scholarly journals Constitutionalizing the act of justice in the European Union

2020 ◽  
pp. 47-63
Author(s):  
MARIETA SAFTA
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Constitutional Court ◽  
The European Union ◽  
Constitutional Courts ◽  
The Rule Of Law ◽  
The Public ◽  
Necessary Being ◽  
National Courts ◽  
Constructive Dialogue

This study addresses a component of the constitutionalization process at the Union level, namely the act of justice, considering its importance for the evolution of the constitutionalization process. The significance and importance of the constitutionalization of the act of justice are analyzed, as well as the premises and mechanisms of the constitutionalization of the act of justice in the European Union, with particular reference to the jurisprudence of the Romanian Constitutional Court. In this context, the control of constitutionality appears as a decisive modeling factor of the normative action of the legislator and even of the public policies. The constructive dialogue – if we refer to the two legal orders, national and supranational – is all the more necessary, being noticeable the key role played by national courts – and in particular constitutional courts – in defending the rule of law in the European Union, including through their collaboration with the CJEU in cases and through the instruments provided for in the Constitutions and the Treaties.

scholarly journals The Responsibility of Courts in Maintaining the Rule of Law: Two Tales of Consequential Judicial Self-Restraint

2021 ◽  
pp. 155-181
Author(s):  
Pál Sonnevend
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Constitutional Court ◽  
Court Decisions ◽  
The European Union ◽  
Constitutional Courts ◽  
The Rule Of Law ◽  
Legislative Power ◽  
The Face ◽  
The Law

AbstractModern constitutionalism is based on the paradigm that courts are inherently entitled and obliged to enforce the constitution of the respective polity. This responsibility of courts also applies in the context of the European Union to both the CJEU and national constitutional courts. The present chapter argues that in the face of constitutional crises the CJEU and the Hungarian Constitutional Court shy away from applying the law as it is to the full. The reasons behind this unwarranted judicial self-restraint are most different: the CJEU aims to avoid conflicts with national constitutional courts whereas the Hungarian Constitutional Court has been facing a legislative power also acting as constitution making power willing to amend the constitution to achieve specific legislative purposes or to undo previous constitutional court decisions. Yet both courts respond to expediencies that do not follow from the law they are called upon to apply. It is argued that rule of law backsliding requires these courts to abandon the unnecessary self-restraint and exploit the means already available.

scholarly journals Austrian Constitution - general aspects

2018 ◽  
pp. 75-83
Author(s):  
OLGA-ANDREEA URDA
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Constitutional Court ◽  
The European Union ◽  
The Rule Of Law ◽  
Fundamental Law ◽  
General Aspects ◽  
The Comparative Study ◽  
Point Of Reference

The present article aims at presenting the Austrian fundamental law with the highlighting of some essential aspects regarding the exercise of the legislative, executive and judicial powers, the institutional particularities and, last but not least, the evolution of the regulation that was generated generated by the state's accession to the European Union. Constitutional control is another aspect that we have focused into the study, considering the important role of the Constitutional Court in the rule of law. The conducted analysis has significant valences, especially in the context in which it can signify a point of reference in the comparative study of constitutional regulations

The Constitutional Court and Others in Romanian Constitutionalism – 25 Years After

ICL Journal ◽  
2017 ◽  
Vol 11 (4) ◽  
Author(s):  
Bianca Selejan-Guțan
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Constitutional Court ◽  
The European Union ◽  
The Rule Of Law ◽  
Actual Role ◽  
Central Elements ◽  
Constitutional System ◽  
Critical Overview

AbstractThe current Romanian constitutional system, established in 1991, has undergone numerous formal and informal developments in the last 25 years. The main issues that arose in the decade since the country’s adhesion to the European Union were the respect for the rule of law, independence of the judiciary and the fight against corruption. In this context, the Constitutional Court has been one of the central elements of the rule of law guarantee in Romania. This paper intends to present a critical overview of the actual role of the Constitutional Court in the Romanian constitutional system, in the different contexts that link the Court with ‘others’, ie mainly with State powers (the Court itself being and independent organ, placed outside the judicial power).

scholarly journals Policing the Genuine Purity of Blood: The EU Commission’s Assault on Citizenship and Residence by Investment and the Future of Citizenship in the European Union

2021 ◽  
Vol 25 (1) ◽  
pp. 33-62
Author(s):  
Dimitry Vladimirovich Kochenov
Keyword(s):  
European Union ◽  
International Law ◽  
Rule Of Law ◽  
The European Union ◽  
The Rule Of Law ◽  
The Public ◽  
Poor Understanding ◽  
Purity Of Blood ◽  
Migration Law ◽  
The Eu

This article provides a brief critical assessment of the European Commission’s January 2019 “Report on Investor Citizenship and Residence Schemes in the European Union”. Since it is the firs detailed document by the Commission outlining this institution’s position on the matters of investment residence and citizenship, and given the Commission’s recently articulated intentions to take Cyprus and Malta to Court over their investment migration law and practice, the Report in question is of paramount importance. The document sets the legal-political context of the regulation of the migration of wealthy third-country nationals in Europe. It is also deeply fl awed. Rather that summarising the document, this article focuses on fi ve core defi ciencies of the Commission’s embarrassing product and demonstrates how the Commission failed to get the EU’s own law right, in addition to showing a poor understanding of international law on the matter. Ripe with nationalist assumptions not rooted in the Treaties or the secondary law of the Union and showcasing a timid, convoluted and inconsistent analysis of the issues it purports to address, the Report has unsurprisingly failed to change the landscape of regulation in the field of investment citizenship and residence in the EU or anywhere else in the world. What it did make clear, however, was that the mere political suspicion of a particular type of naturalisation is enough for the European Commission to set aside the law and misinform the public, underlying once again the problematic tension between the growing political nature of this institution and its key task as guardian of the Treaties. There is a burning need for the Commission to take a more careful, coherent and informed approach to its actions, an approach indispensable for the preservation of the rule of law in the Union.

The settlement of disputes of a constitutional nature: inside the Romanian Constitutional Court s rulings on the role and competences of the public authorities

2018 ◽  
pp. 51-70
Author(s):  
TUDOREL TOADER
Keyword(s):  
Rule Of Law ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Public Authorities ◽  
The Rule Of Law ◽  
The Public ◽  
The Subject ◽  
Constitutional Justice ◽  
Settlement Of Disputes

The separation and balance of State powers constitute the basis of the rule of law. Observance of this principle requires framing of public authorities within the limits of competence established by the Constitution and the law, as well as loyal cooperation between them. From this perspective, the attribution of the constitutional courts for settling legal disputes of a constitutional nature is an important tool for correcting the tendencies of violation of these limits, as well as for identifying solutions for situations that do not find an explicit regulation in the constitutional texts. The present study analyses the jurisprudence of the Constitutional Court of Romania in the field of legal disputes of a constitutional nature, revealing, together with the presentation of dispute situations, the vulnerabilities of the constitutional reference texts. It is also highlighted the role of the constitutional courts in the evolution of constitutional law institutions. The conclusion of the study, beyond the subject of legal disputes of a constitutional nature, bears on the necessity, even more so in this matter, of the certainty of jurisdictional interpretation. This certainty cannot be achieved as long as the interpretation is not authoritative; consequently, the assurance of the effectiveness of constitutional justice constitute a key issue of the rule of law.

scholarly journals DYNAMICS OF IMPLEMENTATION OF THE ASSOCIATION AGREEMENT BETWEEN UKRAINE AND THE EU: PROSPECTS AND NEW CHALLENGES

2020 ◽  
pp. 17-27
Author(s):  
I. Berezovska
Keyword(s):  
European Union ◽  
European Integration ◽  
Rule Of Law ◽  
Constitutional Court ◽  
The European Union ◽  
Integration Policy ◽  
Association Agreement ◽  
The Rule Of Law ◽  
Main Challenge ◽  
The Eu

The entry into force of the Association Agreement with the European Union was a fateful event for the contemporary history of Ukraine. Currently, both components of the association: political one, which consists in spreading European values to Ukraine, and economic one, which involves Ukraine's integration into the EU internal market in exchange for legislation approximation, are without exaggeration fundamental factors for further development of Ukraine. The results of the previous years of the Association Agreement implementation testify to both significant achievements and a number of problems in Ukraine's fulfillment of its association with the EU “homework”. The article is devoted to the analysis of dynamics and the recent trends in the process of the Agreement implementation. As a result of the political changes that took place in Ukraine in 2019, including the election of a new president, parliament and government, European integration work on the implementation of the Association Agreement began in the new conditions. The improvement of the national institutional mechanism designed to ensure better coordination of work on the implementation of the Agreement between the competent authorities is among the positive trends in the process of its implementation. The fundamental legal principles and basic directions of work on Agreement updating are analyzed. It is proved that the prospect of updating has become an effective impetus to improve implementation processes. By initiating such an update, in order to strengthen its position in the negotiations with the EU, the Ukrainian side is forced to objectively assess the effectiveness of the Agreement implementation in certain areas and to intensify the completion of processes that are significantly behind. A new challenge in the process of implementing the Association Agreement was the emergence of the pandemic factor in 2020. The introduction of national quarantine and the incidence rate have significantly shifted priorities and affected European integration processes, both within Ukraine and at the EU level. At the same time, it was stressed that the situation to ensure the Rule of law, in particular, the fight against corruption is the main challenge not only to obligations fulfillment under the agreement, but also to the entire European integration policy of Ukraine. It is noted that the decision of the Constitutional Court of Ukraine to repeal a significant part of anti-corruption legislation threatens the further integration of Ukraine with the EU. It was stressed that the future of not only Ukraine but also the region as a whole depends on whether the Association Agreement with the European Union will continue to serve as a transformational force capable of overcoming the weakness of the Rule of law within the country.

scholarly journals Compromise(d)? – Perspectives of Rule of Law in the European Union

2021 ◽  
Vol 2 (1) ◽  
pp. 207-227
Author(s):  
Márton Sulyok
Keyword(s):  
European Union ◽  
European Integration ◽  
Rule Of Law ◽  
International Organizations ◽  
The European Union ◽  
Constitutional Courts ◽  
Economic Interests ◽  
The Rule Of Law ◽  
The Eu

This paper introduces different perspectives of rule of law in the European Union starting out of the assumption that fear and (common) economic interests continue to be the primary motivator of European integration as to the European Union. The analysis touches upon the problematic tension between national specificities of the rule of law developed organically inside state frameworks of constitutionalism, through the practice of national constitutional courts and the practice and standards of international organizations and institutions in this matter. Starting out of problems brought about by open statehood and the “dialogical” development of rule of lawin the European Union, the paper also describes the institutions, concepts and processes relevant to the enforcement of the value of rule of law in the EU.

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 A Populist Monster and the future of Constitutional Democracy

2021 ◽  
Vol 4 (1) ◽  
pp. 83-100
Author(s):  
Andraž Teršek
Keyword(s):  
Rule Of Law ◽  
Legal Protection ◽  
Constitutional Court ◽  
Court Decisions ◽  
Constitutional Democracy ◽  
Council Of Europe ◽  
Constitutional Courts ◽  
The Rule Of Law ◽  
The Social ◽  
The Eu

Abstract The central objective of the post-socialist European countries which are also Member States of the EU and Council of Europe, as proclaimed and enshrined in their constitutions before their official independence, is the establishment of a democracy based on the rule of law and effective legal protection of fundamental human rights and freedoms. In this article the author explains what, in his opinion, is the main problem and why these goals are still not sufficiently achieved: the ruthless simplification of the understanding of the social function and functioning of constitutional courts, which is narrow, rigid and holistically focused primarily or exclusively on the question of whether the judges of these courts are “left or right” in purely daily-political sense, and consequently, whether constitutional court decisions are taken (described, understood) as either “left or right” in purely and shallow daily-party-political sense/manner. With nothing else between and no other foundation. The author describes such rhetoric, this kind of superficial labeling/marking, such an approach towards constitutional law-making as a matter of unbearable and unthinking simplicity, and introduces the term A Populist Monster. The reasons that have led to the problem of this kind of populism and its devastating effects on the quality and development of constitutional democracy and the rule of law are analyzed clearly and critically.

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