scholarly journals The Dialectics Between Constitutional Identity and Common Constitutional Traditions: Which Language for Cooperative Constitutionalism in Europe?

2019 ◽  
Vol 20 (8) ◽  
pp. 1097-1118 ◽  
Author(s):  
Massimo Fichera ◽  
Oreste Pollicino
Keyword(s):  
Fundamental Rights ◽  
Constitutional Court ◽  
The European Union ◽  
Binding Force ◽  
Court Of Justice ◽  
Charter Of Fundamental Rights ◽  
And Function ◽  
Role And Function ◽  
Constitutional Identity ◽  
The Eu

AbstractThis Article revisits the role and function of constitutional identity and common constitutional traditions and claims that the latter have had an increasingly stronger influence on the process of European integration—more than may appear at first sight. In addition, the relevance of common constitutional traditions has not been undermined but, on the contrary, strengthened by the emergence of fundamental rights in EU law and the subsequent conferral of binding force on the Charter of Fundamental Rights. Constitutional identity and common constitutional traditions are part of two discourses—security and fundamental rights—which are an expression of the security of the European project as an overarching frame characterizing the EU as a polity and legal system. After an overview of some of the most important rulings of the Court of Justice of the European Union, this Article concludes by emphasizing the importance of the recent conciliatory attitude recently adopted by the Court of Justice, although the more ambivalent attitude of the Italian Constitutional Court indicates how conflictual features are becoming increasingly important and can no longer be concealed as the EU reaches a more advanced stage of integration.

scholarly journals Supremacía de la constitución versus primacía del derecho de la UE en materia derechos fundamentales: concordancias y discordancias entre el tribunal constitucional y el tribunal de justicia de la UE en el asunto Melloni

2017 ◽  
pp. 637
Author(s):  
Francisco Javier Donaire Villa
Keyword(s):  
European Union ◽  
National Level ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
The European Union ◽  
European Union Law ◽  
Court Of Justice ◽  
European Arrest Warrant ◽  
Charter Of Fundamental Rights ◽  
The Eu

Se analiza en este artículo el primer diálogo judicial directo entre el TC español y el Tribunal de Justicia de la UE, sobre la Euroorden y la interpretación del artículo 53 de la Carta de los Derechos Fundamentales de la UE cuando el nivel nacional de protección de los derechos es superior al dispensado por una norma de Derecho derivado de la Unión. Se ponen de manifiesto las posibles tensiones entre supremacía constitucional y primacía del Derecho de la Unión Europea, y la evocación por el Tribunal Constitucional de su doctrina de los derechos constitucionalmente reconocidos como límites a la integración en la Sentencia que cierra el diálogo con el Tribunal de Justicia en el Asunto Melloni.This paper surveys the first direct judicial dialogue between the Spanish Constitutional Court and the Court of Justice of the European Union on the European Arrest Warrant and the interpretation of Article 53 of the Charter of Fundamental Rights of the EU when the national level of protection of rights is higher than that provided by a rule of secondary legislation of the Union. It highlights the possible tensions between constitutional supremacy and primacy of European Union law, and the evocation made by the Constitutional Court of its doctrine on rights constitutionally recognized as limits to the European integration contained in the judgment which closes the dialogue between both Courts within the so-called Melloni case.

Migration and Asylum Cases before the Court of Justice of the European Union: Putting the Eu Charter of Fundamental Rights to Test?

2015 ◽  
Vol 17 (1) ◽  
pp. 1-38 ◽  
Author(s):  
Francesca Ippolito
Keyword(s):  
European Union ◽  
Fundamental Rights ◽  
Lisbon Treaty ◽  
The European Union ◽  
Court Of Justice ◽  
Charter Of Fundamental Rights ◽  
The Impact ◽  
The Eu ◽  
Third Country Nationals

This article explores the various guarantees embedded in the eu Charter of Fundamental Rights for eu citizens and third country nationals, following the extension of the Court’s jurisdiction by the Lisbon Treaty in the area of freedom, security and justice. In particular, it highlights the potential and limits to the impact of the Charter in immigration or asylum cases before the cjeu.

Chasing the European Court of Justice: On Some (Political) Attempts to Hijack the European Integration Process

2012 ◽  
Vol 14 (3) ◽  
pp. 243-272
Author(s):  
Giuseppe Martinico
Keyword(s):  
Fundamental Rights ◽  
Lisbon Treaty ◽  
The European Union ◽  
Acquis Communautaire ◽  
Revision Process ◽  
Court Of Justice ◽  
European Court ◽  
Charter Of Fundamental Rights ◽  
State Interference ◽  
The Eu

Abstract This article gives some examples of State interference in the interpretative activity of the Court of Justice of the European Union (ECJ), looking at the 1990s, at the more recent past and, finally, at the clauses introduced by the Lisbon Treaty, which represents the latest link in the “semi-permanent Treaty revision process” (de Witte). The article is divided into three parts: the first part will introduce the peculiarities of the ECJ’s interpretative activity, briefly recalling the debate on the specificity of the interpretation of EU law. The second part will be devoted to some recent and less recent attempts to hijack of the acquis communautaire (“the past”), while the third part will focus on the recent novelties introduced by the Lisbon Treaty and on the Charter of Fundamental Rights of the EU (EUCFR) and its explanations (“the future”). Finally, some concluding remarks will be presented at the end of the article.

scholarly journals La aplicación judicial de la CDFUE; un decálogo a partir de la jurisprudencia del Tribunal de Justicia de la Unión Europea

2017 ◽  
pp. 333
Author(s):  
Rafael Bustos Gisbert
Keyword(s):  
Case Law ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
The European Union ◽  
Basic Point ◽  
Derechos Humanos ◽  
High Courts ◽  
Court Of Justice ◽  
European Court ◽  
Charter Of Fundamental Rights

En este ensayo se pretende examinar cuáles son las pautas que ha de seguir el juez nacional cuando se enfrenta a la aplicación de la CDFUE. El punto de referencia básico en esta materia ha de ser la jurisprudencia sobre el tema del Tribunal de Justicia de la Unión Europea. De forma complementaria habrá de tenerse en cuenta la posición del Tribunal Constitucional y del Tribunal Europeo de Derechos Humanos. A partir de lo ocurrido en los casos más importantes hasta ahora planteados se pretende esclarecer cuándo y cómo ha de seguirse la jurisprudencia de los tres altos tribunales.This essay tries to establish the basic patterns that judges must follow when facing the adjudication of the Charter of Fundamental Rights of the European Union. The basic point of reference is the case law of the European Court of Justice. But they also must be take into account the case law of the Spanish Constitutional Court and the European Court of Human Rights. After the study of the most important cases in the topic, the essay attempts to clarify when and how to follow the jurisprudence of these High Courts.

scholarly journals Ne bis in idem: a separation of acts in transnational cases?

2015 ◽  
Vol 7 (2) ◽  
pp. 85-115
Author(s):  
Márk Némedi
Keyword(s):  
Case Law ◽  
Fundamental Rights ◽  
European Court Of Justice ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Ne Bis In Idem ◽  
Charter Of Fundamental Rights ◽  
Criminal Matters ◽  
The Eu

Abstract This paper analyses the case-law of the European Court of Justice on the substantive scope of ne bis in idem in transnational cases and evaluates the findings in light of the different concepts of legal interests inherent in the concept of crime as a material notion. I argue that the application of the interpretation of the ECJ to crimes against collective interests is insufficiently justified. As a result, the interpretation of ne bis in idem based on material facts appears only partially correct and a sense of distrust seems to be cemented between member states creating obstacles to a successful reform of the principle. Part one attempts to defend that the reasoning put forward by the court lacks relevance and evaluates how this affects mutual trust. Part two analyses this interpretation in the light of different forms of legal interest. Part three examines how later case-law has tried to explain the problematic interpretation of early cases and its relationship with the Charter of Fundamental Rights of the European Union. The article will conclude by summarising the findings which may put into perspective the more general challenges of cooperation in criminal matters within the EU.

scholarly journals «X and X v Belgium»: the need for EU legislation on humanitarian visa

sui generis ◽  
2017 ◽  
Author(s):  
Margarite Helena Zoeteweij-Turhan ◽  
Andrea Romano
Keyword(s):  
European Union ◽  
Fundamental Rights ◽  
The European Union ◽  
Advocate General ◽  
Eu Legislation ◽  
Court Of Justice ◽  
Charter Of Fundamental Rights ◽  
The Eu

This article examines the recent judgment of the Court of Justice of the European Union in the case of X and X v. Belgium (C-638/16 PPU). The issue at stake concerns an application for a visa with limited territorial validity (LTV) requested by a Syrian family at the Belgian embassy in Beirut in order to apply for asylum in Belgium. The article discusses the different interpretations given by the Advocate General and the Court of Justice and agrees with the AG that the EU Charter of Fundamental Rights leaves a limited margin of discretion to Member Sates and imposes a positive obligation to issue a LTV Visa in cases like X and X. It also concludes that the judgment in question clearly shows the need for the EU to adopt legislation regulating the issuance of humanitarian visas under the Visa Code.

scholarly journals Scope and Exercise of the Exclusive Competences of the Member States of the European Union

2020 ◽  
Vol 43 (4) ◽  
pp. 23-46
Author(s):  
Edyta Anna Krzysztofik
Keyword(s):  
European Union ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
The European Union ◽  
Constitutional Courts ◽  
Member States ◽  
Federal Constitutional ◽  
Uniform Manner ◽  
Constitutional Identity ◽  
The Eu

The process of European integration has introduced the Member States into a new legal reality. The existing exclusivity in the area of competence implementation has been replaced by a two-stage model of their exercise. The Member States, when conferring part of their supervisory powers, did not specify the scope of their own competences. The so-called European clauses were analysed in the Constitutions of selected Member States, which showed that they define the recipient of the conferral and, in a non-uniform manner, specify the subject of the conferral.  The analysis of the indicated provisions clearly shows that the Constitutions of the Member States exclude full conferral of competences on the European Union. There is no specification of the scope of competences that may be conferred. However, this issue was addressed by Constitutional Courts of the Member States. The article refers to the judgements of the German Federal Constitutional Court and the Polish Constitutional Court. It has been shown that they equate exclusive competences of the Member States with the scope of the concept of constitutional identity reduced to basic principles of the state. The Court of Justice of the European Union analysed the scope of competences of both entities. The article presents the analysis of judgements on: entries in Civil Registry regarding transcription of surnames, the issue of recognition of same-sex marriages, reform of the judiciary system in Poland, and the application of the Charter of Fundamental Rights in the areas that do not fall under EU competence. Regardless of the division of competences, the EU is bound by the principle of respect for national identity of the Member States, including constitutional identity. It both obligates the EU to respect the exclusive competences of the Member States and is a premise restricting the achievement of EU objectives.

Hic Sunt Nationes: The Elusive Limits of the EU Char ter and the German Constitutional Watchdog: Court of Justice of the European Union: Judgment of 26 February 2013, Case C-617/10 Åklagaren v. Hans Åkerberg Fransson

2013 ◽  
Vol 9 (2) ◽  
pp. 315-334 ◽  
Author(s):  
Filippo Fontanelli
Keyword(s):  
Case Law ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
The European Union ◽  
Eu Legislation ◽  
Ne Bis In Idem ◽  
Charter Of Fundamental Rights ◽  
German Constitutional Court ◽  
Theoretical Foundations ◽  
The Eu

In late February 2013, the ECJ handed down the Åkerberg Fransson preliminary ruling (Fransson), a ten-page decision which tackled the unresolved issue of the application of the EU Charter of Fundamental Rights (the Charter) to domestic measures. Notwithstanding the Advocate General's effort to investigate the theoretical foundations that legitimise this projection of the Charter upon state acts, the ECJ delivered a judgment which largely followed in the pattern of its own anodyne case-law on general principles. The judgment confirmed that the Swedish measures at stake – cumulating administrative and criminal penalties for tax evaders – ‘implemented’ EU law insofar as they contributed to the effective collection of VAT, one of the sources of the EU's budget. As a consequence, it is for the Swedish judge to check their compliance with the Charter's norm on ne bis in idem. This decision confirms that the Charter applies to national measures that do not transpose EU legislation and happen to fall within its scope only incidentally.Regardless of the relative conservativeness of this finding, its implications are fated to displease member states and the reasoning of the Court was not compelling enough to prevent distinguishing and criticism. The first attack was promptly brought by the German Constitutional Court, which in its anti-terror database decision made clear that it subscribes only to a restrictive reading of Fransson and does not accept that the Charter applies to domestic measures whose objectives are set domestically, even if their purposes are shared by EU legislation.

Travauxto the EU Treaties: Preparatory Work as a Source of EU Law

2015 ◽  
Vol 17 ◽  
pp. 145-167 ◽  
Author(s):  
Samuli MIETTINEN ◽  
Merita KETTUNEN
Keyword(s):  
European Union ◽  
Case Law ◽  
Fundamental Rights ◽  
Eu Law ◽  
The European Union ◽  
Court Of Justice ◽  
Dynamic Interpretation ◽  
Charter Of Fundamental Rights ◽  
Preparatory Work ◽  
The Eu

AbstractThe Court of Justice of the European Union has historically rejected references to preparatory work in the interpretation of EU Treaties. However, the preparatory work for the EURATOM, Maastricht, and Constitutional Treaties have played a role in recent judgments. The ‘explanations’ to the Charter of Fundamental Rights are expressly approved in the current Treaties. We examine the emerging case law on preparatory work. Reference to the drafters’ intent does not necessarily support dynamic interpretation, and may potentially even ossify historical interpretations. Even if the consequence of their introduction is a conservative interpretation, their use raises questions of transparency and democracy, and complicates the already difficult task of interpreting the EU constitution.

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