Viele Stimmen – ein Urteil

2021 ◽  
Author(s):  
Marina Bletsas
Keyword(s):  
Constitutional Court ◽  
Court Of Justice ◽  
Argumentative Discussion

Modern jurisprudence is intrinsically pervaded by a plurality of intertwined voices, only part of which can be traced back to the Court of Justice deciding the case. This book sheds light on the rhetorical-argumentative function of this linguistic polyphony by using the example of the Italian Constitutional Court judgement. To this end, an integrated polyphonic-argumentative approach is proposed on the basis of the Scandinavian polyphony and pragmadialectical theory of argumentation. With the help of the theoretical and methodological apparatus thus developed, the study shows how the reasons for the Italian constitutional court's decision can be understood and reconstructed as a literally staged argumentative discussion.

Public Sector Purchase Programme (PSPP) Case

2021 ◽  
Vol 192 ◽  
pp. 451-511
Keyword(s):  
European Union ◽  
Constitutional Court ◽  
Eu Law ◽  
The European Union ◽  
European Central ◽  
Court Of Justice ◽  
Basic Law ◽  
Federal Constitutional ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

451Economics, trade and finance — European Monetary Union — Fiscal sovereignty — Public debt — Monetary policy — Economic policy — European Union — Asset purchase programme — Quantitative easing — Central banks — European Central Bank — European System of Central Banks — BundesbankTreaties — Treaty-making powers — Constitutional limitations on treaty-making powers — Transfers of powers by States to intergovernmental and other transnational authorities — Whether compatible with constitutional prerogatives of national parliament — Overall budgetary responsibility — Basic Law of GermanyInternational organizations — European Union — Powers — Member States as masters of the treaties — Principle of conferral — Whether Union having competence to determine or extend its own powers — Principle of subsidiarity — Court of Justice of the European UnionRelationship of international law and municipal law — European Union law — Interpretation — Application — Judgment of Court of Justice of the European Union — Weiss — Principle of proportionality — Whether application of EU law having absolute primacy — Whether German Federal Constitutional Court having absolute duty to follow judgment of Court of Justice of the European Union — Compatibility with Basic Law of Federal Republic of Germany — Openness of German Basic Law to European integration — Whether purchase programme ultra vires — Whether ultra vires acts applicable in Germany — Whether having binding effect in relation to German constitutional organsJurisdiction — European Union institutions — Whether jurisdiction of German Federal Constitutional Court extending to Court of Justice of the European Union and European Central Bank — Whether acts of EU institutions subject to national constitutional review — Ultra vires review — Review of core identity of national constitution — Whether application of EU law having absolute primacy — Whether absolute duty to follow judgment of Court of Justice of the European Union — The law of Germany

A Constitutional Court for Europe?

2004 ◽  
Vol 6 ◽  
pp. 1-34
Author(s):  
Anthony Arnull
Keyword(s):  
European Union ◽  
European Court Of Justice ◽  
European Council ◽  
Constitutional Court ◽  
The European Union ◽  
Constitutional Order ◽  
Court Of Justice ◽  
European Court ◽  
The Future ◽  
Draft Constitution

The purpose of this article is to consider the effect of the draft Treaty establishing a Constitution for Europe on the European Court of Justice (ECJ). At the time of writing, the future of the draft Constitution is somewhat uncertain. Having been finalised by the Convention on the Future of Europe in the summer of 2003 and submitted to the then President of the European Council, it formed the basis for discussion at an intergovernmental conference (IGC) which opened in October 2003. Hopes that the text might be finalised by the end of the year were dashed when a meeting of the IGC in Brussels in December 2003 ended prematurely amid disagreement over the weighting of votes in the Council. However, it seems likely that a treaty equipping the European Union with a Constitution based on the Convention’s draft will in due course be adopted and that the provisions of the draft dealing with the ECJ will not be changed significantly. Even if either assumption proves misplaced, those provisions will remain of interest as reflecting one view of the position the ECJ might occupy in a constitutional order of the Union.

Judgment No. 238 – 2014 (IT. Const. Ct.)

2015 ◽  
Vol 54 (3) ◽  
pp. 471-506
Author(s):  
Alessandro Chechi
Keyword(s):  
The State ◽  
Legal Order ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
International Court Of Justice ◽  
State Immunity ◽  
Court Of Justice ◽  
International Court ◽  
Constitutional Legitimacy

On October 22, 2014, the Italian Constitutional Court rendered a decision on the constitutional legitimacy of certain domestic norms that required Italy’s compliance with the rule on state immunity sanctioned by the International Court of Justice (ICJ) with the Judgment Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening). The Constitutional Court declared that the international customary obligations on state immunity from jurisdiction can be applied automatically within the Italian legal order only as long as they are in conformity with the fundamental rights contained in the Constitution.

Das PSPP-Urteil des Bundesverfassungsgerichts: Umfang der Übertragung von Souveränität und Überprüfung von Ermessensgebrauch

IG ◽  
2021 ◽  
Vol 44 (3) ◽  
pp. 220-226
Author(s):  
Achim-Rüdiger Börner
Keyword(s):  
Member State ◽  
Constitutional Court ◽  
The Public ◽  
Court Of Justice ◽  
European Court ◽  
Federal Constitutional ◽  
National Constitution ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional ◽  
The Eu

In its judgment of 5 May 2020, the German Federal Constitutional Court (FCC) has held that the Public Sector Purchase Programme (PSPP) of the European Central Bank (ECB), which started in 2015, and the relevant decision of the European Court of Justice (ECJ) of 11 December 2018, holding that the programme is compatible with European Union (EU) law, are ultra vires acts. Indeed, this decision is based on a French understanding of discretion which has previously been adopted in the European Treaties and according to which discretion is controlled only for undue, illegal influence. Today, the Treaties have adopted a review of discretion under the aspects of suitability, necessity, and appropriateness. Moreover, criticism at the decision of the FCC neglects that the accession to and the membership in the EU have to observe the thresholds of the respective national constitution, as its violation is not and may not be expected by the Union or any other Member State. Ultra vires acts of the Union, which remain uncorrected by the Union itself, are subject to disapproval and rejection by the constitutional court of any Member State.

Romania heads for clash with EU over legal sovereignty

2021 ◽  
Keyword(s):  
Rule Of Law ◽  
Judicial Independence ◽  
Constitutional Court ◽  
Content Type ◽  
The Past ◽  
Court Of Justice ◽  
Recent Developments ◽  
The Government ◽  
The Eu

Significance After accentuated rule-of-law erosion during 2017-19, the new government encouraged hopes that such violations would become a thing of the past. However, last month, the government sacked the ombudsman, while the Constitutional Court declared void a judgement of the EU Court of Justice (CJEU) defending judicial independence. Impacts Recent developments erode hopes that last month’s positive CVM report will lead to Romania’s Schengen zone accession later this year. Failure to replace the ombudsman will not affect the coalition parties electorally, given the politicisation of rule-of-law issues. Subnational courts will be left confused whether to apply the Constitutional Court or the CJEU ruling to legal disciplinary cases.

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).

The First Preliminary Reference of the French Constitutional Court to the CJEU:Révolution de Palaisor Revolution in French Constitutional Law?

2015 ◽  
Vol 16 (6) ◽  
pp. 1471-1490
Author(s):  
François-Xavier Millet ◽  
Nicoletta Perlo
Keyword(s):  
Constitutional Law ◽  
Major Change ◽  
Constitutional Court ◽  
The European Union ◽  
Constitutional Review ◽  
Court Of Justice ◽  
Ex Post ◽  
European Court ◽  
The Face ◽  
First Time

A preliminary reference on the part of the Constitutional Council was, in several respects, not to be expected. It was debatable whether it would consider itself as a “court or tribunal” within the meaning of Article 267 of the Treaty on the Functioning of the European Union (TFEU) and, therefore, whether it would refer a case to the European Court of Justice (CJEU) at all. The French constitutional court could also have resorted to theacte clairdoctrine so as to escape from their obligation to ask for the interpretive guidance of the CJEU. However, the main reason why a reference was not awaited by legal actors lies in the limited jurisdiction of the Constitutional Council. Until the introduction in 2008 of the so-called QPC, that is,question prioritaire de constitutionnalité(the Priority Preliminary Reference mechanism on issues of constitutionality), theConseil constitutionnelhad a very limited jurisdiction compared to its European counterparts. Its main mission was to assess the conformity of parliamentary bills and treaties with the Constitution and only with the Constitution. Its review could only take placeex ante, between the adoption and the promulgation of a text. By opening the way to anex postreview of statutes with regard to the rights and freedoms guaranteed by the Constitution, the QPC brought about a major change in the French adjudication system: statutes are no longer immune from constitutional challenge once they are in force. However, treaties and other international or European commitments are no parameters of constitutional review. TheConseil constitutionnelmade this clear in 1975 and never seriously changed track, despite minor qualifications to the rule. In their seminalIVGruling on the Voluntary Interruption of Pregnancy Act, they held that it was not up to them to review the compatibility of bills with treaties, in spite of Article 55 of the Constitution. Consequently, the task of the constitutional judges does not go beyond the assessment of laws with regard to the Constitution. This is the main reason that explains why, on the face of it, theConseil constitutionnelwas unlikely to refer a case to the CJEU. Why would it seek the interpretation or ask for the review of a European text if this text is immaterial for it and if the yardstick of its examination is the Constitution and only the Constitution? Yet, it happened. For the first time, theConseilreferred a case to the CJEU on 4 April 2013. Although this is undoubtedly a major legal breakthrough, we will see in due course that this is probably more arévolution de palaisthan a true revolution in French constitutional law.

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