Suchergebnisse

Overview of the accession process -- Constitutional adaptations in the 'old' member states -- Some idiosyncrasies of CEE constitutions -- Constitutional issues in the pre-accession period -- Revision of CEE constitutions for EU membership -- Theoretical views of sovereignty and democratic legitimacy in CEE -- Referendums -- Membership of NATO and other international organizations -- Role of constitutional courts -- Implications of the European Constitution.

Abstract
Part 1 of this paper (published in the previous issue) documented comparative case law in a number of areas - from the single market to the Data Retention Directive, European Arrest Warrant, ESM Treaty and constitutional review - where constitutional rights and rule of law safeguards have been levelled downwards in the context of imple­mentation of EU law in different Member States. Here, Part 2 of the paper propounds the concept of 'substantive co-operative constitutionalism', exploring how European constitutional law and the European constitutional law discourse could be recalibrated towards a greater responsiveness to substantive constitutional values. Part 2 starts by outlining an increasing shift from the mindset and vocabulary of classic, comparative (continental) European constitutional law, to a more formal, procedural, thin version of EU constitutionalism, where the keywords are supremacy, uniformity, direct effect, autonomy, effectiveness and trust. Indeed in the context of democracy and legitimacy in transnational govern­ance, some scholars have written about the 'erosion', 'twilight' or 'decline' of constitutional­ism or 'the end of constitutionalism as we know it'. More recently, Euro crisis measures have prompted heightened concerns about the prolonged and perhaps even irreversible suspension of constitutionalism, the Rechtsstaat and democracy. Yet in the mainstream EU and transnational constitutional law discourse, such concerns have generally received limited attention. The article traces the reasons for the shift in the paradigm of constitutionalism on the basis of the literature on the epistemology of EU law and of transnational constitutional law, and argues that such a shift is not the only way forward. The paper then proceeds to outline some suggestions on how a more substantive version of co-operative constitutionalism could be operationalised in practice. This includes a significantly more probing and proactive role for the national constitutional courts, supreme courts and national parliaments, as well as the creation of mechanisms in the EU institutional and judicial framework for greater responsiveness to constitutional values and constitutional diversity.

Abstract
This two-part paper seeks to invite discussion on a deeply embedded narrative in the European scholarly and public discourse that reduces the protection of national consti­tutions to Eurosceptic, old-fashioned reluctance to relinquish sovereignty. The paper ar­gues that because of the simplistic 'Eurosceptic'-'Euro-friendly' looking glass, the discourse has broadly been oblivious of, and given scholarly legitimacy to, the erosion of a range of classic constitutional rights and rule of law safeguards in EU law. Part 1 of the paper, docu­menting comparative case law in seven areas, posits an emergence at the EU level of the adoption of measures which, if attempted at national level without the constraints of EU law, would in a significant number of national legal orders prompt constitutional courts to voice serious concerns about core European constitutional values. The case studies start with some past criticisms regarding rights protection in the single market, moving then to EU measures that have affected core constitutional values, such as secret anti-terrorist measures, the Data Retention Directive, the European Arrest Warrant system with its nu­merous Kafkaesque elements, the broader move towards imposition of criminal and ad­ministrative sanctions on the basis of teleological interpretation and without a law, and the ESM Treaty. The paper also queries the reduced access to courts, the changing role of courts and an emerging gap in constitutional review. Against this background, Part 2 of the paper calls for recalibrating the discourse towards 'substantive co-operative constitutional­ism'. The aim is to explore how to better uphold the standards of protection developed by national constitutional and supreme courts for classic, substantive constitutional values, in a context where EU constitutional law has brought about a shift towards a thin, weak, procedural version of constitutionalism, the rule of law and judicial review, with priority given to effectiveness, uniformity, trust and, after Melloni, supremacy over constitutional rights.

During the Banana Saga in the 1990s, several German courts questioned the level of review of EU measures by the EU Courts. This article explores recent direct actions and domestic cases regarding the sugar market in the new Member States, which seem to corroborate the concerns raised during the Banana Saga. The point of departure is a recent judgment of the General Court, upholding the validity of a European Commission Regulation that retroactively imposed a fine on a country for surplus sugar held by private individuals, despite the fact that the Court acknowledged the absence of a textual basis for the Commission's requirement to eliminate private household sugar, and despite the Court's agreement that in practice it had been impossible to eliminate such sugar. The Court upheld the fine on the basis of teleological reasoning. The judgment is contrasted with the case law of post-communist constitutional courts, where in reaction to experiences during the Communist regime, a strong protection has been granted to legal certainty, non-retroactivity and property rights, and it is prohibited to impose obligations or sanctions retroactively or without a statute. It will be suggested that a more rigorous approach to the protection of these rights and principles, which the post-communist constitutional courts regard as the central elements of the rule of law, ought to become part of the EU's "common constitutional traditions".

Abstract. In the framework of the European Neighbourhood Policy, the EU's enlargement conditionality and pre-accession methodology have largely been extended to the new neighbours, with the rule transfer having been characterized as part of the EU's 'external governance'. The absence of accession prospects for these countries at the present stage makes this an intriguing case; the paper consequently seeks to explore the extent to which the EU rules are transferred, with a special focus on Ukraine. The analysis leads to an inquiry into an issue that has been largely missing in the voluminous literature on EU conditionality: the legitimacy of the approximation process from the national constitutional perspective. The paper contends that voluntary approximation of national legislation to external rules presents a novel challenge to the classic constitutional models that have emerged to accommodate international and EU rules within sovereign legal orders, and hence a search for new solutions is warranted.