Suchergebnisse

This article explores the conception of law that underlies the case law of the Court of Justice of the European Union (CJEU), building on Opinion 2/13 on EU accession to the European Convention on Human Rights (ECHR) as a topical example. Joxerramon Bengoetxea's metaphor of the CJEU being a 'Dworkinian court' fails to explain fundamental aspects of the Court's case law which are incompatible with Dworkin's theory of law. Instead, the CJEU is committed to an EU legal system which conforms to Joseph Raz's theory of the necessary conditions for legal systems: comprehensiveness, openness and a claim of supremacy. Within this paradigm, the supremacy claim of EU law is in need of demystification because it is inherent to any legal system. Paradoxically, while Opinion 2/13 suggests that the EU should be given special treatment in its accession to the ECHR, the Court's underlying conception of the EU legal system is essentially mimetic of the typical characteristics of national legal systems. This mimetic nature of the EU legal system entails a dissociation between the political and the legal nature of the EU: while the EU is certainly not a state, its legal system is no different from national legal systems.

The practical effects of the principle of primacy of EU law are well established in the case law of the Court of Justice of the European Union (CJEU). However, the highest national courts have had difficulties in coming to terms with the principle. Does the primacy of EU law also entail the 'supremacy' of EU law, and what is the significance of this for national sovereignty? There seems to be no coherence in the academic discussion on how to use the terms primacy and supremacy and what they actually entail. This article presents a reconceptualization of the way in which the terms primacy and supremacy could be understood in EU law. It is argued that they are two distinct concepts: primacy refers to actual conflicts between a national norm and an EU norm in situations concerning individual rights, whereas supremacy refers to the structural relation between the EU's and the Member States' legal orders that manifests itself as institutional conflicts of competence. This article maps out the primacy–supremacy debate, assesses the proposed conceptualization in light of recent European and national case law, and positions the argument in relation to constitutional pluralism, the leading theory of European constitutionalism.

The practical effects of the principle of primacy of EU law are well established in the case law of the Court of Justice of the European Union (CJEU). However, the highest national courts have had difficulties in coming to terms with the principle. Does the primacy of EU law also entail the 'supremacy' of EU law, and what is the significance of this for national sovereignty? There seems to be no coherence in the academic discussion on how to use the terms primacy and supremacy and what they actually entail. This article presents a reconceptualization of the way in which the terms primacy and supremacy could be understood in EU law. It is argued that they are two distinct concepts: primacy refers to actual conflicts between a national norm and an EU norm in situations concerning individual rights, whereas supremacy refers to the structural relation between the EU's and the Member States' legal orders that manifests itself as institutional conflicts of competence. This article maps out the primacy–supremacy debate, assesses the proposed conceptualization in light of recent European and national case law, and positions the argument in relation to constitutional pluralism, the leading theory of European constitutionalism.
primacy, supremacy, sovereignty, constitutional pluralism, Court of Justice, national courts, comparative constitutionalism, EU law, European integration

Intro -- Ius Doni in International Law and EU Law -- Copyright -- Contents -- List of Abbreviations -- List of Tables -- Table of Cases -- Introduction -- 1 Key Questions -- 2 Structure of the Monograph -- 1 Key Contours of Citizenship and Ius Doni -- 1.1 Citizenship Framework and Development -- 1.1.1 Citizenship and State Sovereignty -- 1.1.2 Citizenship in Ancient Greece and Rome -- 1.1.3 Citizenship from the Middle Ages to Modern History -- 1.1.4 Citizenship in the XXth and XXIst Centuries -- 1.2 Ius Doni and Citizenship Realities -- 1.2.1 Citizenship Requirements -- 1.2.2 Facilitated Naturalisation -- 1.2.3 Ius Doni and Other Forms of Naturalisation -- 1.2.4 Ius Doni and Inequalities -- 1.3 Conclusions to Chapter 1 -- 2 Ius Doni in International Law -- 2.1 Rules and Limitations of International law -- 2.1.1 Citizenship and Non-discrimination -- 2.1.2 Right to Citizenship -- 2.1.3 Statelessness in Practice -- 2.1.4 Mass Conferral of Citizenship -- 2.2 Dual Nationality and Residence -- 2.2.1 Dual Citizenship: from Resistance to Acceptance -- 2.2.2 Diplomatic and Consular Protection -- 2.2.3 Genuine Link and Acquisition of Citizenship -- 2.2.4 Residence and Ius Doni -- 2.3 Conclusions to Chapter 2 -- 3 Ius Doni in EU Law -- 3.1 Supranational Cooperation and Citizenship beyond the Nation-State -- 3.1.1 The New Legal Order -- 3.1.2 EU Citizenship -- 3.1.3 Discretion of Member States in Citizenship Matters -- 3.1.4 Rights of EU Citizens -- 3.2 Solidarity and Loyal Cooperation -- 3.2.1 Article 4(3) TEU -- 3.2.2 The Maltese Matter: Article 4(3) in Practice? -- 3.2.3 Genuine Link and Sincere Cooperation -- 3.2.4 Ius Doni and Mass Conferral of Citizenship -- 3.3 Conclusions to Chapter 3 -- 4 Ius Doni: Procedures and Practices -- 4.1 Justification and Procedures -- 4.1.1 The Economic Imperative -- 4.1.2 Requirements of Citizenship and Residence Programs.