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 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 Beyond the Binary: Towards a Third Sex Category in Germany?

2018 ◽  
Vol 19 (3) ◽  
pp. 627-648 ◽  
Author(s):  
Peter Dunne ◽  
Jule Mulder
Keyword(s):  
Gender Identity ◽  
Case Law ◽  
Case Note ◽  
Constitutional Court ◽  
Legal Recognition ◽  
The Future ◽  
German Constitutional Court ◽  
Progressive Potential ◽  
Domestic Law

This Case Note discusses the recent judgment of the German Constitutional Court (1 BvR 2019/16) requiring either the legal recognition of sex categories beyond male or female, or the aboltion of sex registration requirements. The Note considers the Court's decision within the broader constitutional case law on gender identity, and explores both the progressive potential, and the future—perhaps unforeseen—consequences, of the ruling. The Case Note proceeds in three sections. Section A introduces the facts of the constitutional challenge, and sets out both the submissions of the complainant, as well as the reasoning of the Constitutional Court. In Section B, the Case Note explores the domestic law novelty of the decision, placing particular emphasis on the application of a constitutional equality framework to persons who experience intersex variance. Finally, in Section C, the Case Note contextualizes the judgment, situating the reasoning of the Constitutional Court within wider movements for transgender—otherwise known as trans—and intersex rights.

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).

scholarly journals General and Particular Approaches to Implementation of theEuropean Convention on Human Rights

2018 ◽  
Vol 55 ◽  
pp. 248-292
Author(s):  
VLADIMÍRA PEJCHALOVÁ GRÜNWALDOVÁ
Keyword(s):  
Human Rights ◽  
National Level ◽  
Case Law ◽  
European Convention ◽  
Constitutional Courts ◽  
The Czech Republic ◽  
Human Rights Protection ◽  
Rights Protection ◽  
National Courts ◽  
European Court

AbstractThis article deals with the implementation, at the national level, of European human rights protection standards as enshrined in theEuropean Convention on Human Rights(ECHR) and interpreted by the European Court of Human Rights (ECtHR). It discusses the principles of interpretation of theECHRby the ECtHR, the interaction and mutual dialogue between the ECtHR and national courts, and the approach of the latter to interpretation and application of the case law of the ECtHR. Using the concrete examples of France and the Czech Republic as case studies, it is shown to what extent and how European constitutional courts take into account and apply the letter of the Convention and its interpretation by the ECtHR.

Das BVerfG zwischen Verfassungsinterpretation, europäischer Integration und politischer Positionierung – Eine Zwischenbilanz zum NPD-Verbotsurteil vom 17.1.2017

2019 ◽  
Vol 102 (1) ◽  
pp. 57-77
Author(s):  
Lise Känner
Keyword(s):  
Political Parties ◽  
Case Law ◽  
Constitutional Court ◽  
State Repression ◽  
Political Background ◽  
German Constitutional Court ◽  
New Interpretation ◽  
Substantive Law

In this paper, the author examines the effects that the judgment of the German Constitutional Court concerning the party ban in Art. 21 I GG (17 January 2017) had on government, legislator and society since it was rendered roughly two years ago. For this purpose, she illustrates the relevant changes of the procedural and substantive law of Art. 21 GG and analyses the historical and political background of those changes. She puts special emphasis on the influence that the case law of the ECHR had on the new interpretation of Art. 21 GG. In the end, she questions whether the judgment, which on the surface emphasises the importance of strengthening the freedom of political parties, is able to live up to it’s own standards in reality. For this, she studies to what extent state repression (also, and in particular illegal one) of political parties has increased during the time since the judgment.

The EU Battle on the Last Word and the Environment

2021 ◽  
Vol 18 (4) ◽  
pp. 390-407
Author(s):  
Ludwig Krämer
Keyword(s):  
European Union ◽  
National Court ◽  
Constitutional Court ◽  
The European Union ◽  
Court Of Justice ◽  
German Constitutional Court ◽  
The Eu

Abstract In May 2020, the German constitutional court decided that under certain conditions, a decision by the Court of Justice of the European Union should or could be ignored by a national court, which would have the last word to decide on the compatibility with the EU Treaties of a measure adopted by an EU institution or body. The contribution examines, whether this German decision is compatible with the EU Treaties and concludes that it this is not the case.

scholarly journals The primacy and supremacy clauses of European Union Law and their application in the legal order of the Republic of Lithuania

2018 ◽  
Vol 112 ◽  
pp. 303-322
Author(s):  
Pavelas Ravluševičius
Keyword(s):  
European Union ◽  
National Court ◽  
Case Law ◽  
Court Case ◽  
Constitutional Court ◽  
Eu Law ◽  
The European Union ◽  
European Union Law ◽  
Eu Member States ◽  
The Republic

The primacy and supremacy clauses of European Union law (“EU law”) are to one of the most prevalent issues concerning the relationship between EU law and domestic law of the Republic of Lithuania. It seems that such issues were not definitely settled even when the Treaty of Lisbon amending the Treaty on European Union, which established the European Community. During that period, significant changes were made in EU Member States, regarding the domestic application of the principle of primacy and supremacy of EU law. Lithuanian law has undergone the development in this sphere too.The European Court of Justice (“ECJ”) has developed the meaning of the principle of primacy, which means that European Union law should take precedence over the national law (even over constitutional provisions) and, in case of conflicts between EU law and national law, every national court is obliged to apply the European Union law. The comparative analysis of the Lithuanian Constitutional Court case law shows counter development to the ECJ case law, which may cause the jurisdictional collision of setting aside EU law based on constitutional grounds.The paper includes some relevant examples of application of EU law arising from preliminary ruling procedure under Art. 267 of Treaty on the Functioning of the European Union in the praxis of the Lithuanian Constitutional Court and Lithuanian courts of general and special competences.

When, if not Now? An Update on Civil Partnership in Germany

2016 ◽  
Vol 17 (3) ◽  
pp. 487-508 ◽  
Author(s):  
Anne E.H. Sanders
Keyword(s):  
German Law ◽  
Case Law ◽  
Constitutional Court ◽  
Same Sex ◽  
Same Sex Couples ◽  
Recent Developments ◽  
German Constitution ◽  
German Constitutional Court ◽  
Same Sex Parents ◽  
Open Marriage

Following the article “Marriage, Same-Sex Partnership, and the German Constitution,” which was published in theGerman Law Journalin 2012 (seeAnne Sanders,Marriage, Same Sex Partnership and the Constitution, 13 German L.J. 911 [2012]), this article provides an update on recent developments in relation to same sex partnerships in Germany. The focus of this Article is case law of the German Constitutional Court from 2002 through today, but it also discusses other court decisions in relation to the rights of same sex parents. The Article concludes with an examination of a recent draft law which—if successful—will open marriage to same sex couples. While its chances for success are extremely slim, this Article argues that same sex marriage will eventually be introduced in Germany.

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.

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