Challenging EU constitutional law: The Italian Constitutional Court's new stance on direct effect and the preliminary reference procedure

This article seeks to examine the relationship between EU law and the Italian legal order in light of the recent Italian Constitutional Court (ICC)’s jurisprudence attempting to redefine EU core principles. When fundamental rights are at stake, three assumptions are challenged: the determination of direct effect shall be a prerogative of the ECJ; EU directly effective provisions entail the disapplication of conflicting national law; judges have the discretion to refer preliminary references to the ECJ where a clarification on EU law is needed. The contribution argues that the judicial search for a balance between sovereignty and supranationality is undermined by the ICC's new resistance to the well‐established EU jurisprudence. In that respect, the paper posits that the ICC's activism is the result of an unjustified ‘argumentative self‐restraint’ of the ECJ vis‐à‐vis the evolution of EU foundational principles.     

Italian Courts,the ECJ and Transfers of Undertakings: A Multi-Speed Dialogue?

The paper seeks to analyse certain paradigmatic cases of dialogue—or, indeed, non-dialogue—between national judges and the ECJ, though within the (still possibly emblematic) limits of a focus on the law on the transfer of undertakings. The analysis is less concerned with portraying the detailed impact of the ECJ's decisions on the domestic legal order, and is focused more upon the 'modality' of the dialogue to date carried out between Italian and European judges. The logic, which guides this dialogue (or, the lack of its evolution), furnishes us with a better understanding of the production, circulation and impact of ECJ jurisprudence. This dialogue seems to be characterised, by non-uniform, or multi-speed, developments. On the one hand, Article 177 references have been concentrated around the theme of undertakings in critical difficulties or subject to a creditors' arrangement procedure. In this area, the Italian courts have engaged in explicit dialogue with the ECJ and have made the greatest effort to read—not without some technical-juridical struggle—the national norm in the light of the provisions of the Acquired Rights Directive and its interpretation by the ECJ. By contrast, however, with regard to other specific issues (in particular, those concerning subcontracting) it is apparent that not only were the Italian courts (and the Corte di Cassazione in particular) loathe to enter into direct dialogue with the ECJ, but also that the ECJ's jurisprudence, built up through dialogue with other national courts, was not even consulted in an effort to guarantee an interpretation of national norms, in conformity with Community law.     

法理学、法哲学关系辨析

当前我国把理论法学与法理学视为一体 ,这不符合理论法学内部学科分工的要求 ,也正是我国理论法学落后的一个重要原因。这特别表现在法哲学与法理学的不分上。法理学研究主要是为了指导一个国家的法制建设 ,使立法、执法、司法工作有一个统一的和明确的指导思想 ,以保持其高度地协调一致和有效地落实在人们的行动中。法哲学研究则要探索所有法的本质、发展规律和发展趋势。显然二者属于不同的理论层面。     

Constitutionalising an Overlapping Consensus: The ECJ and the Emergence of a Coordinate Constitutional Order

The European Court of Justice's (ECJ's) jurisprudence of fundamental rights in cases such as Schmidberger and Omega extends the court's jurisdiction in ways that compete with that of Member States in matters of visceral concern. And just as the Member States require a guarantee that the ECJ respect fundamental rights rooted in national tradition, so the ECJ insists that international organisations respect rights constitutive of the EU. The demand of such guarantees reproduces between the ECJ and the international order the kinds of conflicting jurisdictional claims that have shadowed the relation between the ECJ and the courts of the Member States. This article argues that the clash of jurisdiction is being resolved by the formation of a novel order of coordinate constitutionalism in which Member States, the ECJ, the European Court of Human Rights and other international tribunals or organisations agree to defer to one another's decisions, provided those decisions respect mutually agreed essentials. This coordinate order extends constitutionalism beyond its home territory in the nation state through a jurisprudence of mutual monitoring and peer review that carefully builds on national constitutional traditions, but does not create a new, encompassing sovereign entity. The doctrinal instruments by which the plural constitutional orders are, in this way, profoundly linked without being integrated are variants of the familiar Solange principles of the German Constitutional Court, by which each legal order accepts the decisions of the others, even if another decision would have been more consistent with the national constitution tradition, ‘so long as’ those decisions do not systematically violate its own understanding of constitutional essentials. The article presents the coordinate constitutional order being created by this broad application of the Solange doctrine as an instance, and practical development, of what Rawls called an overlapping consensus: agreement on fundamental commitments of principle—those essentials which each order requires the others to respect—does not rest on mutual agreement on any single, comprehensive moral doctrine embracing ideas of human dignity, individuality or the like. It is precisely because the actors of each order acknowledge these persistent differences, and their continuing influence on the interpretation of shared commitments in particular conflicts, that they reserve the right to interpret essential principles, within broad and shared limits, and accord this right to others. The embrace of variants of the Solange principles by many coordinate courts, in obligating each to monitor the others' respect for essentials, creates an institutional mechanism for articulating and adjusting the practical meaning of the overlapping consensus.     

论法律人工智能的法理逻辑

法律人工智能的法理是"实践之法理",是证成法律人工智能实践之正当性的理据,它反映人工智能的技术理性与法律实践理性相融合以揭示法律运行的规律和特征,是"法外之理"的又一阐释。法律人工智能的法理逻辑在于辩护和证成,其价值不仅为法律人工智能提供法理解释和学理支撑,还在于规范和引导法律人工智能的发展。法律融合人工智能有其天然条件,探究其蕴含之法理是法律融合科技之法理的新命题,法理形式理性是辩护法律人工智能之法理的本质特征。法理之要义应在于指导人工智能理解和遵循立法及司法规律,符合法律任务的特征,满足法律实践的需求,定位和发挥"辅助手"的作用,最大限度地发挥人工智能的技术优势。     

The History of Common Market Law Review 1963–1993

The transnational organisation of an academic discipline of European law has been a key component in the history of European law. A constitutive element is explored in this article, namely, the journal Common Market Law Review (CML Rev.). General existing claims of a strong connection between the Community institutions and academia in the transnational, academic discipline of European law are substantiated, and it is documented how CML Rev. legitimised the jurisprudence of the ECJ, differentiated European law from international law and countered national criticism as the academic lighthouse of the discipline in the 1960s and 1970s. In the 1980s, other forces drove the academic field forward, and CML Rev. lost its position as the avant‐garde in the discipline, but the journal developed a critical stance and rejected the most radical claims of the ECJ on the ultimate authority as part of a development towards professional maturity in the same period.     

The Lisbon Judgment of the German Constitutional Court,the Primacy of EU Law and the Problem of Kompetenz‐Kompetenz: A Conflict between Right and Right in Which There is No Praetor1

The ECJ has long asserted its Kompetenz‐Kompetenz (the question of who has the authority to decide where the borders of EU authority end) based on the Union treaties which have always defined its role as the final interpreter of EU law. Yet, no national constitutional court has accepted this position, and in its Lisbon Judgment of 2009 the German Constitutional Court (FCC) has asserted its own jurisdiction of the final resort' to review future EU treaty changes and transfers of powers to the EU on two grounds: (i) ultra vires review, and (ii) identity review. The FCC justifies its claim to constitutional review with reference to its role as guardian of the national constitution whose requirements will constrain the integration process as a standing proviso and limitation on all transfers of national power to the EU for as long as the EU has not acquired the indispensable core of sovereignty, i.e. autochthonous law‐making under its own sovereign powers and constitution, and instead continues to derive its own power from the Member States under the principle of conferral. Formally therefore, at least until such time, the problem of Kompetenz‐Kompetenz affords of no solution. It can only be ‘managed’, which requires the mutual forbearance of both the ECJ and FCC which both claim the ultimate jurisdiction to decide the limits of the EU's powers—a prerogative which, if asserted by both parties without political sensitivity, would inevitably result in a constitutional crisis. The fact that no such crisis has occurred, illustrates the astute political acumen of both the FCC and the ECJ.     

Judicial Interpretation or Judicial Activism? The Legacy of Rationalism in the Studies of the European Court of Justice

During the last two decades, law as a factor in European integration has attracted great scientific interest. Numerous studies and theoretical analyses have been published that have undertaken the task of examining and explaining the role of law in the progress of integration. The European Court of Justice (ECJ) in particular, as Europe's judiciary body, draws much attention in this context. However, the inflexible, mechanistic and universalistic notion of rationality that these works employ leads to serious misinterpretations and unjustified criticism regarding the role the ECJ takes in the course of integration. Within the frameworks of contemporary approaches, the Court is perceived as just one more political player among other actors and institutions, able to shape the EU in the pursuit of its own rational interests. By outlining the theoretical concept of context rationality, this article shows that the logics of law and judicial lawmaking are based on a non‐trivial and non‐political rationality and cannot be understood appropriately without paying attention to the context of European law.     

Islamo-Arabic Culture and Women’s Law: An Introduction to the Sociology of Women’s Law in Islam

The present paper addresses the mutual relationship between society and law in shaping women’s law in Islam from the perspective of the sociology of law. It analyzes the role of pre-Islamic social, political, and economic structures in the Arabian Peninsula in modeling women’s law and highlights some customary laws which were rejected or revived and integrated in Islamic jurisprudence. In this regard, the paper reviews issues such as polygyny, rights to inheritance, marriage, the process of testimony and acceptable forms of evidence in legal matters, diyya (blood money), the exclusion of women from the judiciary and the system of issuing fatwa (legal opinion), natural right of guardianship (wilāya) of underage children after divorce, and regulations related to the veil. Finally, referring to the manner of the Prophet of Islam, the paper suggests that ?urf (custom) can be considered as a source of Islamic legislation alongside other commonly known sources of fiqh (Islamic jurisprudence).     

Re Herrington: aboriginality and the quality of human rights jurisprudence in end-of-life decisions by the Australian judiciary

In Re Herrington [2007] VSC 151 (King's Case) the partner and family of an Aboriginal woman (diagnosed as being in a persistent vegetative state after an accident) sought an order from the Victorian Supreme Court that the decision of her treating doctors to withhold further medical treatment be opposed. The resultant judicial decision contains a very brief review of the now considerable case law in this area, does not mention the increasingly important role of clinical ethics committees in this context, or discuss the relevance of recently passed human rights legislation in Victoria. Given the statutory requirement for judicial reference to international human rights norms in jurisdictions such as Victoria and the Australian Capital Territory, and their increasing importance in other developed nations, the authors highlight the need for the Australian judiciary to lift the quality of their jurisprudence in relation to end-of-life cases.     

Constitutional Review in the Mega‐Leviathan: A Democratic Foundation for the European Court of Justice

The European Court of Justice (ECJ) serves, among other things, as a constitutional court for the EU. This means that it possesses the legal right to strike down both EU and national laws it deems irreconcilable with treaty provisions. In the present article, we shall draw on Hans Kelsen's theory of democracy to argue that the ECJ's competence to review and invalidate legislation is, in fact, indispensable for the democratic legitimacy of the EU's legal system as a whole.     

Woodcock v Cumbria Primary Care Trust: The Objective Justification Test for Age Discrimination

This note discusses the limits to the defence of objective justification when applied to direct age discrimination, specifically with regard to situations where the employer attempts to rely on cost‐saving as a legitimate aim. The author examines the jurisprudence of the Court of Justice of the European Union (formerly the European Court of Justice, ECJ) on which this case relies, and considers whether the defence has been interpreted too widely, opening up the possibility of cost‐saving as a defence to discrimination on the grounds of this particular protected characteristic. The note concludes that, while cost‐saving cannot be the sole justification for less favourable treatment by employers, it may nevertheless form part of an overall legitimate aim when coupled with additional factors.     

Codification of EC Administrative Procedures? Fitting the Foot to the Shoe or the Shoe to the Foot

Abstract: There are two basic models of EC Administrative Process: Direct, where the procedures are carried out by the Commission and Indirect, where Member States act as agents for the Community. In the first case, the development of general principles to structure the procedures has to date been undertaken by the ECJ. The problem posed by indirect administration, governed by the National Principles of Administrative Law, is one of variable standards. For different reasons, both models raise the question whether EC administrative procedures should be codified. This article contrasts two styles of codification found in the Member States: the first, a short statement of general principles, favoured by the Council of Europe and resembling the standards set out in the jurisprudence of the ECJ; the second, a detailed codification typified by the German Administrative Procedures Code. The author concludes that the first method may be more appropriate for the EC.     

法律程序构建的基本逻辑

在刑事诉讼法修改过程中,立法部门需要对多方面的因素加以考量。其中,国家权力与公民权利的适当平衡,是防止国家权力滥用、避免公民权利受到任意侵犯的首要制度安排。对那些违反法律程序、侵犯公民权利的行为,从实体结果和诉讼程序上设定妥善的司法救济措施,是保证刑事程序得以有效实施的程序设计。为避免传统的"立法推进主义"制度的缺陷和风险,立法部门应以科学方法观察和总结那些为司法机关所创制的改革经验,及时将那些行之有效的改革措施吸收到法律之中。     

National Judges,Community Judges: Invitation to a Journey through the Looking‐glass—On the Need for Jurisdictions to Rethink the Inter‐systemic Relations beyond the Hierarchical Principle

The historical conflict between the European Court of Justice (ECJ) and the national constitutional courts regarding primacy is a misunderstanding. In going through the looking‐glass, we can understand that, on the contrary, the ECJ and the national constitutional courts adopt comparable solutions in their treatment of legal pluralism, and that they see the negation of pluralism as essential for the survival of their own legal orders. Therefore, these judges must be offered a new theoretical context to help them reconcile their role as supreme guardian with the taking into account of the pluralist context. Finally, practical proposals must be made to give judges the instruments and techniques that are capable of reflecting this plural structure.     

A Political Economy Perspective of Judicial Review in the European Union: Judicial Appointments Rule, Accessibility and Jurisdiction of the European Court of Justice

The paper examines the benefits the sovereign member states of the EU expect to derive by granting the European Court of Justice the power to review the collective policy making decisions of the EU legislative bodies. Using the methodology of constitutional political economy it investigates the one-country one-judge rule of judicial appointments in the ECJ, the restrictions imposed on litigants to access the ECJ and the limits on the jurisdiction of the ECJ to review EU legislation. It also analyses how the presence of judicial review affects the size of the policy measures taken by the policy makers.     

Speaking of Rights: The Influence of Law and Courts on the Making of Family Migration Policies in Germany

The impact of the judiciary on immigration policies has been simultaneously overestimated and underestimated. Migration scholars broadly assume that courts have forced liberal states to admit unwanted migration. Based on an analysis of family migration policy making in the Federal Republic of Germany (1975‐90), I show that the direct policy impact of court rulings was limited, as courts were reticent to impinge upon democratic sovereignty. However, the indirect impact of the courts was substantial. Political actors amplified the implications of rulings by interpreting the jurisprudence selectively and expansively. Thus, they turned speaking of rights into a powerful political resource.     

Motive Unmasked: The European Court of Justice, the Free Movement of Goods, and the Search for Legitimacy

Abstract: In exempting from scrutiny under Article 30 EC certain measures constituting 'selling arrangements', the author examines whether the European Court of Justice in Keck and Mithouard and its progeny sought more than mere clarification of its jurisprudence on the free movement of goods. To wit, he claims that the Court was motivated by a sense of waning faith in its institutional legitimacy, initiating in Keck an attempt to more vigorously police the Community-Member State jurisdictional divide in favour of Member State prerogatives, banishing the Community judicial and legislative branches from the realm of 'selling arrangements'. After critical assessment of this hypothesis and of the Court's success, a final section queries whether the ECJ has adopted similar strategies in the Competition law and services realms.     

实用主义的法官法理学*--透视霍姆斯大法官的司法哲学

奥利弗·W.霍姆斯是美国法理学与司法史上的一个里程碑,历经百年,他的司法哲学仍然意义深远地影响着美国的法律思想与司法实践。在霍姆斯的司法哲学理论中,法官的首要职责是遵守代表多数方的立法,即使立法存在缺陷;然而,对立法机构的尊重,并不是因为法院缺乏发现事实的能力,而是法官在裁判时不得依赖个人对事实的认知。在其撰写的司法意见中,霍姆斯为言论自由与结社所做的辩护与其对优势社会力量或立法的尊重之间存在着矛盾。正是古典的司法自制理论与狭义的司法能动主义,共同构成了霍姆斯的实用主义法理学,这是一种美国法律本土背景下的法官法理学。     

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.