论合宪性解释方法

虽然合宪性解释方法在概念上会存在些许差别,但其所遵循的合宪性推定逻辑是相通的,即都体现了司法权对立法权的谦抑。合宪性解释方法中所含括的单纯解释规则,如果不与冲突规则在学理上加以区分,则很容易对合宪性解释产生认识上的偏差。目前合宪性解释方法所模本的欧陆经验,从源流上来说,最早其实可溯及至早期美国合宪性推定的理论与实践,并与回避宪法方法一脉相承。通过合宪性推定可以发现,合宪性解释方法可以从宪法方法与法律方法两个层面展开。把握其内在理路及权力逻辑,方可使其具有本土可能性。     

The Evolving Judicial Politics of European Integration: The European Court of Justice and national courts revisited

This article analyzes how the judicial politics sparked by the European Union's (EU) legal development have evolved over time. Existing studies have traced how lower national courts began cooperating with the European Court of Justice (ECJ) to apply EU law because this empowered them to challenge government policies and the decisions of their domestic judicial superiors. We argue that the institutional dynamics identified by this ‘judicial empowerment thesis’ proved self‐eroding over time, incentivizing domestic high courts to reassert control over national judicial hierarchies and to influence the development EU law in ways that were also encouraged by the ECJ. We support our argument by combining an analysis of a dataset of cases referred to the ECJ with comparative case study and interview evidence. We conclude that while these evolving judicial politics signal the institutional maturation of the EU legal order, they also risk weakening the decentralized enforcement of European law.     

Judicial empowerment expanded: Political determinants of national courts' cooperation with the CJEU

Scholars in EU studies have developed diverse justifications for explaining why national judges cooperate with the Court of Justice of the European Union. In this regard, judicial empowerment theories have stressed the strategic importance of cooperation for empowering national courts vis‐à‐vis high courts and political actors. Nevertheless, these explanations have been restricted to the use of preliminary references by lower courts. This contribution expands the explanatory power of these approaches by exploring other potential scenarios and instruments that national judges can use to challenge the position of their governments and judicial superiors, for example, by emphasising the importance of CJEU precedent for their strategic behaviour. By offering new data collected from case‐law and surveys, this article offers a more systematic assessment of the relevance of cooperation for national judges to reinforce their authority against other institutions. The findings call for a revision of the traditional understanding of judicial empowerment theories.     

Effet utile and the (re)organisation of national judiciaries: A not so unique institutional response to a uniquely important challenge?

The current repurposing of the principle of effet utile of European Union law can be found in the revolutionary steps taken by the Court of Justice in its application of Article 19 TEU. The implicit goal of this recent body of case-law is to equip national judges with the tools to resist domestic judicial reforms that affect their freedom to adjudicate independently. Considering Simmenthal to Unibet, Associação Sindical dos Juízes Portugueses to the latest case-law relating to the organisation of national judiciaries, this article contends that, while the case-law on judicial independence is unprecedented, the Court of Justice has gone to great lengths to ensure that the developments in EU law precipitated by its rulings are grounded in established doctrine. They follow a line of case-law that builds on the principle of primacy of EU law and the obligation to guarantee the effectiveness of EU law in the domestic legal order. Further, the current trajectory is for Article 19 TEU to form the operational basis of review of any judicially minded reforms, whether they be organisational (Article 19 TEU, together with Article 47 CFREU), limit actually or potentially the freedom for dialogue between national courts and the Court of Justice (Article 19 TEU together with Article 267 TFEU and Article 47 CFREU) or where they reduce the protection of the value of the rule of law (Article 19 TEU, Article 2 TEU, Article 49 TEU and Article 47 CFREU), with potential implications for the effective application in EU law of the principle of mutual trust.     

The EPO as patent law‐maker in Europe

This article examines the role of the European Patent Organisation (EPO) in the European patent system. It shows how the delineation of European patent law has been handed over by governments to an autonomous, quasi‐judicial technocracy at the EPO and reveals how the process of hollowing out economic and political factors in the grant of patents is assisted by the deference of national courts to the EPO and the creation of the Unified Patent Court. It suggests that these developments pose a threat to democratic governance of the patent system in Europe because the delineation of intellectual property rights has inherent economic and political dimensions which are not reducible to technical legal issues of interpretation or technocratic expertise.     

The European Commission's Own ‘Preliminary Reference Procedure’ in Competition Cases?

This article considers the implications of the European Commission, as primary administrative enforcer of competition law in the Union, using its own ‘preliminary reference procedure’, through observations in national court proceedings under Council Regulation 1/2003, to minimise the risks of divergent application of EU anti‐trust rules under the decentralised system of enforcement ushered in by that Regulation. It sets the scene with the relationship between the European Commission and national courts in competition law, before describing the relevant provisions of the Regulation and its accompanying Courts Notice. It then discusses the legal nature of the Commission opinion as a Union instrument. Identifying cases where the Commission has offered observations, it assesses the implications of administrative intervention in judicial decision making. It finds that greater transparency is crucial for legitimacy, legal certainty and maximum impact on consistent application.     

The Justiciability of Resource Allocation

A perennial problem in public law is how courts ought to deal with legal challenges to the allocation of public resources. This article explains and renders more coherent the varied approaches of English courts to the justiciability of resource allocation disputes in administrative and tort law. It draws a distinction between 'discretionary allocative decision-making' and 'allocative impact.' The non-justiciability doctrine in R v Cambridge Health Authority , ex p B is concerned with the former only. By contrast, allocative impact is a justiciable matter, but can still ultimately defeat a claim. This distinction, however, does not guide judicial approaches under the Human Rights Act 1998, where courts have chosen mostly to eschew the non-justiciability doctrine in favour of more flexibly applied notions of judicial deference. Thus while the non-justiciability doctrine has a relatively narrow scope in administrative and tort law, it has nearly disappeared under human rights law.     

Judicial Responses to Bright Line Rules in Social Security: In Search of Principle

This article considers judicial responses to the use of 'bright line' rules in social security law. It analyses, within the framework of judicial deference, the receptiveness of the judiciary to an argument by the executive that a rule is justified as being administratively convenient to operate. The article questions the proposition that the judiciary is at its most deferential when complex issues of socio-economic policy or resource allocation are raised in the context of social security law. A contrast is drawn between cases involving an issue of statutory interpretation and those applying a proportionality test. The article tests the presumption that a difference in approach should be discernable in these two situations. It concludes by criticising the courts for failing to articulate clearly the values at stake and by arguing for the need for greater transparency and a broader public debate concerning the use of bright line rules.     

The Impact of Training and Language Competence on Judicial Application of EU Law in Hungary

The aim of this research is to identify the role that training in EU law and in a foreign language play in the use of EU law by Hungarian judges in domestic proceedings. Judges in the new Member States face the problems of no or inadequate official EU translations of relevant EU law or case‐law. The need to compare the meaning of other language versions therefore comes into play in order that the judges comply with the requirements of Union loyalty in the Treaty on European Union: Hungarian judges are shown to exhibit certain creative responses to these challenges. The approach to the research is based on an examination of the institutional framework for judicial training, a selection of pertinent case‐law of the Hungarian courts as well as interviews with a number of judges involved in the application of EU law in their courts.     

Independence of the Court of Justice of the European Union: Unchecked Member States power after the Sharpston Affair

The Court of Justice of the European Union (CJEU) is the apex of the EU legal order, and is the supreme arbiter of EU law. For decades, it has delivered judgments, collectively shaping European integration and ‘integration through law’. It has undoubtedly been an authoritative leader in entrenching a European judicial culture, and has benefited from the cardinal principle of judicial independence enshrined in the EU Treaties, which in turn, it has insisted on being upheld as regards national courts. Questions have rarely arisen, however, about judicial independence of the CJEU. The Sharpston Affair of 2020–2021 opened the door to questioning such judicial independence. Is the CJEU at the mercy of the Member States? If so, what are the consequences for the EU legal order? This article reflects on the judicial independence of the CJEU, and offers reflections on how it can be preserved in the future.     

政治问题理论的衰落与重构

政治问题作为可推翻的"自然推定",属于可诉性理论的阻却事由要件。其理论发轫于联邦党人对宪法"特定条款"的阐述。为了应对将政治问题理论区分为经典形式与审慎形式所带来的司法操作性难题,布伦南大法官通过描述政治问题的六个特征,构建了政治问题的确认标准。然而,法院在适用政治问题确认标准的过程中所形成的政治问题理论的循环悖论,以及学界对政治问题理论存在合理性的质疑使得其经典形式出现变异、审慎形式日渐消亡。在激励相容理论基础上重构政治问题理论,可以尝试化解学界对政治问题免于司法审查理论基础的种种非议。     

Human Dignity and Socio-Economic Rights

The South African Constitution numbers among a very few constitutions around the world which include justiciable socio-economic rights. One of the controversies surrounding judicial enforcement of such rights is the extent to which it is appropriate for courts to engage in policy choices in relation to the use of state resources in light of the doctrine of the separation of powers. The South African Constitutional Court has responded by developing an approach to adjudication of socio-economic rights in which the role of the court is to determine the reasonableness or otherwise of measures taken by the legislature and executive to implement such rights. However, the South African Constitution is also notable for its identification of human dignity as an underlying value and the explicit duty placed on the courts to interpret the rights protected under the Bill of Rights in conformity with this value. This article scrutinises the socio-economic rights jurisprudence of the South African Constitutional court in light of the Constitutional commitment to human dignity. It questions whether reasonableness review in socio-economic cases successfully balances human dignity with the appropriate degree of deference to the legislature and executive, in compliance with the doctrine of the separation of powers.     

Precedent in the Sui Generis Legal Order: A Mine Run Approach

In this article, we use case‐to‐case citation networks to explore the force of precedent in EU law. We introduce a novel methodology to analyse the extent to which references to past decisions act as reasons for decisions in subsequent cases and illustrate the approach on the European citizenship case‐law citation network. We conclude that the cohesive pull of precedent in EU citizenship case‐law is too weak to generate a coherent judicial doctrine, thereby confirming qualitative research on the subject. However, the incursions into competences of the Member States in areas, found only tangential to EU citizenship, form a more consistent underlying story.     

In Defence of Due Deference

The doctrine of deference permeates human rights review. It plays a role in defining Convention rights, in determining the nature of the proportionality test applied when analysing non-absolute rights, as well as in deciding the stringency of its application. The role of deference has recently been subjected to both judicial and academic criticism, some of which advocates the demise of the doctrine. This article develops a contextual account of deference that is justified for epistemic reasons, rather than reasons of relative authority. This conception is able to withstand current criticism and is modest enough to play a role in a range of different justifications and understandings of judicial review under the Human Rights Act. The article then provides a more detailed account of deference, taking account of the relative institutional features of the legislature, executive and judiciary, without running the risk that the court fails to perform its constitutional function of protecting individual rights.     

The highest Dutch courts and the preliminary ruling procedure: Critically obedient interlocutors of the Court of Justice

Little is known about the motives of national courts to request a preliminary ruling from the Court of Justice of the EU (CJEU) or their satisfaction with and implementation of answers. This article aims to fill this empirical gap on the basis of an analysis of judgments complemented with interviews with judges of the highest courts in the Netherlands. This article shows that judges extensively use the procedure and follow its outcome almost without exception, despite some dissatisfaction. This discontent has surprisingly not affected the courts' willingness to refer in future. The findings also downplay the bureaucratic politics and judicial empowerment theses emphasising strategic motives to refer. Instead, legal‐formalist considerations and the desire to contribute to the development of EU law explain most of the references of the Dutch Supreme Court. The decision (not) to refer of the three highest administrative courts is primarily based on practical and pragmatic considerations.     

The dangers of constitutional identity

This article purports to expose the dangers of the concept of constitutional identity – a doctrine shaped by apex state courts to shield areas of the national legal systems from the influence of European law. First, the article overviews the use of the concept of constitutional identity in the case law of national and supranational courts, mapping the growing expansion of this doctrine. Second, the article seeks to reconstruct the genealogy of the concept of constitutional identity, tracing its legal origins. Third, the article advances a normative criticism of the concept of constitutional identity, explaining how the doctrine suffers from an incurable lack of determinacy, which inevitably results in arbitrariness in its use. Moreover, the article points out how the practical use of a defensive concept such as constitutional identity is poised to weaken, if not undermine tout court, the process of European integration.     

The European Arrest Warrant and the Sovereign State: A Marriage of Convenience?

The article aims to analyse the extent to which mutual recognition and mutual trust in the criminal law area are developing in the EU in the context of the implementation of the European Arrest Warrant (EAW). First, an overview of the decisions of the Constitutional Courts in Germany, Poland, Cyprus and Czech Republic will be given. These decisions are evidence of a tension, on the one hand, between mutual recognition and state sovereignty and, on the other hand, between the powers of the European institutions in criminal matters and the fundamental rights of the individual. Second, national case‐law in the UK, Belgium, Spain and Italy will be examined. Third, an analysis of the recent decision of the European Court of Justice of 3 May 2007 will be carried out. Finally, a global assessment of the EAW will be made. Is this instrument effectively promoting normative mutual trust among the judicial authorities in the EU? Should it be amended or is it the wrong response at the wrong time? Some suggestions will be put forward, in light of what is considered to be the nature of the EAW and the birth of this instrument as part of the mutual recognition agenda.     

Variations in Member States’ Preliminary References to the Court of Justice—Are Structural Factors (Part of) the Explanation?

The preliminary reference procedure in Article 267 of the Treaty on the Functioning of the European Union (TFEU), which enables national courts to request the Court of Justice to provide a ruling on the interpretation or validity of an EU legal act, is widely considered to be the jewel in the crown of EU law. When considering the number of references from different Member States, it will become immediately apparent that there are considerable variations. This article examines to what extent these variations may be explained by three structural factors, namely (1) population size, (2) willingness to litigate and (3) Member State compliance with EU law. It is concluded that some—but not all—of the variations in number of references from Member State judiciaries may be attributed to structural factors rather than being merely a reflection of different Member State courts’ willingness to make use of Article 267 TFEU on such references (the so‐called behavioural factors).     

National Constitutional Courts in supranational litigation: A contextual analysis

The article examines the role of national constitutional courts in supranational litigation. It firstly illustrates their value and situates well‐known judicial doctrines affecting their jurisdiction in the context of the normative claims, policy agenda and institutional framework promoted by the European Union. Against this background, it gauges the potential of national constitutional courts in countering the process of intergovernmental and technocratic encroachment of national constitutional democracies characterising the most recent evolutionary stages of the European integration process. It is claimed that constitutional courts are in the position of reinforcing, resisting or correcting Union measures with a detrimental impact on national constitutional principles. After having identified in correction the approach more coherent with their constitutional mandate, the article highlights a disturbing paradox: in remaining faithful to their constitutional role, constitutional courts contribute to the sustainability of a comprehensive institutional setting corroding the idea of constitutional democracy on which they are premised.     

'Solange, chapter 3': Constitutional Courts in Central Europe—Democracy—European Union

Abstract: Soon after the accession of eight post‐communist states from Central and Eastern Europe to the EU, the constitutional courts of some of these countries questioned the principle of supremacy of EU law over national constitutional systems, on the basis of their being the guardians of national standards of protection of human rights and of democratic principles. In doing so, they entered into the well‐known pattern of behaviour favoured by a number of constitutional courts of the ‘older Europe’, which is called a ‘Solange story’ for the purposes of this article. But this resistance is ridden with paradoxes, the most important of which is a democracy paradox: while accession to the EU was supposed to be the most stable guarantee for human rights and democracy in post‐communist states, how can the supremacy of EU law be now resisted on these very grounds? It is argued that the sources of these constitutional courts’ adherence to the ‘Solange’ pattern are primarily domestic, and that it is a way of strengthening their position vis‐à‐vis other national political actors, especially at a time when the role and independence of those courts face serious domestic challenges.