Constitutional pluralism has become immensely popular among scholars who study European integration and issues of global governance. Some of them believe that constitutionalism, traditionally thought to be bound to a nation state, can emerge beyond state borders - most importantly in the process of European integration, but also beyond that, for example, in international regulatory regimes such as the WTO, or international systems of fundamental rights protection, such as the European Convention. At the same time, the idea of constitutional pluralism has not gone unchallenged. Some have questioned its compatibility with the very nature of law and the values which law brings to constitutionalism. The critiques have come from both sides: from those who believe in the 'traditional' European constitutionalism based on a hierarchically superior authority of the European Union as well as from scholars focusing on constitutions of particular states. The book collects contributions taking opposing perspectives on constitutional pluralism - some defending and promoting the concept of constitutional pluralism, some criticising and opposing it. While some authors can be called 'the founding fathers of constitutional pluralism', others are young academics who have recently entered the field. Together they offer fresh perspectives on both theoretical and practical aspects of constitutional pluralism, enriching our existing understanding of the concept in current scholarship.

click here for publisher's site

click here for full text via Hein Online [ON CAMPUS]
click here for full text via Hein Online [OFF CAMPUS]

The article discusses the decision of the Czech Constitutional Court, which declared a previous ruling of the ECJ ultra vires. It suggests that rather than being a declaration of (judicial) independence from the principle of primacy, the Czech Court's decision was an unmeasured and poorly-reasoned response to a domestic conflict between the Constitutional and Supreme Administrative Court.

click here for full text via CUP [ON CAMPUS]
click here for full text via CUP [OFF CAMPUS]

What does it mean for a supreme court to “make law”? When is it possible to say that its decisions are “precedents?” To what extent should a supreme court’s pronouncements be taken into account by others – lower courts and political branches? And how should these other actors reason with such precedents? This article shows how a particular approach to judicial lawmaking and precedent shapes answers to these questions and examines them in relation to the US Supreme Court and the French Cour de cassation. The findings are then used for a critical analysis of the European Court of Justice’s case law. It is suggested that while the US and French systems have found some ways of reconciling judicial lawmaking with the basic premises of their constitutional and political systems (although they are not entirely satisfactory), the EU system is still waiting for a satisfactory account of the Court’s lawmaking and precedent. The concluding part indicates directions of possible further research, which would address the problems encountered by the Court’s case law.

Mitchel Lasser’s Judicial Deliberations compares the argumentative practices of the French Cour de cassation, the US Supreme Court, and the European Court of Justice, and examines how they achieve judicial legitimacy. In this review I firstly question the models of judicial legitimacy presented by Lasser. I believe that the French ‘institutional’ model relies far more on the interplay between the Cour de cassation and the legislature than on the system of selection of those who take part in the judicial discourse or on their conception of law which would deny judicial decision a place among the sources of law. I also have doubts about the lack of institutional means of judicial control and the emphasis on ‘argumentative transparency,’ which lies at the core of Lasser’s presentation of the US system. Finally the Court of Justice, somewhat included rather as an afterthought in the book’s central analysis, in my opinion faces rather different problems from those identified in the book. Secondly, I discuss a deeper problem of Judicial Deliberations: its lack of conceptual clarity and the rather scant evidence it provides for some of its bold claims. In conclusion I make the case for a ‘comparative jurisprudence’ approach, suggested some time ago by William Ewald, which in my view Judicial Deliberations follows only in name.

click here for full text via OUP [ON CAMPUS]
click here for full text via OUP [OFF CAMPUS]

The article advocates limitation of national lower courts’ power to send preliminary references according to Article 234 of the EC Treaty. It shows that many arguments against this are not sufficiently thought out and are used rather mechanically. It proposes the following: 1. Limiting preliminary ruling procedure to courts of last instance as a rule; 2. As a necessary exception to 1, when a lower court considers that one or more arguments for invalidity, put forward by the parties or as the case may be raised by it of its own motion, are well founded, it must stay proceedings and make a reference to the Court for a preliminary ruling on the act’s validity; 3. As a possible exception to 1, the Council can decide which EU law measures may be subject to preliminary references from lower courts. The proposal sees national judicial hierarchy as an important element of the Union judicial process, which can make the preliminary ruling procedure rational and effective, while keeping its original purpose. At the same time it suggests some measures that strike the balance between judicial protection of individuals and effectiveness. The key idea behind the proposal is the need for more trust in national courts, if they are to be truly considered as Union courts.

click here for access via Westlaw [ON CAMPUS]
click here for access via Westlaw [OFF CAMPUS]

The article examines decisions of the Polish Constitutional Tribunal and the German Federal Constitutional Court, which both annulled national implementation of the EAW Framework Decision, and contrasts them with the decision of the Czech Constitutional Court that upheld it. The decisions are put into the context of “contrapunctual law principles” designed by Miguel Poiares Maduro to guide national courts when applying EU law. This serves a twofold aim: firstly to show that although the outcome of the Polish and German Courts’ decisions was the same, each court took a fundamentally different approach in reaching its conclusion. Secondly, the article discusses limitations of “contrapunctual law principles” that correspond to the limits of legal interpretation and reasoning. Mattias Kumm’s principle of best fit and his analysis of constitutional conflict help to find reasons supporting this contention, although it is questioned with insights from general jurisprudence. The article highlights the importance of institutional choice amongst various processes - the judicial and political.

click here for full text via Swetwise [ON CAMPUS]
click here for full text via Swetwise [OFF CAMPUS]

Discusses the traces of hierarchisation in the EU judicial system, in the light of three decisions delivered by the Court of Justice at the turn of the year 2003 - Köbler, Kühne & Heitz and Commission v. Italy. By these decisions the ECJ implemented into the judicial system a kind of appeal and supported authority of its judgments by a sanction of liability in case of their not following by national supreme courts. The ECJ has made its judgments similar to precedents in federal judicial systems. The article however also shows some weaknesses of thus created system.

click here for full text via Swetwise [ON CAMPUS]
click here for full text via Swetwise [OFF CAMPUS]

The article comments on a judgment of the European Court of Justice in Case C-305/05, Ordre des barreaux francophones and germanophone & Others v Conseil des Ministres, where the Court reviewed the legality of the obligation to inform and cooperate with competent authorities, which is imposed on the legal profession by Directive 91/308/EEC (the 1991 Directive) in respect of money laundering. The case comment is divided into four sections. First, it gives a brief comparison of the scope of LPP provided by the English courts and by the ECJ’s previous case law. Secondly, the context of the case is set out. Thirdly, it examines a particular problem that arose in the case, namely that too narrow a question was referred to the ECJ by the Belgian court. Because of this the ECJ was able to limit its review of the 1991 Directive’s legality to its compatibility with LPP in light of the right to a fair trial and the respect of rights of defence. As a necessary corollary the ECJ did not examine other aspects of the rationale which underlies LPP i.e., that it protects rights, such as the right to privacy and serves to fulfil a number of different aims i.e., better administration of justice or compliance with law. As a consequence the ECJ has left the exact scope of LPP in the EU ambiguous. This could lead to further difficulties, since it is not clear whether e.g. United Kingdom’s implementation of the Directive is compatible with its requirements.

click here for access via Westlaw [ON CAMPUS]
click here for access via Westlaw [OFF CAMPUS]

On the basis of Case C-508/03, Commission v. United Kingdom, this article shows some problems brought by an infringement procedure, concerning a particular case of misapplication of EC law by Member State’s public authorities. Firstly, some individuals can benefit from the infringement. How is their legal position affected by the ECJ’s judgment? Secondly, is it appropriate for the Commission to bring the action to the ECJ before the case has been finally settled on the national level? Thirdly, are these individuals properly represented before the Court?

click here for full text

What is constitutional pluralism? What does it stand for? What does it want to achieve, contribute, or change in the European integration? Is it a viable, desirable or perhaps even an indispensable theoretical take on it? These were the leading questions discussed in the Symposium “Four Visions of Constitutional Pluralism” at the European University Institute in January of this year. Within the framework of the Legal Theory Working Group and under the auspices of the Academy of European Law, the organizers, Matej Avbelj and Jan Komarek, hosted four key scholars from the field of the EU legal and constitutional theory. Julio Baquero Cruz, Mattias Kumm, Miguel Poiares Maduro, and Neil Walker engaged in a groundbreaking three-hour discussion of their respective theoretical visions of the European integration. This working paper contains a full transcript of the Symposium.

click here for the symposium transcript in full