Erosion of Constitutional Rights in EU Law: A Call for ‘Substantive Co-operative Constitutionalism’

ICL Journal ◽  
2015 ◽  
Vol 9 (2) ◽  
Author(s):  
Anneli Albi
Keyword(s):  
Rule Of Law ◽  
Public Discourse ◽  
National Level ◽  
Constitutional Rights ◽  
Eu Law ◽  
Constitutional Courts ◽  
Supreme Courts ◽  
Constitutional Review ◽  
European Arrest Warrant ◽  
Teleological Interpretation

AbstractThis two-part paper seeks to invite discussion on a deeply embedded narrative in the European scholarly and public discourse that reduces the protection of national consti­tutions to Eurosceptic, old-fashioned reluctance to relinquish sovereignty. The paper ar­gues that because of the simplistic ‘Eurosceptic’-‘Euro-friendly’ looking glass, the discourse has broadly been oblivious of, and given scholarly legitimacy to, the erosion of a range of classic constitutional rights and rule of law safeguards in EU law. Part 1 of the paper, docu­menting comparative case law in seven areas, posits an emergence at the EU level of the adoption of measures which, if attempted at national level without the constraints of EU law, would in a significant number of national legal orders prompt constitutional courts to voice serious concerns about core European constitutional values. The case studies start with some past criticisms regarding rights protection in the single market, moving then to EU measures that have affected core constitutional values, such as secret anti-terrorist measures, the Data Retention Directive, the European Arrest Warrant system with its nu­merous Kafkaesque elements, the broader move towards imposition of criminal and ad­ministrative sanctions on the basis of teleological interpretation and without a law, and the ESM Treaty. The paper also queries the reduced access to courts, the changing role of courts and an emerging gap in constitutional review. Against this background, Part 2 of the paper calls for recalibrating the discourse towards ‘substantive co-operative constitutional­ism’. The aim is to explore how to better uphold the standards of protection developed by national constitutional and supreme courts for classic, substantive constitutional values, in a context where EU constitutional law has brought about a shift towards a thin, weak, procedural version of constitutionalism, the rule of law and judicial review, with priority given to effectiveness, uniformity, trust and, after Melloni, supremacy over constitutional rights.

Erosion of Constitutional Rights in EU Law: A Call for ‘Substantive Co-operative Constitutionalism’

ICL Journal ◽  
2015 ◽  
Vol 9 (3) ◽  
Author(s):  
Anneli Albi
Keyword(s):  
Constitutional Law ◽  
Case Law ◽  
Limited Attention ◽  
Constitutional Rights ◽  
Eu Law ◽  
National Parliaments ◽  
Constitutional Courts ◽  
Supreme Courts ◽  
Constitutional Review ◽  
European Arrest Warrant

AbstractPart 1 of this paper (published in the previous issue) documented comparative case law in a number of areas - from the single market to the Data Retention Directive, European Arrest Warrant, ESM Treaty and constitutional review - where constitutional rights and rule of law safeguards have been levelled downwards in the context of imple­mentation of EU law in different Member States. Here, Part 2 of the paper propounds the concept of ‘substantive co-operative constitutionalism’, exploring how European constitutional law and the European constitutional law discourse could be recalibrated towards a greater responsiveness to substantive constitutional values. Part 2 starts by outlining an increasing shift from the mindset and vocabulary of classic, comparative (continental) European constitutional law, to a more formal, procedural, thin version of EU constitutionalism, where the keywords are supremacy, uniformity, direct effect, autonomy, effectiveness and trust. Indeed in the context of democracy and legitimacy in transnational govern­ance, some scholars have written about the ‘erosion’, ‘twilight’ or ‘decline’ of constitutional­ism or ‘the end of constitutionalism as we know it’. More recently, Euro crisis measures have prompted heightened concerns about the prolonged and perhaps even irreversible suspension of constitutionalism, the Rechtsstaat and democracy. Yet in the mainstream EU and transnational constitutional law discourse, such concerns have generally received limited attention. The article traces the reasons for the shift in the paradigm of constitutionalism on the basis of the literature on the epistemology of EU law and of transnational constitutional law, and argues that such a shift is not the only way forward. The paper then proceeds to outline some suggestions on how a more substantive version of co-operative constitutionalism could be operationalised in practice. This includes a significantly more probing and proactive role for the national constitutional courts, supreme courts and national parliaments, as well as the creation of mechanisms in the EU institutional and judicial framework for greater responsiveness to constitutional values and constitutional diversity.

Constitutional courts as European Union courts

2017 ◽  
Vol 24 (6) ◽  
pp. 792-821 ◽  
Author(s):  
Davide Paris
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
State Of The Art ◽  
Fundamental Rights ◽  
Comparative Perspective ◽  
Eu Law ◽  
Constitutional Courts ◽  
Constitutional Review ◽  
The Rule Of Law ◽  
Domestic Legislation

In principle, constitutional courts do not review questions of domestic compliance with EU law, as these are considered to be outside their jurisdiction. But there are several exceptions in which EU law serves as a yardstick for constitutional review. This article focuses on these exceptions from a comparative perspective. First, it describes the ‘state of the art’ by examining whether and to what extent constitutional courts already use EU law as a standard for their decisions and invalidate domestic legislation or courts’ decisions that conflict with EU law. Then, it explores the limits within which EU law can be invoked as a yardstick for constitutional review without jeopardizing the principle of primacy of EU law. Finally, it argues that constitutional courts should not be afraid to embrace EU law as a standard for review: Doing so would not only contribute to a better protection of fundamental rights and the rule of law in Europe, but would also further the interests of constitutional courts.

Review by Constitutional Courts of the Obligation of National Courts of Last Instance to Refer a Preliminary Question to the Court of Justice of the EU

2015 ◽  
Vol 16 (6) ◽  
pp. 1663-1700 ◽  
Author(s):  
Clelia Lacchi
Keyword(s):  
European Union ◽  
Eu Law ◽  
The European Union ◽  
Constitutional Courts ◽  
Member States ◽  
Constitutional Review ◽  
National Courts ◽  
Court Of Justice ◽  
Judicial Remedy ◽  
The Eu

The Constitutional Courts of a number of Member States exert a constitutional review on the obligation of national courts of last instance to make a reference for a preliminary ruling to the Court of Justice of the European Union (CJEU).Pursuant to Article 267(3) TFEU, national courts of last instance, namely courts or tribunals against whose decisions there is no judicial remedy under national law, are required to refer to the CJEU for a preliminary question related to the interpretation of the Treaties or the validity and interpretation of acts of European Union (EU) institutions. The CJEU specified the exceptions to this obligation inCILFIT. Indeed, national courts of last instance have a crucial role according to the devolution to national judges of the task of ensuring, in collaboration with the CJEU, the full application of EU law in all Member States and the judicial protection of individuals’ rights under EU law. With preliminary references as the keystone of the EU judicial system, the cooperation of national judges with the CJEU forms part of the EU constitutional structure in accordance with Article 19(1) TEU.

scholarly journals The Changing Role of Nordic Courts

2021 ◽  
pp. 167-183
Author(s):  
Martin Sunnqvist
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Case Law ◽  
Nordic Countries ◽  
Constitutional Rights ◽  
Supreme Courts ◽  
The Rule Of Law ◽  
Changing Role

AbstractThe Supreme Courts in all the Nordic countries reserve, and exercise, the power to set aside unconstitutional laws. In this way, they protect the rule of law and the human rights that are enshrined in their national constitutions. However, they go about this in different ways and treat different constitutional rights in ways distinct from one another. In this chapter, I discuss the development of the diversified judicial review of legislation in the Nordic countries. I also discuss the independence of their judiciaries in the light of the latest developments in Europe. Finally, I discuss the importance of developing standards for the interpretation of case law on these constitutional issues. Recent development brings with it two consequences for Nordic courts: the task of assessing the independence of judiciaries in other EU states, and questions about how the rule of law and the independence of the judiciary can be strengthened at home.

scholarly journals Parallele Anwendbarkeit von Grundrechtecharta der EU und nationalen Grundrechten

2018 ◽  
Vol 28 ◽  
pp. 9-16
Author(s):  
Ivo Pilving
Keyword(s):  
National Level ◽  
National Court ◽  
Fundamental Rights ◽  
Parallel Analysis ◽  
Constitutional Rights ◽  
Eu Law ◽  
National Courts ◽  
Decisive Importance ◽  
Charter Of Fundamental Rights ◽  
National Constitution

Pursuant to its Article 51 (1), the EU Charter of Fundamental Rights covers the implementation of EU law. Since 2014, the Estonian Supreme Court has applied the assumption that the Charter, in principle, does not preclude parallel applicability of national-level fundamental rights in areas subject to EU law, although the primacy, unity, and effectiveness of EU law must not be compromised thereby. The Member State's margin of appreciation should not be considered a precondition for the relevance of national fundamental rights. Even mandatory norms of EU law, which inevitably require certain national measures (e.g., permission to use a piece of music for sampling as in CJEU case C-476/17: Pelham), do not exclude the applicability of constitutional rights (here, the composer's copyright), though these can justify their restriction. Hence, the relevant piece of EU legislation itself must be valid. The CJEU should follow the principle of constitutional plurality in dialogue with national courts when examining the validity of EU norms restricting national fundamental rights. A parallel analysis of the national constitution and Charter by the competent national court would assist the CJEU in issuing a preliminary ruling. The most favourable standard of the fundamental rights in sense of the Article 53 should not be determined on merely abstract terms. Instead, the results of parallel analysis in light of the pending case should be of decisive importance. One conclusion presented is that in cases of multipolar conflict, there remains the possibility that a even fundamental right of one person that is derived from a national constitution can sometimes justify infringement on the charter-based right of another if there is no secondary legal balance of legal positions. In addition, exceptional situations might exist wherein fundamental principles of national constitutions may be granted precedence over the effectiveness of EU law.

scholarly journals Symposium Summary: The State of Canada's Constitutional Democracy

2016 ◽  
Vol 25 (3) ◽  
pp. 1
Author(s):  
Cheryl Milne ◽  
John Greiss ◽  
Deborah Boswell
Keyword(s):  
Rule Of Law ◽  
Personal Experience ◽  
Separation Of Powers ◽  
National Level ◽  
Constitutional Rights ◽  
Constitutional Democracy ◽  
The Rule Of Law ◽  
University Of Alberta ◽  
University Of Toronto ◽  
The University

Dramatic changes have taken place in recent years at the national level with respect to the day to day functioning of our constitutional democracy. These changes impinge on the separation of powers, the rule of law and the supremacy of the constitution. The David Asper Centre for Constitutional Rights at the University of Toronto partnered with the Centre for Constitutional Studies at the University of Alberta to organize a two day symposium in February 2016, at the Faculty of Law, University of Toronto, designed to bring together a diverse group of academic experts and individuals with experience in public service at high levels, as well as academics with personal experience in governance, to discuss these changes.

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 National Constitutional Courts as Guardians of the Charter: A Comparative Appraisal of the German Federal Constitutional Court's Right to Be Forgotten Judgments

2020 ◽  
pp. 1-21
Author(s):  
Clara RAUCHEGGER
Keyword(s):  
Primary Source ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Constitutional Courts ◽  
Constitutional Review ◽  
Federal Constitutional ◽  
Eu Fundamental Rights ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

Abstract The binding legal force that the Charter acquired with the Treaty of Lisbon has led some national constitutional courts to adopt an entirely new approach to EU fundamental rights. Most notably, the Austrian Constitutional Court, the Italian Constitutional Court, and the German Federal Constitutional Court have explicitly made the Charter a yardstick of constitutional review. This article compares and contrasts the approaches of these three courts to the Charter. It shows that the strategies of the Austrian and German Constitutional Courts have many characteristics in common, including that national constitutional rights are treated as a primary source and the Charter as a mere secondary benchmark in the majority of cases. The most distinctive feature of the Italian Constitutional Court's strategy is that it mainly aims to prevent ordinary courts from circumventing constitutionality refences by directly applying the Charter. The article concludes by arguing that it has many advantages when national constitutional courts adopt the Charter as a yardstick of constitutional review. It is for the constitutional courts and the CJEU to ensure that these benefits are not outweighed by some serious drawbacks of constitutional review in light of the Charter.

If You Can't Beat Them, Join Them: The French Constitutional Council's First Reference to the Court of Justice

2014 ◽  
Vol 10 (1) ◽  
pp. 154-161 ◽  
Author(s):  
Arthur Dyevre
Keyword(s):  
The Body ◽  
Eu Law ◽  
National Parliaments ◽  
Constitutional Courts ◽  
Constitutional Review ◽  
Court Of Justice ◽  
European Court ◽  
Lower Courts ◽  
Zero Sum ◽  
Constitutional Revolution

Not unlike national parliaments, which have seen their influence eroded as power gradually shifted to Brussels, constitutional courts are, if anything, net losers of the integration process.1 At least lower domestic courts had some incentives to embrace the constitutional revolution initiated by the Court of Justice. For them, the twin doctrines of supremacy and direct effect combined with the Simmenthal mandate came as a promise of empowerment. It was a promise of empowerment against domestic legislators as lower courts gained the power to set aside statutes, in legal systems that had either made it the exclusive preserve of constitutional courts or denied it altogether to the judicial branch. But equally, it was a promise of empowerment against the higher echelons of the domestic judicial hierarchy as EU law and the European Court afforded lower court judges a convenient avenue to challenge established lines of case law. None of this applied to constitutional courts. Not only did legal integration entail the loss of a cherished monopoly that was a distinctive trait of the Kelsenian model of constitutional review. But it also meant that, as the body of EU law expanded, so too did the Court of Justice's remit and influence. Very much like in a zero-sum game, any jurisdictional gain for the Court of Justice came at a commensurate loss for constitutional judges. Worse still, for the constitutional courts that used to exert a tight grip on the operations of ordinary courts, or wished to establish such control, the ever-expanding reach of EU law together with the emergence of a powerful European Court posed a potentially ominous challenge to their authority over ordinary judges.

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