Pub Date : 2023-06-01DOI: 10.1017/S1574019623000111
E. Kuskonmaz
=3699386, visited 21 June 2023. The Grand Gala of PNR Litigations 307
=3699386，访问时间为2023年6月21日。PNR诉讼盛典307
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Pub Date : 2023-06-01DOI: 10.1017/S157401962300010X
Giacomo Di Federico, Giuseppe Martinico
What is the scope of application of Article 4(2) TEU? What is the relationship between the duty to respect national identity and the obligation to respect linguistic diversity, including speaking minorities within the Member States? In this case note, we will analyse the Boriss Cilevičs case, in which the Court of Justice gave a response to these questions that is in many ways both unclear and problematic. There are three aspects that, in our opinion, make this Court of Justice judgment particularly interesting. First, it is a ruling that shows the progressive involvement of national constitutional courts in the mechanism of the preliminary ruling procedure governed by Article 267 TFEU. The second reason that makes the case interesting concerns the use of Article 4(2) TEU on the duty to respect national identity.1
{"title":"Official Languages, National Identities and the Protection of Minorities: A Complex Legal Puzzle","authors":"Giacomo Di Federico, Giuseppe Martinico","doi":"10.1017/S157401962300010X","DOIUrl":"https://doi.org/10.1017/S157401962300010X","url":null,"abstract":"What is the scope of application of Article 4(2) TEU? What is the relationship between the duty to respect national identity and the obligation to respect linguistic diversity, including speaking minorities within the Member States? In this case note, we will analyse the Boriss Cilevičs case, in which the Court of Justice gave a response to these questions that is in many ways both unclear and problematic. There are three aspects that, in our opinion, make this Court of Justice judgment particularly interesting. First, it is a ruling that shows the progressive involvement of national constitutional courts in the mechanism of the preliminary ruling procedure governed by Article 267 TFEU. The second reason that makes the case interesting concerns the use of Article 4(2) TEU on the duty to respect national identity.1","PeriodicalId":45815,"journal":{"name":"European Constitutional Law Review","volume":"19 1","pages":"346 - 370"},"PeriodicalIF":2.1,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46028157","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-06-01DOI: 10.1017/S1574019623000081
Joan Solanes Mullor
Judicial independence as a European constitutional principle – Freedom of expression of judges in connection with judicial independence – Rule of law backsliding – Catalan secession crisis – Spanish Constitutional Court disqualification doctrine of magistrates – Freedom of expression of judges in favour of the Catalan secessionist movement – Spanish soft law on judicial independence
{"title":"Spain, Judicial Independence, and Judges’ Freedom of Expression: Missing an Opportunity to Leverage the European Constitutional Shift?","authors":"Joan Solanes Mullor","doi":"10.1017/S1574019623000081","DOIUrl":"https://doi.org/10.1017/S1574019623000081","url":null,"abstract":"Judicial independence as a European constitutional principle – Freedom of expression of judges in connection with judicial independence – Rule of law backsliding – Catalan secession crisis – Spanish Constitutional Court disqualification doctrine of magistrates – Freedom of expression of judges in favour of the Catalan secessionist movement – Spanish soft law on judicial independence","PeriodicalId":45815,"journal":{"name":"European Constitutional Law Review","volume":"19 1","pages":"271 - 293"},"PeriodicalIF":2.1,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46157878","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-05-05DOI: 10.1017/S1574019623000068
V. Kosta
Elise Muir lets us know early on that her book ‘is less an essay on equality law than an enquiry into the way a supranational organization, such as the EU, develops a fundamental rights policy’.1 Equality law is chosen as the ‘case study’2 from which wider lessons will be drawn.3 Muir puts forward two main arguments in this book which can be summarised as follows: first, creating a fundamental rights policy such as that on equal treatment through legislation based on a distinct legal basis understood as giving specific expression to a fundamental right ‘creates a significant risk of over-constitutionalisation’.4 That means the political debate on the definition of fundamental rights is limited5 because such definition is too closely tied to primary law (the constitutional version of the right). Second, Muir deals with what she calls the ‘governance’ of EU equality law in domestic spheres. She maps the governance ‘infrastructure’ as set up by secondary legislation
{"title":"Investigating Lessons for the EU’s Fundamental Rights Policies","authors":"V. Kosta","doi":"10.1017/S1574019623000068","DOIUrl":"https://doi.org/10.1017/S1574019623000068","url":null,"abstract":"Elise Muir lets us know early on that her book ‘is less an essay on equality law than an enquiry into the way a supranational organization, such as the EU, develops a fundamental rights policy’.1 Equality law is chosen as the ‘case study’2 from which wider lessons will be drawn.3 Muir puts forward two main arguments in this book which can be summarised as follows: first, creating a fundamental rights policy such as that on equal treatment through legislation based on a distinct legal basis understood as giving specific expression to a fundamental right ‘creates a significant risk of over-constitutionalisation’.4 That means the political debate on the definition of fundamental rights is limited5 because such definition is too closely tied to primary law (the constitutional version of the right). Second, Muir deals with what she calls the ‘governance’ of EU equality law in domestic spheres. She maps the governance ‘infrastructure’ as set up by secondary legislation","PeriodicalId":45815,"journal":{"name":"European Constitutional Law Review","volume":"19 1","pages":"371 - 389"},"PeriodicalIF":2.1,"publicationDate":"2023-05-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46907951","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-05-03DOI: 10.1017/S157401962300007X
Alejandro Sánchez Frías
One of the main objectives of the dialogue between the European Court of Justice and national courts and tribunals is, therefore, to ensure the uniform interpretation of EU law among member states. But are there also any uniform criteria regarding what a ‘court or tribunal’ is for the purpose of engaging in a dialogue with the European Court of Justice? Or is the application of Article 267 TFEU left completely to what individual member states label in their national orders as a ‘court or tribunal’? As we shall see in the first part of this study, this problem is not new, but it is clear from the case law of the past six decades that the European Court of Justice
{"title":"A New Presumption for the Autonomous Concept of ‘Court or Tribunal’ in Article 267 TFEU","authors":"Alejandro Sánchez Frías","doi":"10.1017/S157401962300007X","DOIUrl":"https://doi.org/10.1017/S157401962300007X","url":null,"abstract":"One of the main objectives of the dialogue between the European Court of Justice and national courts and tribunals is, therefore, to ensure the uniform interpretation of EU law among member states. But are there also any uniform criteria regarding what a ‘court or tribunal’ is for the purpose of engaging in a dialogue with the European Court of Justice? Or is the application of Article 267 TFEU left completely to what individual member states label in their national orders as a ‘court or tribunal’? As we shall see in the first part of this study, this problem is not new, but it is clear from the case law of the past six decades that the European Court of Justice","PeriodicalId":45815,"journal":{"name":"European Constitutional Law Review","volume":"19 1","pages":"320 - 345"},"PeriodicalIF":2.1,"publicationDate":"2023-05-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44533867","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-04-26DOI: 10.1017/S1574019623000044
U. Kos
Focus of the literature on the European West, overlooking the marginalised European Central-East – Assumption of all illiberal states equally resisting international courts – Hungary’s unique subtle push-back against the European Court of Human Rights compared to overt resistance against the European Court of Justice – Empirical analysis of original data – Three strategies to control the narrative of compliance – Status signalling to avoid international and domestic political repercussions – Friendly settlements and unilateral declarations as means of avoidance – Disguised non-compliance to convey bona fides – Negative narrative to subvert public opinion – Explaining state behaviour through rationalism and constructivism – Complementing constructivism with the identitarian counterwave in recently-emerged illiberal states – EU membership as a constraint – Illiberalism as fuel for Hungary’s resistance against the Strasbourg Court
{"title":"Controlling the Narrative: Hungary’s Post-2010 Strategies of Non-Compliance before the European Court of Human Rights","authors":"U. Kos","doi":"10.1017/S1574019623000044","DOIUrl":"https://doi.org/10.1017/S1574019623000044","url":null,"abstract":"Focus of the literature on the European West, overlooking the marginalised European Central-East – Assumption of all illiberal states equally resisting international courts – Hungary’s unique subtle push-back against the European Court of Human Rights compared to overt resistance against the European Court of Justice – Empirical analysis of original data – Three strategies to control the narrative of compliance – Status signalling to avoid international and domestic political repercussions – Friendly settlements and unilateral declarations as means of avoidance – Disguised non-compliance to convey bona fides – Negative narrative to subvert public opinion – Explaining state behaviour through rationalism and constructivism – Complementing constructivism with the identitarian counterwave in recently-emerged illiberal states – EU membership as a constraint – Illiberalism as fuel for Hungary’s resistance against the Strasbourg Court","PeriodicalId":45815,"journal":{"name":"European Constitutional Law Review","volume":"19 1","pages":"195 - 222"},"PeriodicalIF":2.1,"publicationDate":"2023-04-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48636392","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-04-17DOI: 10.1017/S1574019623000056
Rafael Macía Briedis
is because the substantive principles of democratic constitution-making assumed by his theory can only provide a self-su ffi cient basis for discerning legitimate displays of constituent authority if we already know (beyond the possibility of legitimate contestation) the speci fi c participants and fora of participation that they are supposed to govern – precisely the kind of knowledge that is precluded by the disruption of existing institutional structures. 8 Abstract principles, after all, cannot replace either clear ex-ante rules or, in their absence, concrete ad hoc decisions when it comes to determining the ‘ proper ’ con fi guration of the law-authorising demos, as such principles are not well suited to answer the organisational questions involved in demarcating the boundaries and forms of political participation – where the decision to include or to exclude, especially in ‘ border-line ’ cases, will in the fi nal analysis remain normatively unjusti fi able. Consequently, to speak of a constituent power capable of reaching all the way down into the constitutional foundations of the polity is to situate the con fi gu-ration of the constituent subject beyond the realm of a priori norms, and to place the decision about the precise scope and mechanisms of constituent democracy in the hands of a power that, far from being exercised by a commonly identi fi able demos, is itself de fi nitional of that demos. Which is why I spoke earlier of usur-pation as one of constituent power ’ s characteristic features.
{"title":"Towards an Institutionalist Vision of Constituent Power?","authors":"Rafael Macía Briedis","doi":"10.1017/S1574019623000056","DOIUrl":"https://doi.org/10.1017/S1574019623000056","url":null,"abstract":"is because the substantive principles of democratic constitution-making assumed by his theory can only provide a self-su ffi cient basis for discerning legitimate displays of constituent authority if we already know (beyond the possibility of legitimate contestation) the speci fi c participants and fora of participation that they are supposed to govern – precisely the kind of knowledge that is precluded by the disruption of existing institutional structures. 8 Abstract principles, after all, cannot replace either clear ex-ante rules or, in their absence, concrete ad hoc decisions when it comes to determining the ‘ proper ’ con fi guration of the law-authorising demos, as such principles are not well suited to answer the organisational questions involved in demarcating the boundaries and forms of political participation – where the decision to include or to exclude, especially in ‘ border-line ’ cases, will in the fi nal analysis remain normatively unjusti fi able. Consequently, to speak of a constituent power capable of reaching all the way down into the constitutional foundations of the polity is to situate the con fi gu-ration of the constituent subject beyond the realm of a priori norms, and to place the decision about the precise scope and mechanisms of constituent democracy in the hands of a power that, far from being exercised by a commonly identi fi able demos, is itself de fi nitional of that demos. Which is why I spoke earlier of usur-pation as one of constituent power ’ s characteristic features.","PeriodicalId":45815,"journal":{"name":"European Constitutional Law Review","volume":"19 1","pages":"390 - 414"},"PeriodicalIF":2.1,"publicationDate":"2023-04-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47112343","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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