) first upheld its power to consider the compatibility of Community law rules with fundamental rights of the Basic Law (Grundgesetz) ‘as long as the integration process has not progressed so far that Community law receives a catalogue of fundamental rights’ (Solange I). Afterwards, when fundamental rights protection had become sufficiently strong within the EC/EU the BVerfG declared to refrain from such a control activity ‘as long as the European Communities ensure effective protection of fundamental rights’ (Solange II). Subsequently, this case-law was further clarified.

The Constitutional Court of The Republic of Latvia

2020 ◽  
pp. 505-564
Author(s):  
Ineta Ziemele ◽  
Alla Spale ◽  
Laila Jurcēna
Keyword(s):  
Rule Of Law ◽  
Legal Discourse ◽  
Case Law ◽  
Legal Order ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Constitutional Review ◽  
European Model ◽  
Constitutional Justice ◽  
The Republic

This chapter examines constitutional review in Latvia. When the Latvian Constitution—the Satversme—was adopted in 1922, the European model of constitutional courts existed, but the idea of establishing a constitutional court in Latvia was not discussed. The chapter traces the development of Latvian constitutional justice following the establishment of the Satversme, before providing a brief overview of both the institution of constitutional review as well as the constitutional court in Latvia. The Latvian Constitutional Court has played an important role in developing the legal order in accordance with the principles of rule of law and democracy and in educating the society in these values. Lastly, the chapter discusses the case law of the Constitutional Court as part of a wider European legal discourse.

Die Bedeutung der russischen Verfassungsreform des Jahres 2020 für die Verfassungsgerichtsbarkeit

2021 ◽  
Vol 67 (1) ◽  
pp. 27-40
Author(s):  
Ol’ga Krjažkova
Keyword(s):  
Case Law ◽  
Constitutional Reform ◽  
Political Regime ◽  
Special Focus ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Constitutional Courts ◽  
Federal Constitutional ◽  
Constitutional Justice ◽  
The Russian Federation

The article analyzes the 2020 Russian constitutional reform with a special focus on constitutional justice. The author discusses the changes of the Constitution and the legislation on the Federal Constitutional Court and the Constitutional Courts of the constituent entities (subjects) of the Russian Federation. The analysis shows three main developments: First, the liquidation of the constitutional (charter) courts of the subjects of the Federation and their possible replacement by councils within legislative bodies. Secondly, changes of the organization of the Constitutional Court (the reduction of the number of its members, the decision that dissenting opinions of judges are no longer published), and of its relationship with other state bodies (increased dependence on the president and the Federation Council). Thirdly, the changes of the powers of the Constitutional Court (expansion of the powers and reduction of the capacity to consider complaints about violations of constitutional rights and freedoms of citizens). The analyses also looks on previous changes of the legal regulations in this area and the case law of these courts. The article shows that the changes were made gradually and are affected by the current Russian political regime. Lastly, it shows that the constitutional reform did not strengthen, but weakened the institutions of constitutional justice in Russia.

Sign in / Sign up

Export Citation Format

Share Document