Constitutional Adjudication in Switzerland

This chapter considers how constitutional adjudication is conducted in Switzerland. It debunks the notion that the Swiss constitutional system is underdeveloped with regard to constitutional adjudication. The chapter contends that Switzerland has a thoroughly respectable system of constitutional adjudication, albeit with certain idiosyncratic flaws. In particular, this applies to cantonal state authority: the cantons are subject to comprehensive constitutional adjudication. This does not exclude the results of direct democratic decision processes. The Federal Supreme Court (Bundesgericht; Tribunal federal, Tribunale federale) has—and makes use of—the power to review cantonal laws and to revoke them if necessary. Constitutional case law in relation to the cantons is the basis on which the Federal Supreme Court developed an extraordinarily creative jurisprudence in the twentieth century; this jurisprudence has led, inter alia, to the recognition and use of several unwritten federal fundamental rights. In addition, the chapter argues that federal laws have ceased being completely immune against any kind of constitutional review. Finally, Switzerland played an important pioneering role in the development and testing of the public law appeal (Staatsrechtliche Beschwerde).

The Italian Constitutional Court

This chapter looks at the origins, history, and present-day status of the Italian Constitutional Court. It argues that the theme of the Italian constitutional jurisdiction’s Europeanization and internationalization relies on two premises. First, the indispensable interaction between the Constitutional Court, the ECJ, and the ECtHR shakes the premises and foundations of the centralized review of legislation. Second, the process of Europeanization and internationalization of constitutional justice is an ongoing process that is far from having reached a stable end. Today, the chapter shows how the Court seems to have embarked on a new ‘path’ of European multi-tier constitutionalism. Although the path’s end is neither in sight today nor devoid of contradictions, three possible scenarios regarding Italian constitutional jurisdiction emerge from the current jurisprudence of the Court.

Constitutional Justice in France

This chapter examines the concept of ‘constitutional justice’ (justice constitutionnelle) as it is understood within the French legal order. Afterward, the chapter examines the history of French constitutional justice from the Ancien Régime to the Fifth Republic. Here, the constitutional jurisdiction of the Fifth Republic—that is, the Constitutional—and, in a broader sense, the system of constitutional justice as it exists in the Fifth Republic—are given particular attention. But an analysis of the Constitutional Council is not enough, however. The chapter also allows for a larger picture that takes into account the interactions between constitutional jurisdiction and all the other judicial actors.

The Spanish Constitutional Tribunal

This chapter examines the Spanish Tribunal Constitucional. It showcases the story of the Tribunal as one of an institution that has been crucial for the success of the 1978 Constitution and thus for the setting up and consolidation of the Spanish constitutional democracy. It has brought to an end the work that the founding fathers were not able to conclude in 1978 as far as the territorial distribution of power is concerned. However, the chapter considers if maybe it is finally time to translate its praetorian construction of the autonomic State (Estado autonómico) into the words of the written Constitution, and by doing so closing a process that should not stay open permanently, and exposed to eventual substantial changes in the jurisprudence of the Tribunal, with all that this would imply at the expense of the definition of the territorial Constitution and its stability. In any case, the experience shows that entrusting a constitutional court with such a task implies to overburden it with a responsibility that no court is able to deal with for a long time.

Constitutional Adjudication in the Netherlands

This chapter studies constitutional review in the Netherlands. It argues that constitutional adjudication in the Netherlands does indeed exist, though not according to European norms. Furthermore, the chapter contends that the study of constitutional review in the Netherlands, viewed in the perspective of the European legal space, makes clear that the concept of ‘constitution’ stands in need of reconsideration. In this respect, the Netherlands’ constitutional order reflects perhaps more than some others the new international context in which the constitutional orders of Europe find themselves. It thus beckons a different view not only of constitutional review in the European legal space but also, consequently, of the place of national constitutions in the European legal space.

The Austrian Constitutional Court

This chapter pays attention to the Austrian Constitutional Court. This court-constitutional adjudication is characterized by a single institution, which in its competences and organizational structure is essentially unchanged compared to the Constitutional Court that was established in 1920. In order to understand today’s constitutional adjudication, the chapter discusses its historical beginnings immediately after the end of the monarchy. It also reveals that, in the European comparison, the Austrian Constitutional Court is of great importance in national constitutional practice. It owes this essentially to its power to review and strike down statutes. Until very recently, the Constitutional Court had no authority in disputes between different organs of the state. Only since the beginning of 2015 has it been responsible for ruling on disputes between organs of the Nationalrat and organs required to provide information.

The Constitutional Court of Hungary

This chapter is an overview of the Hungarian Constitutional Court. It first discusses the origins, history, and development of the Constitutional Court. The chapter then turns to the organization of the Hungarian Constitutional Court and the legal context within which it functions. Thereafter, the role of the Constitutional Court within the Hungarian political system is explored. The chapter considers the relationships between the Constitutional Court and the parliament and government as well as the ordinary courts. Next, the chapter examines the ideals and accomplishments of the Constitutional Court concerning its political role and the doctrine of constitutional law. Lastly, the chapter evaluates the Constitutional Court's development at a historical milestone—the transformation of the Hungarian legal order on the basis of constitutional standards.

The German Federal Constitutional Court

This chapter discusses the German constitutional court, otherwise known as the Federal Constitutional Court (Bundesverfassungsgericht; ‘BVerfG’). It first traces the development of the German process of constitutional jurisdiction from its pre-Nazi era roots to its astounding post-war transformation into one of the world’s leading courts. The chapter looks at the challenges inherent in the founding of the BVerfG before providing an overview of the organization and role and functions of the BVerfG. It shows how the BVerfG acts as the ‘guardian’ of German constitutional law. To conclude, this chapter reflects on the increasing Europeanization of constitutional law and what it means for the BVerfG to navigate this new era of constitutional pluralization.

The Constitutional Court of Czechia

This chapter focuses on the Czech Constitutional Court (CCC). It shows, on the one hand, how the CCC has so far skilfully navigated through political ups and downs and has risen to prominence in Czech politics. On the other hand, this chapter also suggests that the CCC, despite its current wide powers, is a rather fragile institution. It argues that the creation of the CCC must be understood in the broader historical and political context. To that end, the chapter sketches the institutional design of the CCC and discusses the CCC’s powers. Subsequently, the chapter analyses the internal judicial practices of the CCC and the key procedural rules, then provides the taxonomy of the CCC’s rulings as well as their style, effects, and publication. Finally, it identifies and discusses political determinants of the CCC’s functioning and focuses on the interaction of the CCC with other domestic as well as supranational actors.

The Influence of the United States Supreme Court on Judicial Review in Europe

This chapter outlines the influence of the United States Supreme Court, and its institution of ‘judicial review’, on certain constitutional systems of Europe. It first introduces the United States Supreme Court and the institution of ‘decentralized’ judicial review, and then discusses the fate of American judicial review in the early nineteenth century. The chapter proceeds to an examination of the influence of the American Constitution and the American Supreme Court in the early nineteenth century in Europe, before recounting how the great philosopher and political thinker, Hans Kelsen, advanced another form of judicial review—‘centralized’ judicial review. Next, an analysis of the influence of the United States Supreme Court on certain constitutional tribunals created in Europe in the post-Second World War period is made, alongside a discussion of the separate path taken by judicial review in France under the Constitution of the Fifth Republic (1958) and the influences on constitutional tribunals created in Eastern Europe after the fall of the Soviet Union. Finally, this chapter offers some reflections on the influence of the Supreme Court’s case law on decisions of European courts of the contemporary period.