Suchergebnisse

This book offers one of the rare empirical studies on the different meanings of proportionality as part of a global constitutional discourse. It develops and applies a theoretically informed comparative methodology for the study of differences in the use of legal transfers. Beyond the transplant versus culture controversy, it enriches our understanding of the relationship between law and its social context. Beyond the common law and civil law cleavage, it provides an in-depth comparison of French, English and Greek judicial review, rendering some core features of these systems accessible to non-initiated readers. The last part of the book provides insights as to the different visions of Europe underlying different phases of European integration and thus enriches our understanding of the process of integration through law.

This article discusses the SM decision of the European Court of Justice, concerning the right of entry and residence in the host member state of children raised by European citizens under the Algerian kafala. This case is not only about the right to respect for family life and the best interests of the child. It raises other important issues as well, such as the issue of communication and translation between different legal cultures in the field of family law, as well as the issue of the limits of the rights and freedoms attached to the status of European citizenship. In the particular context of Brexit, the case also sheds light on the on-going ideological struggle within British institutions concerning the place of Europe and European law.

In this article, it is proposed to take the differences in the practice of EU law seriously. The aim is not to construct a 'correct' content of European legal rules, concepts and methods, which would be different from their content in the legal practices studied, neither to discover the economic and political interests 'hidden' behind the use of EU legal arguments. The local practices of EU law are studied in their own discursive and cultural context. Their interpretation gives us important information on the legal cultures in which these practices evolve, but also on EU law and EU integration. The proposed approach is exemplified through the narration of the story of purposive interpretation in the common law. This technique, typical of Continental systems and of the case law of the ECJ, was long rejected in the common law as a prohibited trespassing of the limits of judicial competence. Its reception under the influence of European law has been the vector of a significant transformation of the common law into a rational legal order based on substantive values. While this proves that convergence between European legal systems is possible, it also shows that this convergence does not necessary imply the advancement of socio-political integration in Europe. Once received in the common law, the technique of purposive interpretation is reinvented to serve common lawyers' goals, which do not always coincide with those of European institutions and of the ECJ.

La proportionnalité a progressivement pris une place centrale dans l'imaginaire juridique. Initialement conçue comme un principe régissant l'utilisation des pouvoirs de police, elle est aujourd'hui considérée comme un outil avancé de science constitutionnelle. Sa généralisation, accompagnée par le paradigme du droit constitutionnel global, est perçue comme irrésistible et naturelle. Cette recherche a été guidée par l'intuition que, même si les juristes à travers le monde raisonnent de plus en plus en termes de proportionnalité, celle-ci peut avoir des sens très différents, et ce, même au sein d'un seul système juridique. Les différentes utilisations du langage de la proportionnalité sont rarement étudiées en tant que telles. Pour autant, l'identification des sens locaux de la proportionnalité est cruciale si l'on veut comprendre sa propagation, apprécier son succès et évaluer les possibilités de convergence entre systèmes juridiques. Ce travail consiste en une étude approfondie et comparative de l'utilisation du langage de la proportionnalité parmi les acteurs juridiques en France, en Angleterre et en Grèce. Il cherche à montrer que les sens locaux de la proportionnalité ne sont pas simplement des applications imparfaites d'un modèle global. Au contraire, ils reflètent les cultures au sein desquelles ils évoluent, des chemins d'évolution culturelle propres à chaque système et des trajectoires locales d'européanisation.

It is often said that proportionality is a method of ad hoc judicial reasoning. Close attention to practice however, exposes this vision as too simplistic. The content of proportionality is very different across jurisdictions, even in the application of the same legal text, and the role of concrete cases in judicial reasoning varies considerably. The purpose of this article is to illustrate this through a study of the reasoning of the French Council of State and of the European Court of Human Rights in the field of the Convention. The study of French and European proportionality case law reveals that different versions of proportionality involve different kinds of case-based reasoning, in which the case has a more or less normative function. The article suggests that this is connected to the local meanings of proportionality and of human rights in French law and in the Convention.

The legal story of the Eurozone crisis is by now well known. Most commentators have focused on the impact of the crisis on the organisation of the European Union. However, the dominant Eurocentric discourse has neglected the important changes brought about by the crisis in the constitutions of 'weak' Member States—those who have received financial assistance. Domestic scholars are typically unable to offer a coherent account, let alone justification, of these transformations from a constitutional law point of view. Outside the domestic sphere, constitutional change within 'crisis-hit' countries has not attracted enough attention; it is considered not to be the problem, but rather the solution or an inevitable side-effect of the European developments. Still, it is precisely these 'weak' states that form exemplary cases for the study of how economic emergency and European integration operate in the domestic sphere of liberal constitutional democracies. The purpose of this paper is to shed some light on this 'dark side' of the Eurocrisis, through the study of a particular, albeit exemplary, national case: Greece. How was the Greek Constitution deconstructed by legal means? How do domestic actors justify the significant constitutional-political changes brought about by the Eurocrisis? How can we observe the loss of faith in the Greek Constitution?

This paper was first delivered at a conference held at the European University Institute in October 2014 presenting some initial results of the project on Constitutional Change through Euro Crisis Law. ; Most constitutions foresee a 'state of emergency' associated with the existence of an armed conflict. Paradoxically, modern societies seem to be permanently confronted with genuine emergencies increasingly removed from the threat of actual, physical violence. The Eurozone crisis can be said to have accentuated this, as the immense pressures from financial markets have turned the control of public finances into a struggle for the survival of the affected States. The present paper explores the legal manifestations of emergency in the domestic law of Greece, Italy, Spain and Ireland. These countries have all been hit by the Eurozone crisis (albeit in different manners) and have had to accommodate external oversight in their crisis management. The adoption of emergency measures for tackling the economic upheavals has been diverse across the case studies, although all have in common the emergence of a prominent role for the executive in the aftermath of the Eurozone crisis.