All Bark and No Bite: Notes on the Federal Constitutional Court's 'Banana Decision'

The Federal Constitutional Court's banana decision of 7 June 2000 continues the complex theme of national fundamental‐rights control over Community law. Whereas in the ‘Solange II’ decision (BVerfGE 73, 339) the Federal Constitutional Court had lowered its standard of review to the general guarantee of the constitutionally mandatorily required minimum, the Maastricht judgment (BVerfGE 89, 155) had raised doubts as to the continued validity of this case law. In the banana decision, which was based on the submission of the EC banana market regulation by the Frankfurt‐am‐Main administrative court for constitutional review, the Federal Constitutional Court has now confirmed the ‘Solange II’decision and restrictively specified the admissibility conditions for constitutional review of Community law as follows. Constitutional complaints and judicial applications for review of European legislation alleging fundamental‐rights infringements are inadmissible unless they show that the development of European law including Court of Justice case law has since the ‘Solange II’ decision generally fallen below the mandatorily required fundamental‐rights standard of the Basic Law in a given field. This would require a comprehensive comparison of European and national fundamental‐rights protection. This paper criticises this formula as being logically problematic and scarcely compatible with the Basic Law. Starting from the position that national constitutional courts active even in European matters should be among the essential vertical ‘checks and balances’ in the European multi‐level system, a practical alternative to the Federal Constitutional Court's retreat is developed. This involves at the first stage a submission by the Federal Constitutional Court to the Court of Justice, something that in the banana case might have taken up questions on the method of fundamental‐rights review and the internal Community effect of WTO dispute settlement decisions. Should national constitutional identity not be upheld even by this, then at a second stage, as ultima ratio taking recourse to general international law, the call is made for the decision of constitutional conflicts by an independent mediating body.     

The non-discrimination principle and American higher education: judicial failure to recognize the present effects of past discrimination

This article suggests that any approach to the issue of access to higher education in the United Kingdom not view the approach of the United States in the recent University of Michigan cases as providing appropriate guidance. It is the author's assertion that the United States Supreme Court has failed to recognize the present effects of a long history of deliberate racial segregation of higher education in America and the affirmative duty of public higher education to remedy the effects of America's unique system of racial segregation. Specifically, the Supreme Court's jurisprudence has abandoned the interests of the victims of a judicially sanctioned exclusion of African-Americans from public higher education during most of the 20th Century, and has instead supported equal access only to the extent that it furthers the university's own interests in so-called ‘diversity’. This disregard for the history of American racial segregation is inconsistent with the Constitutional principles announced in Brown v. Board of Education and the federal judicial decisions which secured and advanced the mandate for racial equality announced in Brown v. Board.     

Social Insurance Monopolies in Community Competition Law and the Italian Constitution: 'Practical' Convergences and 'Theoretical' Conflicts

An Italian judge, following earlier suggestions of the national antitrust Authority, has referred to the Court of Justice for a preliminary ruling under Article 234 EC Treaty two questions on the interpretation of Articles 81 and 86 of the EC Treaty. With those questions, raised in an action brought by a self‐employee against the Istituto Nazionale per l'Assicurazione contro gli Infortuni sul Lavoro (INAIL) concerning the actor's refusal to pay for social insurance contributions, the Tribunale di Vicenza has in summary asked the Court of Justice whether the public entity concerned, managing a general scheme for the social insurance of accidents at work and professional diseases, can be qualified as an enterprise under Article 81 EC Treaty and, if so, whether its dominant position can be considered in contrast with EC competition rules. This article takes this preliminary reference as a starting point to consider in more general terms the complex constitutional issues raised by what Ge´rard Lyon‐Caen has evocatively called the progressive ‘infiltration’ of EC competition rules into the national systems of labour and social security law. The analysis is particularly focused on the significant risks of ‘constitutional collision’, between the ‘solidaristic’ principles enshrined in the Italian constitution and the fundamental market freedoms protected by the EC competition rules, which are implied by the questions raised in the preliminary reference. It considers first the evolution of ECJ case law—from Poucet and Pistre to Albany International BV—about the limits Member States have in granting exclusive rights to social security institutions under EC competition rules. It then considers specularly, from the Italian constitutional law perspective, the most recent case law of the Italian Constitutional Court on the same issues. The ‘contextual’ reading of the ECJ's and the Italian Constitutional Court's case law with specific regard to the case referred to by the Tribunale di Vicenza leads to the conclusion that there will probably be a ‘practical convergence’in casu between the ‘European’ and the ‘national’ approach. Following the arguments put forward by the Court of Justice in Albany, the INAIL should not be considered as an enterprise, in line also with a recent decision of the Italian Constitutional Court. And even when it was to be qualified as an enterprise, the INAIL should in any case be able to escape the ‘accuse’ of abuse of dominant position and be allowed to retain its exclusive rights, pursuant to Article 86 of the EC Treaty. This ‘practical convergence’in casu does not, however, remove the latent ‘theoretical conflict’ between the two approaches and the risk of ‘constitutional collision’ that it implies. A risk of a ‘conflict’ of that kind could be obviously detrimental for the European integration process. The Italian Constitutional Court claims for herself the control over the fundamental principles of the national constitutional order, assigning them the role of ‘counter‐limits’ to the supremacy of European law and to European integration. At the same time, and more generally, the pervasive spill over of the EC market and competition law virtually into every area of national regulation runs the risk of undermining the social and democratic values enshrined in the national labour law traditions without compensating the potential de‐regulatory effects through measures of positive integration at the supranational level. This also may contribute to undermine and threaten, in the long run, the (already weak) democratic legitimacy of the European integration process. The search for a more suitable and less elusive and unilateral balance between social rights and economic freedoms at the supranational level should therefore become one of the most relevant tasks of what Joseph Weiler has called the ‘European neo‐constitutionalism’. In this perspective, the article, always looking at the specific questions referred to the Court of Justice by the Tribunale di Vicenza, deals with the issue of the ‘rebalance’ between social rights and economic and market freedoms along three distinct but connected lines of reasoning. The first has to do with the need of a more open and respectful dialogue between the ECJ and the national constitutional courts. The second is linked to the ongoing discussion about the ‘constitutionalization’ of the fundamental social rights at the EC level. The third finally considers the same issues from the specific point of view of the division of competences between the European Community and the Member States in the area of social (protection) policies.     

Sisters in Arms: European Community Law and Sex Equality in the Armed Forces

Abstract: Recently the European Court of Justice has been shedding a new light on the limits of Community competence for defence. This article analyses the rulings in Sirdar, Kreil, and Dory with regards to two interrelated issues. First it discusses the effect of Community law on the equality of men and women in the armed forces of the Member States. Second, it deals with the impact of these decisions on the constitutional order of the European Union. The article argues that Community law has a considerable impact on defence‐related national law. Therefore the analysis ultimately contributes to a narrow aspect of the constitutional debate: the demarcation of competencies between the Member States and the Community in matters related to defence.>     

The Jurisprudence of Constitutional Conflict: Constitutional Supremacy in Europe before and after the Constitutional Treaty

Abstract:  One of the core constitutional questions for national constitutional courts in the EU in the past decades has been whether to accept the claim made by the Court of Justice that EU law is the supreme law of the land, taking primacy even over conflicting national constitutional provisions. With the inclusion in the recently adopted Constitutional Treaty of a clause explicitly confirming the 'primacy of EU Law' appearances suggest that the EU is about to establish a characteristic of mature, vertically integrated, federal states such as the USA. This article argues that this view is mistaken. It develops a comprehensive jurisprudential framework for addressing constitutional conflicts, 'Constitutionalism Beyond the State' (CBC). CBS detaches the discussion of supremacy and constitutional conflict from a statist framework; provides a jurisprudential account that explains and justifies the highly differentiated, context-sensitive and dynamic set of conflict rules that national courts have in the past adopted; and provides the lacking theoretical basis for the more attractive, but undertheorised sui generis accounts of European constitutional practice that have recently gained ground in the literature. CBS provides a jurisprudentially grounded reconstructive account of why the issue of constitutional conflict is as rich and complicated in Europe as it is and why it is likely to remain so even if the Constitutional Treaty is ratified. The article then goes on to make concrete proposals addressed to national constitutional courts and the Court of Juctise respectively about how, in application of the developed approach, constitutional conflicts ought to be addressed doctrinally. It includes a proposal to read the new 'constitutional identity' clause as authorising Member States as a matter of EU Law to set aside EU Law on constitutional grounds under certain circumstances.     

Once more with ‘sympathy’ but no resolution for intended mothers: the EU,Ireland and the surrogacy dilemma

This article examines the decision of the Court of Justice of the European Union (CJEU) in Z v A Government Department and the Board of Management of a Community School and the court’s interpretation of existing EU legislation on whether commissioning or intended mothers are entitled to paid leave equivalent to maternity benefit. It highlights the failure of the CJEU in this case to call for specific EU legislation on the issue of surrogacy. The Irish Courts have been more proactive in this regard. The Supreme Court has acknowledged that ‘pending the introduction … of legislation dealing with this field, it is … not for the courts to attempt to resolve the complex questions that need to be addressed’. This article compares recent decisions of the Irish Courts to that of the CJEU as they struggle to keep abreast with modern society in the absence of legislation at national and EU level.     

The influence of the rulings of the Constitutional Court on the development of health law in Lithuania

This article highlights some recent developments in the constitutional doctrine of the right to health care in Lithuania, and more in particular the impact of the decisions of the Constitutional Court of Lithuania on the development of health law. The right to health care, enshrined in the Constitution, is both an obligation of the state and an individual right. The Constitutional Court has developed a doctrine of the right to health care, as well a doctrine of certain other constitutional social rights, which is based on the understanding of the close interrelation between the different constitutional rights, the principle of indivisibility and equal importance of these rights, and the presumption of justiciability of social rights. The analysis is based on the jurisprudence of the Constitutional Court. Two cases on the disputes of the legal regulation concerning the pharmaceutical activities are presented in more detail.     

Between Procedural Impermeability and Constitutional Openness: The Italian Constitutional Court and Preliminary References to the European Court of Justice

On 15 April 2008, the Italian Constitutional Court (ICC) raised for the first time a preliminary question to the European Court of Justice (ECJ). This decision (see judgment No 102/2008 and order No 103/2008) represented a turning point in the ICC's case‐law, and calls for a careful assessment of the motives backing such revirement as well as of the legal reasoning that the Italian judges used to wrap it up without repudiating their previous case‐law. In addition to this preliminary analysis, the aim of this essay is to explore two themes: i) the developments of the ICC's case‐law as regards the role of Community Law and the ECJ, and ii) the appraisal of the interplay between the ICC and the ECJ in the light of the notion of ‘interpretive competition’.     

Effective Sanctions in EC Law: A Moving Boundary in the Division of Competence

Abstract: This article details and analyses the development of European Court of Justice guidelines regarding sanctions provided by Member States to correct infractions of EC law. It will be shown that the contemporary policy of the Court significantly retreats from an early practice of non-interference with the discretion of national judges to attach domestic remedies for breach of substantive Community measures. Preliminary comments will be made on the possible impact of these developments on the constitutional structure of the Community, and in particular their potential effect on the continuing debate concerning the legitimacy of EC rules.     

Community trade mark case law round-up 2006

Legal Context: This article looks at the important decisions of 2006 on theCommunity Trade Mark made by the Court of First Instance, theEuropean Court of Justice and the OHIM. These cases concernthe application of Council Regulation 40/94 on the CommunityTrade Mark, and also preliminary rulings from the European Courtof Justice on the interpretation of Council Directive 89/104(the Trade Mark Directive). Key Points: The volume of case law relating to Community trade marks, notto mention the variety of official languages in which the lawis interpreted, makes it almost impossible for even the conscientiouspractitioner to keep abreast with developments as they occur. This article provides an overview of the shifts in Communitytrade mark practice, in terms of not only the relatively accessiblesubstantive law but also the far more diffuse areas of procedurallaw and Office practice. In seeking to review and explain these shifts, the authors haveadopted a view of the case law that is functional rather thanphilosophical. In doing so, they lay bare the manner in whichthe institutions that administer and adjudicate Community trademark issues interrelate to one another. Practical Significance: Practitioners can quickly find the important decisions from2006 relating to particular articles of the Council Regulation40/94 on the Community Trade Mark. This article provides an overview of the most significant trademark cases decided in 2006 by the European Courts of Justiceand the OHIM Boards of Appeal. The article enables practitionersto access rapidly the key decisions of 2006. The cases discussed concern the application of Council Regulation40/94 on the Community trade mark (‘CTMR’), CommissionRegulation 2868/95 implementing the CTMR (‘CTMIR’),and Council Directive 89/104 (the ‘Trade Mark Directive’).     

The Paradox of Docket Control: Empowering Judges,Frustrating Refugees

This article focuses on the gradual expansion of docket control mechanisms in refugee (or asylum) law proceedings in Germany. It shows that granting judges more and more control over their asylum dockets was a central policy tool repeatedly employed by German politicians over the decades in the hope that it would stem the flow of refugees into the courts and ultimately make it easier (and faster) to deport failed claimants. Politicians were much more willing to limit access to asylum appeals than to appeals in general administrative law, illustrating how the pressure to come up with solutions for the flood of asylum applications overcame established norms for maintaining equal access to the courts for all claimants. Surprisingly, the Constitutional Court remained largely unaffected by these efforts except for a paradigm shift that occurred with the amendment of the constitutional asylum provision in 1993.     

THE CONSTITUTIONAL STATUS OF WOMEN: The Burger Court and the Sexual Revolution in American Law

This article analyzes the revolution in Constitutional Law concerning sex discrimination that has been brought about by the Burger Court. It provides an overview of both the doctrinal changes and the policy changes that have composed this legal revolution. It identifies certain policy areas that have troubled the Burger Court during this process and attempts to explain why some policy problems have proved more intractable than others. It concludes with a modest suggestion for dealing with those problems.     

The State of Gender Equality Law in the European Union

Abstract:  This article assesses critically the recent law and policy initiatives in European Union gender equality. As a fundamental right, the principle of gender equality is to apply in all areas of EU law. Its scope has been extended to the access to and supply of goods and services and, according to the European Court of Justice, to the Third Pillar. Despite efforts to render the principle visible and accessible, a number of provisions remain unclear and contradictory. The contribution of external actors in this field is set to help safeguarding and enhancing the Community gender equality acquis .     

Implementing Community obligations in the realms of intellectual property

Legal context. The various Acts of Parliament governing UK intellectualproperty law have been significantly amended to give effectto Community law. This article discusses the powers used bythe Secretary of State to implement Community obligations andthe Court of Appeal's recent clarification of the scope of thosepowers. Key points. This article describes the concerns expressed bysome commentators on the scope of the powers under the EuropeanCommunities Act 1972 and the key cases on that scope, includingOakley v Animal. The article uses the implementation of performers'moral rights as an example of where going beyond strict Communityobligations is necessary. Practical significance. The article will be useful to anyoneconsidering the validity of the changes made to domestic law,including amendments to primary legislation, to implement Directivesor other Community obligations.     

Could Wild Horses Drag Access Away From Courtrooms? Expanding First Amendment Rights to New Pastures

More than thirty years ago, the Supreme Court of the United States created a First Amendment right of access to criminal trials in Richmond Newspapers, Inc. v. Virginia. At the time—and in the Supreme Court cases that immediately followed Richmond Newspapers—the assumption was that such a right of access would apply only to judicial proceedings. This article examines a small but significant body of case law that extends the First Amendment right of access to criminal proceedings to new venues far removed from courtrooms. Using the 2012 opinion of the United States Court of Appeals for the Ninth Circuit in Leigh v. Salazar as an analytical springboard, this article analyzes how the so-called experience-and-logic test fashioned by the high Court in Press-Enterprise Co. v. Superior Court in 1986 is being applied in such cases. Cases like Leigh also provide an excellent opportunity for courts to clarify precisely the nature and extent of the history required to find qualified rights of access given the relatively recent government program to which the plaintiff in that case now seeks access.     

经济法规的合宪性审查标准——基于对美国联邦最高法院判例的考察

对法律文件的违宪审查是我国合宪性审查体系的重要组成部分。在美国的违宪审查实践中,针对法律所涉及的内容,分别存在着合理审查、中等审查和严格审查等不同的审查标准。对于经济领域的法律,一般采用合理审查标准,但近年来在涉及言论自由的经济领域,其审查标准往往会提高。在我国的合宪性审查制度中,如果法院在个案审判中发现法律存在违宪嫌疑时,可以建立向最高人民法院移送的机制,并通过听证程序进行充分论证以决定是否向全国人大常委会提出合宪性审查请求。在审查中,对于我国的经济法律不宜直接采用合理审查标准,而应提高审查标准。     

Looking for Coherence within the European Community*

Abstract: This paper discusses the relationship between the idea of coherence and the legal order set up by the European Community. It focuses on a specific dimension of this relationship and shows how the appeals to coherence made by the European Court of Justice have shaped a particular branch of the European legal order, namely, the judicial review of Community acts. The analysis of the Court of Justice's case law in this field shows that in its extensive use of coherence the Court of Justice explored and brought into play different types of coherence and, while it failed to distinguish between them, it made use of sorts of coherence that thus far legal theorists have disregarded. The article concludes that a closer collaboration between legal theory and legal practice would be profitable for both legal theorists and Community law specialists.     

Learning to be A Peacemaking Lawyer: Law Student Perspectives on Building Peacemaking into Law School Curricula,Building Paths to Practice for New Lawyers,and Interdisciplinary Training

From our perspectives as students, we reflect on the teachings of Lawyer as Peacemaker, a Winter 2015 course taught at UCLA School of Law — the school's course devoted to peacemaking lawyering. Utilizing our newfound peacemaking worldview, we share our collective reactions to the Lawyer as Peacemaker course and the ten articles in the Family Court Review Special Issue on Peacemaking for Divorcing Families. We then advocate for integrating peacemaking into law school curricula and experiential learning offerings and make recommendations on how law schools today can prepare students to practice peace.

Key Points for the Family Court Community:
• This article is a collaborative work product of three students who come from an array of work experience, backgrounds and interests and from their newly founded peacemaking worldview, the three students collaboratively analyzed ideas presented in the Lawyer as Peacemaker course and the articles from this issue.
• The peacemaking mediation allows the parties more control over their legal disputes and allows the control of the costs that come with litigation.
• Peacemaking involves a holistic and collaborative method, involving mental health professionals to financial advisors as well as legal professionals.
• However, peacemaking skill courses are not readily available to many law students while studying in law school.
• This valuable asset should be made available more extensively to law students interested in family law.

     

Data Protection: An Opening Door?

Swedish public law has incorporated a general rule of public access to documents, and to information in the wider sense, since the Freedom of the Press Act of 1766. On the Community level, the relationship between Regulation (EC) 45/2001 on data protection and Regulation (EC) 1049/2001 on public access to documents exemplifies the tension between the public's interest in scrutinising the administration carried on in its name, and the integrity of the individual. However, a similar tension exists between Sweden's Personal Data Act of 1998, implementing Directive 95/46, and the Freedom of the Press Act. A misuse model of data protection law, by seeking to concentrate on serious rather than technical infringements of privacy, might serve to ease the tension. The views expressed in this article are solely those of the author and are not attributable to any Community institution. This revised version was published online in August 2006 with corrections to the Cover Date.     

"Braxton Hick's" or the birth of a new era? Tracing the development of Ireland's abortion laws in respect of European Court of Human Rights Jurisprudence

In Ireland, Article 40.3.3 degrees of Bunreacht na hEireann (the Irish Constitution) guarantees the right to life of the unborn child and the equal right to life of the mother. Abortion in Ireland is permissible only where there is a real and substantial risk to the mother's own life. Since Ireland became a signatory to the European Convention on Human Rights in 1950,2 there have been concerns that it could result in Ireland being compelled to introduce a right to abortion. This article commences with a review of the extant law on abortion in Ireland, tracing the Constitutional protection afforded to the unborn child. The article will discuss the impact of the European Court of Human Rights' jurisprudence in regard to access to abortion and to information on abortion services in Ireland in an effort to ascertain if it really has resulted in a radical change to Irish abortion laws. As such, it will also be necessary to examine the more recent decisions of the ECtHR such as Tysiac v. Poland, and A, B, and C v. Ireland, to determine both the approach of the ECtHR to access to abortion in general and also to consider if it has resulted in a liberalisation of abortion law in Ireland.