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.     

The Treaty of Amsterdam: Challenges of Flexibility and Legitimacy

The paper reviews key aspects of the new constitutional framework for the European Union, once the Treaty of Amsterdam has been ratified, in the light of the core challenges of managing flexible integration in an enlarged Union and securing adequate legitimacy for the integration project. Reviewing briefly the general debates on flexibility, and its relationship to different constitutional and political futures for the Union which are suggested by those involved in the debates, the paper examines the principal provisions governing what is termed 'closer cooperation' within the new Union treaties. The emphasis is placed on the framework provisions of the TEU, and those in the First Pillar. It is noticeable that the Treaty takes a 'non-ideological' approach to flexibility, eschewing direct support for those who interpret flexibility as meaning more or less integration in the future. It provides a framework for future cooperation which is likely to be too restrictive to be workable, except in very limited circumstances. However, particular instances of flexibility are provided in the Treaty, in the form of the opt-outs from the new free movement title and the communitarisation of Schengen for the United Kingdom, Ireland and Denmark, and some might even describe these as 'pick-and-choose'. The paper concludes by reviewing the flexibility debate against the background of the ongoing legitimacy challenge for the Union, arguing that, as currently conceived, flexibility is more to do with balancing political interests than with securing or enhancing legitimacy.     

欧洲空间新政策中合作与竞争的理念及实践

欧空局和欧盟一直致力于推动和制定能满足欧洲未来发展需求和符合各成员国利益的欧洲空间政策,2007年欧洲空间新政策就是其重要的成果,一时间合作成为了欧洲空间领域的     

Differentiating and Linking Politics and Adjudication—The Example of European Electricity Policy

The paper analyses how politics and adjudication answer similar questions in the context of policy-making. It contrasts how societal problems are selected, defined, solved and legitimised by both disciplines. We raise these questions in regard to the liberalization of the European Electricity markets. We reconstruct the decision-making process at the political and adjudicative arena taking place in this policy area. By so doing, we elaborate the differences and establish the links between politics and adjudication. We argue that what differentiates these two disciplines constitutes their very links; that is, the adjudicative and political arena are linked precisely because they are different at various level.     

律师刑事辩护与“宽严相济”刑事政策的贯彻实施

一、“宽严相济”刑事政策的基本内涵刑事政策是国家为预防犯罪、减少犯罪以致消灭犯罪而制定的同犯罪行为作斗争的指导方针和对策。作为国家刑事政策重要组成部分的“宽严相济”刑事政策,其基本内涵是,从严的方面而言,即对犯有严重罪行的罪犯处以较重的刑罚,或者对具有从重情节的罪犯,在法定刑幅度内处以较重的刑罚;就宽的方面而言,既指对犯罪分子的惩办必须结合教育改造,给予悔过自新之路,也指对犯有较轻罪行的犯罪分子处以较轻的刑罚或者对具有从轻或减轻情节的罪犯,在法定幅度内或幅度外处以较轻的刑罚,或者依法对罪犯免除处罚①。宽与…     

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’.     

The German Constitutional Court and the European Arrest Warrant: 'Cryptic Signals' from Karlsruhe

In an important 2005 judgment, the German Federal ConstitutionalCourt declared void the German Act that was meant to implementthe European Union Framework Decision on the European ArrestWarrant. However, according to the Constitutional Court, theFramework Decision itself did not necessarily provoke a breachof the German Constitution. If the German legislator had madeadequate use of the tolerance provided by the Framework Decision,he could have avoided any conflict with the Constitution. While,at first sight, the Court's criticism solely seems to referto German national law, a closer look at some statements thatdeal with European law reveals a high potential for future disagreementbetween the German Constitutional Court and European institutions:they do not share the same view as to the development of Europeancooperation in criminal matters.     

美国种族隔离案件裁决与宪法解释方法

宪法解释是法院依照宪法审理案件、体现对社会动态合宪性评价的重要方式。通过对有关种族隔离案件的裁决,美国最高法院在推翻种族隔离、发展民权运动的历程中扮演着重要角色。本文选取三个典型案例——使"平等隔离"理论合宪化的"普莱西案"、推翻"平等隔离"理论的"布朗第一案"和将"平等保护"条款适用于联邦政府的"特区学校第一案"——阐述原旨主义与非原旨主义的论争以及历史解释和结构解释等宪法解释方法的运用。多种宪法解释方法时常结合使用,在具体案件审理中可能需要综合予以考虑。     

Governing Cocaine Supply and Organized Crime from Latin America and the Caribbean: The Changing Security Logics in European Union External Policy

The logics of the European Union’s policy and practices against narcotic drugs in Latin America and the Caribbean (LAC) have undergone a substantial shift the past decade: from development to security. Based on an empirical mapping of the EU’s drug-related projects in LAC, this article argues that an ‘integrated and balanced’ approach to drugs policy is being replaced by a bifurcation between the broader domains of development policy and security policy. Questions are raised as to how the EU’s projects on development and security might counteract one another, and how the Union’s programme aimed at dismantling transnational organized crime along the cocaine trafficking routes to Europe might have unintended consequences. While keeping in mind the shifting tectonics of the international drug prohibition consensus, the article goes on to analyze the increasingly salient security rationale in EU external drugs policy against the backdrop of the EU’s emerging role as a global security actor. In doing so, it touches upon the intrinsic tensions between human rights and (supra) national security.     

从欧盟反恐视角检视共同外交与安全政策的发展与挑战

911事件后,欧盟开始反思对待恐怖主义的态度与方式。如今欧盟反恐政策已成为欧盟共同外交与安全政策要务之一,内部安全领域也建立了庞大的反恐机制。然而恐怖主义的性质在改变并可能与其他全球安全议题挂钩,加上美国推进全球反恐战争的强硬主张,使向来强调柔性强权特质的欧盟陷入两难。后冷战的安全议题具有多面性及复杂性,欧盟必须打破支柱框架,使共同外交与安全政策和反恐的大框架整合。此过程反映出欧盟安全思维的转变,然而,共同外交与安全政策下反恐安排建制的成果与缺失,也突显出欧盟想要建立外交与安全的共同政策仍需努力的事实。