Suchergebnisse

Editorial note: Monica Claes, Professor of European and Comparative Constitutional Law at the Law Faculty of Maastricht University

This article places the Gauweiler reference in a broader comparative perspective, in two distinct ways. First, it offers a comparative analysis of the positions of other constitutional courts on the primacy of EU and national constitutional reservations, in order to test the allegation of the German Federal Constitutional Court (Bundesverfassungsgericht; FCC) that its position on ultra vires and identity review is widely shared among constitutional courts in the European Union. The analysis demonstrates that the position of the German court is much more isolated than it wants us, and the Court of Justice to believe. Secondly, the article reflects on the so far very limited participation of constitutional courts in the preliminary reference procedure, and commends the FCC for making a reference in this case, as it is the only procedural channel available for the much wanted dialogue (for want of a better word) between constitutional courts and the Court of Justice.

PART 1: The National Courts as Common Courts of European Law -- 1 Introduction -- 2 Before the West was Won: A Touch of Legal Archaeology -- 3 The Creation of a Community Mandate for National Courts -- 4 The Duty to Review National Law: the 'Simmenthal Mandate' -- 5 Refining the Mandate: Second Generation Issues -- 6 The 'Simmenthal Mandate' Embraced -- 7 About Legal Orders -- 8 The Constitutional Limits of the Judicial Function -- 9 Explaining Acceptance -- 10 Excursion: The 'Costanzo Mandate' of Administrative Authorities -- 11 The 'Francovich Mandate': Jurisdiction to Hold the State Liable for Breach of Community Law -- PART 2: The Court of Justice and National Constitutional Jurisdictions: La Guerre des Juges? -- 12 Introduction -- 13 Introducing the Actors: 'Courts Having Constitutional Jurisdiction' -- 14 La Guerre des Juges? -- 15 Prior Review of the Constitutionality of Treaties -- 16 A Posteriori Constitutional Review of the Treaties -- 17 Preventive Constitutional Review of the Constitutionality of Secondary Law -- 18 Judicial Review of Secondary European Union Law by National Courts? -- PART 3: The National Courts' Mandate and the Future of the European Union -- 19 Introduction -- 20 Towards a European Constitution -- 21 The Principle of Supremacy -- 22 Incorporation of the National Courts' Mandate? -- 23 Fundamental Rights -- 24 Kompetenz Kompetenz -- 25 Conclusion