The Kadi Case: Constitutionalising the Relationship between European Union Law and International Law (original) (raw)
Related papers
Ana Júlia Maurício, 'The Relationship between European Union Law and International Law through the Prism of the Court of Justice’s ETS Judgment: Revisiting Kadi I' (2013) IV(1) King's Student Law Review 66 ‹http://www.kslr.org.uk/home/wp-content/uploads/2012/12/KSLR-V4-I1-1.pdf>
The EU, as an international actor with legal personality, is a subject of international law. It is thus bound by certain international treaties and principles of customary international law. This article attempts to analyse the relationship between EU law and international law in the light of the recent Court of Justice's decision relating to the EU Emissions Trading Scheme, using ETS to revisit Kadi I. It is argued that ETS explained the conditions under which the Court of Justice will assess the validity of EU law in the light of international treaties and principles of customary international law, advancing a dialogic approach to international law. This article suggests that this line of argument differs from the deferential approach to international law applied by the General Court in Kadi I, and that it also differs from the Court of Justice's dualist ruling in Kadi I, which seem to have lacked a much needed mutual engagement at the level of international fundamental rights.
The special issue firstly explores the relationships between national constitutional judges and supranational courts, both the ECJ and the European Court of Human Rights, as grounds of cooperation, competition and sometimes of conflict. In the first section of the special issue, Paris deals with this issue from the perspective of EU Member States’ constitutional courts’ case law on the limits to the primacy of EU law. Through a comparative analysis the author shows that important similarities can be detected in this jurisprudence. Moreover, if constitutional review of EU law is performed by constitutional courts in a cooperative manner vis-à-vis the ECJ and within certain boundaries as for the disapplication of EU law, it can even foster the creation of a European legal space where the protection of fundamental rights and of the rule of law across the Member States and in the EU is enhanced while national peculiarities are preserved. Alessia Cozzi’s essay deals with a hypothesis of silent coordination of the fora of constitutional adjudication. Cozzi investigates decisions of national supreme and constitutional courts that implicitly follow a previous European Court on Human Rights (ECtHR) judgment without explicitly referring to it. Her article aims at understanding in which cases this implicit coordination is performed and why national courts are reluctant to make this approach explicit, hiding a successful coordination and turning a battleground into a meeting ground without emphasizing this transformation. Finally, the third essay of the first section deals with the interesting case study of the Belgian Constitutional Court, placed in a comparative perspective. It raises a problem of general and systematic interest for the identification of a system of constitutional adjudication in the EU and the exploration of its procedures and challenges. This case study is extremely promising, as little research has examined whether constitutional courts employ the same strategies applied domestically, when violations of European and international law occur through legislative omissions. Omissions may be an insidious battleground for national and supranational courts, and Verstraelen’s article demonstrates a versatile approach of Member States’ constitutional courts in order to accommodate the potential fragmentation of national judges’ responses with the need to ensure unity and uniformity of EU law. The second section of the special issue is devoted to test the model of the composite European constitutional adjudication under pressure. The Euro-crisis offered an ideal stress test. Whereas legal analysis on the constitutional dimensions of Euro-crisis abounded, some specific aspects of this picture were overlooked also in those jurisdictions where the Euro-crisis had a remarkable impact. A first underestimated aspect concerns the role played by lower courts, often contradicting supreme and European courts. Pavlidou’s article addresses this vastly overlooked aspect, by examining how domestic lowest courts in Greece safeguarded social rights by resorting to alternative constitutional sources and by indirectly enforcing constitutional provisions in order to constitutionalize social rights. Her essay juxtaposes this practice to the opposite interpretation of austerity measures by the European and Supreme Greek courts. In light of this, she analyzes the implications of this contradictory judicial review both in terms of the scope of social rights and conceptions of unity and diversity within the multiple levels of adjudication. Another vastly overlooked aspect in the Euro-crisis scholarship is the absence of preliminary references to the ECJ for the ‘harmonization’ of social rights adjudication stemming from the same supranational instruments. Constitutional courts were eager to solve cases by invoking solely their own constitutional interpretation and standards. Pierdominici’s article tries to fill this gap in the scholarship, questioning constitutional courts’ reluctant approaches toward preliminary references aimed at guaranteeing (European) standards of protection of social rights. Fasone’s essay is devoted to look at the impact of constitutional adjudication on Euro-crisis measures on the role of legislatures, in this critical conjunction, to ascertain whether common challenges to representative democracy have led to unitary or plural (and divergent) judicial responses to the issues of Parliaments’ displacement in Euro-crisis procedures. In particular, the article investigates in this framework how constitutional courts have resorted to the argument of the national constitutional identity showing that, due to several circumstances, the protection of parliamentary powers and, ultimately, of the principle of representative democracy has been of little concern for most constitutional courts in such a critical juncture. After having tested current trends of constitutional adjudication on the battleground of Euro-crisis measures, the third section of the special issue explores possible procedures and remedies to settle emerging conflicts. In this section, Andrea Edenharter claims that in the long run, a legal reconciliation within the EU can only be achieved if national courts enjoy at least some discretion in cases in which EU law allows for the application of national fundamental rights, because otherwise, national constitutional courts might challenge the ECJ’s role as Supreme Court of the EU and thus damage the project of reconciliation as such. Edenharter’s essay deals with the core problem of the possible existence of a system of constitutional adjudication in the area of fundamental rights review. In this respect, her article analyses two possible legal tools that may facilitate the function of such a system of constitutional adjudication. On the one hand, the margin of appreciation doctrine developed by the ECHR should be adopted by the ECJ. On the other hand, the principle of discretion can also be applied in favor of the ECJ, with national constitutional courts reducing the intensity of scrutiny towards the ECJ in accordance with the German Federal Constitutional Court’s position in Honeywell. Zaccaroni’s paper deals with the need of reconciliation of Member States’ constitutional identities and EU law from a different perspective. His article holds this reconciliation as a necessary assumption to make a system of constitutional adjudication workable in the EU. The essay emphasizes the contribution of some recent decisions of the EU for the identification of the concept of EU constitutional identity. Zaccaroni’s aim is to assess how to reconcile the theoretical position of the ECJ with the one of the national constitutional courts, and in particular, the possibility to reconcile the pluralism of national constitutional identities with the (desired) unity of the EU constitutional identity. His essay investigates two possible solutions: a) a clear theorization of an evolutionary interpretation of the principle of conferred powers; b) a real judicial cooperation between EU and national constitutional judges. In the latter perspective, Zaccaroni claims that constitutional courts should openly recognize the existence of an EU constitutional identity. Additionally, his essay claims that a system of constitutional adjudication would benefit from a mechanism of “reverse” preliminary ruling (from the ECJ to national constitutional courts), when identity-related conflicts are at stake. Finally, the last article of the section investigates the legal and practical obstacles to the full affirmation of the ECJ as a constitutional adjudication forum. Starting with the fact that the ECJ is increasingly emerging and self-identifying as a constitutional Court, Carlo Tovo argues that the revision of the ECJ’s rules of procedure, along with the reform of the General Court, may play a major role in strengthening the constitutional adjudication of the Court’s activity. Tovo explores the new centrality of the preliminary ruling proceedings in the revised rules of procedure of the Court of Justice, in connection with the actual and future delimitation of jurisdiction between the ECJ and the General Court. Then, his article focuses on the procedural arrangements introduced by the revised ECJ Rules of procedures and other sources, aimed at balancing the need to ensure the coherence and uniformity of EU law and to strengthen the ‘constitutional authority’ of the Court. Before the special section on “The View from the Bench”, Gábor Halmai presents some conclusive remarks, providing a critical account of the use of the notion of constitutional identity by Member States’ Supreme and Constitutional courts. This is a key element to grasp the tension between unity and pluralism in the composite system of constitutional adjudication. Halmai argues that while a genuine reference to national identity claims is legitimate insofar as a fundamental national constitutional commitment is at stake, the abuse or misuse of constitutional identity by Constitutional courts “is nothing but constitutional parochialism” that can undermine the whole European constitutional construction and subvert the basic principle of sincere cooperation.
Constitutional adjudication in Europe between unity and pluralism
2018
The special issue firstly explores the relationships between national constitutional judges and supranational courts, both the ECJ and the European Court of Human Rights, as grounds of cooperation, competition and sometimes of conflict. In the first section of the special issue, Paris deals with this issue from the perspective of EU Member States’ constitutional courts’ case law on the limits to the primacy of EU law. Through a comparative analysis the author shows that important similarities can be detected in this jurisprudence. Moreover, if constitutional review of EU law is performed by constitutional courts in a cooperative manner vis-a-vis the ECJ and within certain boundaries as for the disapplication of EU law, it can even foster the creation of a European legal space where the protection of fundamental rights and of the rule of law across the Member States and in the EU is enhanced while national peculiarities are preserved. Alessia Cozzi’s essay deals with a hypothesis of ...
2011
But what exactly are the limits? Does the German Lisbon-judgment with its emphasis on national sovereignty and identity really bind the hands of the government as substantially as to stop any real effort in promoting European integration? At least if read in an appropriate Europe-friendly way it does not necessarily bring the process to an end (Pernice). And if so, there seems to be room for future constitutional developments including not only drafting a laymen's restatement of the Constitution of the EU but also the vision of EU and global constitutionalism in a pluralist multilevel system (Tanchev). It is my honour to express my deepest gratitude to José María Beneyto not only for co-editing this volume but, foremost, for having organised this unforgettable conference at the Institute for European Studies, CEU San Pablo University in Madrid. We all have to thank our assistants Carmen Román Vaca from this Institute as well as Mattias Wendel from the Walter Hallstein Institute for having made possible this conference by their tireless preparatory work, which was doubled because of the volcanic cloud from Iceland intervening at the very date in spring 2010 when all participants were supposed to gather in Madrid but prevented from doing so as all flights had been cancelled. We are grateful to Alfredo Dagnino Guerra, the President of the Foundation CEU San Pablo, for hosting us and to the Spanish Minister of Justice, Francisco Caamaño, for welcoming us at the conference. We also thank Joseph H.H. Weiler, Miguel Poiares Maduro and Christine Kaddous, members of ECLN, and our Spanish guests Juan Manuel de Faramiñán Gilbert and Pablo Antonio Fernández-Sánchez for having enriched the debates with stimulating comments and reports. Our warmest gratitude shall be expressed as well to the President of the hosting Institute, the former EU Commissioner Marcelino Oreja Aguirre, the Secretary of State for the European Union Diego López Garrido, the Rector of the CEU San Pablo University Rafael Sánchez Saus and the Dean of its Faculty of Law Juan Manuel Blanch Nougués, for having given the conference a thoughtful closure and a happy end. This book would not have been published without the patience and diligence of Lars S. Otto who accomplished the 14 CE Cohn-Bendit, 22 décembre 1978, concl. Genevois. 15 D Simon, '"Yes we can" ou comment l' Assemblée du contentieux donne le coup de grâce à une jurisprudence moribonde' (décembre 2009, repère n°11) Revue Europe; R Kovar, 'Le Conseil d'Etat et l'effet direct des directives : la fin d'une longue marche' (janvier 2010, Etude n°1) Revue Europe.
Current trends and perspectives regarding constitutional jurisdiction in the Member States of the EU
The aim of this paper is to contribute to the analysis and development of European constitutional law from the constitutional interaction between the European Union and the Member States. Against the traditional definitions of constitutional jurisdiction, it is now necessary to establish a concept of constitutional jurisdiction that is coherent with the multilevel constitutionalism of the European Union. From these methodological premises, the different models of constitutional jurisdiction in the Eu, their characteristics and their main processes are described and analysed. This comparative analysis shows the asymmetries and differences in constitutional jurisdiction within the European Union, to inform a model of constitutional jurisdiction that is coherent with the different national identities of the Member States but that is adapted to provide the necessary degree of homogeneity for the process of constitutional integration, thus responding to the new needs of the European Union. Thus, the paper discusses the role that the different models of constitutional jurisdiction can or must play in the new European constitutional context.
Zeitschrift für öffentliches Recht, 2007
Constitutional law, supranational law, international law and fundamental rights A. Constitutional law B. Public international law C. Constitutionalisation of international law-towards supranational law? III. The European Convention on Human Rights and European Community Law-from international to constitutional law? A. ECHR as a constitutional structure B. EC-law as a constitutional order C. The relation between EC-law and ECHR IV. The ECHR and EctHR-operationalising constitutionalism through state-responsibility? A. Earlier case-law on relation between ECHR and EC-law: state-responsibility for acts of international organisations B. Bosphorus v. Ireland-developing the principle of state-responsibility V. "Other rules of international law" and EC-law before the EctHR A. Customary international law and the limits of ECHR B. International cooperation as a legitimate interest of states and a basis for judicial deference to international law C. Comparable protection of human rights and manifest deficiencies of human rights protections-the extent and limits of deference? * M.Pol.Sc., LL.M. (Stockholm) DEA. (Brussels), M.Sc., M.Jur. (Oxon) Doctoral candidate, Faculty of Law, Université de Fribourg / LLM. candidate, Harvard Law School. I was the beneficiary of a research-grant from the Swedish Institute for Research in Public International Law and from Harry Ax:son Iohnson Foundation for Legal Research when this article was written. Thanks to Miluse Kindlova (Prague) for comments on an earlier draft. VI. Competition, comity or constitutionalism?-theoretical understandings of the fragmentation of international law A. Competition B. Constitutionalism-international, supranational or domestic? C. Neither constitutionalism, nor competition; the promise and limits of comity D. Concluding remarks Keywords: Constitutionalisation of public international law; fundamental rights; comity; proportionality; ECHR; ECJ; additional protocol 1 art 1 ECHR; treaty-law; ECHR as a constitutional order; EC/EU as a constitutional order; Vienna convention on the law of treaties.
The Court of Justice of the European Union and International Legal Order
Russian Law Journal
This kind of research seems important because of the gap in the theory of international law caused by the immutable dogma of the supremacy of international law. However, modern legal practice demonstrates a certain fragmentation of the international legal order because of the impact of the existence and development of regional supranational legal orders. The EU legal order, with its own special nature (sui generis), is undoubtedly one of the most developed among them.
Europe in Changes: The Old Continent at a New Crossroads, 2021
The principle of the supremacy of EU law over national legislation is crucial for the viability of the Union's legal order, but also for the safeguard of some basic democratic values within the Member States themselves. Despite its global acceptance, some national courts of final instance keep challenging this principle, invoking complex reasoning that often includes multiple grounds for its refusal. Using mainly a content analysis of the case-law and comparative legal method, the paper examines the possibility of a new balance between the principle of the supremacy of EU law and the specificities of national legal orders. The preconditions for striking this new balance are threefold. First, the national courts should apply the concept of constitutional identity more carefully and in a more restrictive manner. Second, the EU law itself has to be formulated in better and clearer terms, as a result of a less cumbersome legislative process. Finally, without a less hesitant common approach of the European political elites in reforming its functioning, the weaknesses of the Union's institutional and decision-making architecture would continue to undermine its legal system.
Revista de la Universidad del Zulia
The objective of this article is to analyze the concept of constitutional pluralism as a methodological basis for the construction of the legal system of the European Union. In particular, attention is paid to investigating the particularities of the interaction and operation of the different constitutional legal systems within the legal sphere of the European Union, studying the constitutional collisions derived from the interaction of European Union law and the law national of the Member States. Dialectical, comparative legal, historical, systemic-structural and formal dogmatic methods were used in the research. The article concluded that the national constitutional courts of the Member States of the European Union can give priority to their constitutional rules only if those rules are clear and reflect substantial constitutional obligations. However, in any case, in order to maintain the coherence of the legislation of the European Union and the national legislation of the Member...