Suchergebnisse

With a focus on how national identity impacts the decision-making of the European Court of Justice (ECJ), Elke Cloots provides an innovative adjudication scheme that purports to assist the ECJ in its search for a proper balance between respect for national identity and European integration.

Introduction : Federalism's Janus face / Elke Cloots, Geert De Baere and Stefan Sottiaux -- EU federalism in 3-D / Koen Lenaerts -- Federalism and jurisdiction / Pavlos Eleftheriadis -- Federalism, the EU and international law : on the possible (and necessary) role of subsidiarity in legitimate multilevel trade governance / Alexia Herwig -- The Court of Justice as a federal constitutional court : a comparative perspective / Monica Claes and Maartje de Visser -- The dual system of rights protection in the European Union in light of US federalism / Aida Torres Perez -- Federalism and international relations in the European Union and the United States : a comparative outlook / Geert De Baere and Kathleen Gutman -- European ties that bind : political or cultural? / Helder De Schutter -- Does EU decision-making take into account regional interests? / Piet Van Nuffel -- The role of sub-state entities in the EU decision-making processes : a comparative constitutional law approach / Nikos Skoutaris -- Autonomous constitutional regions in a federal Europe / Joxerramon Bengoetxea -- The European Court of Justice and the devolution of taxation powers / Suzanne Kingston -- The impact of EU law on the devolution of social powers in the member states / Herwig Verschueren -- EU law and language regulation in (quasi-) federal member states / Elke Cloots and Stefan Sottiaux -- The European Court of Justice and member state federalism : balancing or categorisation? / Elke Cloots -- The impact of "regional blindness" on the Italian regional state / Giuseppe Martinico -- The Spanish state structure and EU law : the view of the Spanish consitutional court / Maite Zelaia Garagarza -- Economic and monetary union : caught between Brussels and Luxembourg? The influence of EU law on Belgian federalism case law / Stef Feyen.

It is commonplace in European constitutional practice and theory to use the terms 'national identity' and 'constitutional identity' interchangeably. On the one hand, several Advocates General to the European Court of Justice have employed the concept of 'constitutional identity' to delineate what is protected under Article 4(2) TEU, even though, strictly speaking that Treaty provision refers to the Member States' national identities, inherent in their fundamental structures. On the other hand, certain domestic constitutional courts which present themselves as the ultimate defenders of the identity of their constitution have pointed to Article 4(2) TEU to legitimate their assumed power to review secondary EU law against their constitutional identity. Against this background, it should not be a surprise that, also in academic commentary, there is a strong tendency to equate national with constitutional identity. This article swims against the tide. It defies the conflation of national and constitutional identity prevalent in European constitutionalism. To this end, it makes three central points. First, it is submitted that the said conflation is not founded on a solid theory of legal interpretation. Second, this paper advances the argument that the obligation to respect the national identities of the Member States, as enshrined in Article 4(2) TEU, rests on different normative assumptions than the claim, made by certain constitutional courts, that European law must comply with constitutional identity for it to be applicable in the domestic legal order. Whereas the Union's obligation to pay heed to national identity is grounded in a liberal concern for the respectful treatment of the members of a multinational political community, the constitutional courts' preoccupation with constitutional identity rests on a particular conception of sovereignty. In other words, the demands for respect for national and constitutional identity are informed by distinct theoretical narratives. Third, it is argued that the Treaty makers had good reasons for writing into the EU Treaty a requirement of respect for the Member States' national identities rather than the States' sovereignty, or their constitutional identity, for that matter. The Treaties' focus on national identity should therefore be embraced and taken seriously.

The relationship between Europe's legal orders is frequently depicted in terms of "constitutional pluralism". Constitutional pluralists maintain that the EU legal order and the legal orders of the Member States are distinct but interacting, and that they stand in a non-hierarchical relation to one another, allowing regional autonomy. The significance of the pluralist theoretical perspective for judicial adjudication, however, has not been sufficiently assessed. For instance, does constitutional pluralism accommodate or, rather, oppose the supremacy claims currently made by the ECJ and national constitutional courts respectively? And, in the latter case, what alternative decision-making techniques are available to courts facing constitutional issues with an aspect of EU law? What are the consequences for protection of nationally entrenched fundamental rights? Those are the major questions being addressed in this article. Building upon a detailed analysis of three preliminary ruling procedures initiated by the Belgian Constitutional Court, this article purports to formulate some general recommendations to judges who wish to adjudicate in a truly "pluralist" manner. The cases at issue are Advocaten voor de Wereld, Ordre des barreaux francophones et germanophone et al., and Government of the French Community and Walloon Government v. Flemish Government, each of which contains germs of pluralist judicial adjudication.