Roland Vaubel, Constitutional courts as promoters of political centralization: lessons for the European Court of Justice, European Journal of Law and Economics, Dec 2009, Vol. 28, Iss. 3; pg. 203 [*]
Abstract (Summary)
A cross-section analysis covering up to 42 countries and including the usual control variables shows that central government outlays as a share of general government outlays are significantly larger if the judges of the constitutional or supreme court are independent of the federal government and parliament and if the barriers to constitutional amendment are high. This evidence is consistent with the view that constitutional judges have a vested interest in centralization or that there is self-selection or both. These insights are used to draw lessons for the reform of the European Court of Justice. Self-selection should be reduced by requiring judicial experience–ideally with the highest national courts. The vested interest in centralization could be overcome by adding a subsidiarity court.
Sau cum ar veni “the use of foreign law & doctrine in American courts”…Ori despre modele de “fédéralisme d’exécution“.
“The federal systems of Switzerland, Germany, and the European Union, for example, all provide that constituent states, not federal bureaucracies, will themselves implement many of the laws, rules, regulations, or decrees enacted by the central “federal” body.”
Supreme Court of United States, 521 U.S. 898, Printz v. United States, 95-1478 Argued: December 3, 1996 — Decided: June 27, 1997. Justice Breyer, with whom Justice Stevens joins, dissenting.
Steven Greer, Andrew Williams, Human Rights in the Council of Europe and the EU: Towards ‘Individual’, ‘Constitutional’ or ‘Institutional’ Justice?, European Law Journal, Oxford: Jul 2009. Vol. 15, Iss. 4;
The European Convention on Human Rights, promulgated by the Council of Europe in 1950, is widely regarded as the world’s most successful experiment in the trans-national judicial protection of human rights. The EU’s much more recent judicial and political interest in human rights has also been widely welcomed. Yet, while the crisis currently afflicting the Convention system has not gone unnoticed, the same cannot equally be said of the difficulties presented by the increasing interpenetration of the two systems. Amongst the few who have shown some interest in these problems, the dominant view is that good will and common sense will provide adequate solutions. We disagree. Instead, we detect a gathering crisis which, unless properly analysed and effectively tackled, will only deepen as the EU’s interest in human rights develops further. In our view, the problem is essentially conceptual and that, ultimately, it boils down to a much-neglected question, simple to state but not so easy to answer: is the trans-national protection of human rights in Europe a matter of ‘individual’, ‘constitutional’ or ‘institutional’ justice?
Legea nr. 298/2008 din 18 noiembrie 2008 privind reţinerea datelor generate sau prelucrate de furnizorii de servicii de comunicaţii electronice destinate publicului sau de reţele publice de comunicaţii, precum şi pentru modificarea Legii nr. 506/2004 privind prelucrarea datelor cu caracter personal şi protecţia vieţii private în sectorul comunicaţiilor electronice, Monitorul Oficial nr. 780 din 21 noiembrie 2008
Directiva 2006/24/CE a Parlamentului European si a Consiliului din 15 martie 2006 privind păstrarea datelor generate sau prelucrate în legătură cu furnizarea serviciilor de comunicatii electronice accesibile publicului sau de retele de comunicatii publice si de modificare a Directivei 2002/58/CE, JO, editie speciala in limba româna, capitol 13 volum 53 p. 51 – 57 [*]
Camera Deputatilor – tabel de concordanta [dispozitiile directivei, respectiv ale legii]
Adrian Vasilache, Legea privind stocarea datelor convorbirilor telefonice si pe internet este neconstitutionala,8.10.2009, Hotnews.ro
***, MCSI analizează decizia Curţii Constituţionale privind Legea reţinerii datelor, 09.10.2009 [*] Despre “infringement“-ul [care in aceasta situatie ne-ar paste], am scris chiar si pe acest blog (aici sau aici). Si anume, sa nu pasaritzi.
Pentru unele argumente privind drepturile fundamentale: CJCE, hotărârea din 10 februarie 2009, C-301/06, Irlanda/Comisia. [*]
James E. Pfander, Member State Liability and Constitutional Change in the United States and Europe, American Journal of Comparative Law, Vol. 51, No. 2, 2003. Available at SSRN.
Abstract:
In a well-known series of recent cases, the Supreme Court of the United States has dramatically narrowed the obligation of states to comply with the rules of accountability that Congress has applied to other aspects of our national commercial life. Although the Court has frequently invoked the Eleventh Amendment to defend its narrowing of state accountability, its decision in Alden v. Maine makes clear that state sovereign immunity rests less on the text of the Constitution than on unwritten structural postulates that it has described as “implicit in the constitutional design.” Across the Atlantic, the European Court of Justice has drawn on similarly unwritten postulates in developing rules to govern member state accountability to central legislative norms. Yet in Europe, the ECJ has pushed in the opposite direction, expanding member state liability beyond the limits specified in the treaties that constitute the European Union.
This paper takes the differing approaches of the Supreme Court and the ECJ as the jumping off point for a rumination on the legitimacy of constitutional change in federal systems. In Europe, a doctrine known as the acquis communautaire has evolved in ways that require newly admitted member states to subscribe not only to the formal terms of the treaties themselves but also to the unwritten rules that the ECJ has announced in working out a jurisprudence of European integration. Avowedly forward looking, the acquis provides an underpinning of legitimacy for the ECJ’s jurisprudence. In effect, the acquis suggests that each member state, upon accession to the Union, must accept both the specific terms of prior judicial decisions and the notion of an evolving jurisprudence. In the United States, by contrast, the Supreme Court’s decisions have looked backwards through the lens of originalism to identify the nature of the accessionary bargain of the original thirteen states. Such a backward-looking originalism corresponds to the emphasis in the American equal-footing doctrine on the nature of the original deal among the states that formed the Union. It also corresponds to the Court’s rejection of the metaphor of living constitutionalism that one finds most famously expressed in Justice Holmes opinion in Missouri v. Holland.
The paper concludes with a suggestion that the acquis, coupled with the relatively dynamic quality of European federalism, may help to explain the ECJ’s evolving jurisprudence of constitutional integration. Europe continues to grow, with the planned accession of ten new member states in 2004 and more on the way. In the United States, by contrast, no new member states have joined the Union since the late 1950s, and the prospects for further growth as a nation seem remote indeed. The closing of the border in the United States may have contributed to the perception that the project of federal integration has been completed. Such developments may have also contributed to a closing of the judicial mind to the possibility of further change in the nature of federal relationships.
E oficial! (sic!; precum incepe astazi redactarea multor stiri de presa, nasha?): un grup de senatori cehi sesizatara Curtea constitutionala din aceeasi republica cu privire la (sau, sa ne exprimam romglez – “pe“)constitutionalitatea numitului tratat cu Constitutia. Precum stiti, instanta s-a pronuntat anterior asupra aceluiasi tratat, insa la un mod general. Precum intelegem, acum e randul unui control constitutional mai amanuntit.
Asadar, stirea:
“Prague – Seventeen Czech senators, mainly from the right-wing Civic Democrats (ODS), today filed a complaint with the Constitutional Court against the amendments “on special mandate” related to the Lisbon treaty, ODS senator Jiri Oberfalzer has told CTK.
The special mandate prevents the Czech government from approving transfer of powers to the EU without the parliament’s agreement.
Apart from ODS senators, the complaint was signed by unaffiliated senator Tomas Toepfer and Liana Janackova, chairwoman for the Party of Free Citizens.
The senators also plan to ask the Constitutional Court again to assess the the Lisbon treaty to reform the EU institutions as such.
The senators’ initiative has been criticised by supporters of a quick ratification of the treaty who say this step is just delaying tactics that would enable President Vaclav Klaus to postpone the signing of the treaty and thus its final ratification.
Klaus is known as a staunch critic of the Lisbon treaty.
Minister for European Affairs Stefan Fuele recently called the senators’ efforts “an unsubstantiated and illogical step” that should not hamper the ratification process.
However, the senators argue that the amendments on the special mandate are not sufficient and that it is at variance with the constitution for the houses of parliament to approve further transfers of power to the EU by less than a constitutional majority.
The senators called on the Constitutional Court to apply the final right to interpret the European legislation related to the Lisbon treaty. They also propose that parliament approve Czech candidates for EU commissioner and judges of the European Court of Justice.
The treaty’s opponents among senators turned to the Constitutional Court already in 2008. Last November the court said it did not find the treaty inconsistent with the Czech constitutional order.
[...]“
Stirea si in Prague Monitor.
…urmare a constatarilor Curtii constitutionale federale din Germania.
Din EuropeanVoice.
A democratic gap that a court cannot fill
By Katrin Auel
When Germany’s Constitutional Court accepted the constitutionality of the Treaty of Lisbon, it again emphasised the European Union’s structural democratic deficit – and it focused its criticism mainly on the European Parliament.
The assembly, it argues, is “neither in its composition nor its position in the European competence structure sufficiently prepared to take representative…majority decisions…on political direction”.
It made it very clear that the responsibility for integration and its democratic legitimation should rest firmly with the representative institutions of member states.
Its critique of the Parliament is partly justified. Elections to it violate the principle that each vote should have an equal weight, since small states enjoy better representation per capita. And, despite a further increase in power if the treaty is ratified, the Parliament will still not be an equal player in the European game.
The far greater problem, though, is that elections to the Parliament are dominated by domestic issues, parties and personalities.
As a result, they do not give citizens the opportunity to express their preferences on EU issues and to hold parties in the Parliament accountable for their performance.
The German court’s demand that the involvement of domestic parliaments in EU-related debates should be guaranteed, while good news as such, will do little to narrow this democratic deficit: unfortunately, when it comes to EU affairs, the electoral connection between citizens and their representatives is not much stronger within member states than it is in Parliament elections.
Throughout Europe, EU issues still generally play only a minor role in national election campaigns. And although national parliaments, frequently depicted as the main victims of the integration process, have become more involved and powerful in EU affairs, much of their EU-related activity takes place in committees or party group meetings, often behind closed doors, while plenary debates on EU issues are few and far between. Thus, domestic politics, too, fails to provide an electoral choice or even genuine public debate on EU issues.
Most mainstream political parties in Europe shy away from politicising European issues, both at the European and the domestic level. This is a rational political choice.
Since party positions on the EU deviate from the classic left-right dimension, they are not easily integrated into the traditional patterns of party competition and may threaten the internal cohesiveness of political parties, something party leaders are keen to avoid.
In addition, research shows that – with very few exceptions – mainstream parties are significantly more supportive of integration than their voters, which makes politicising European affairs a risky strategy. The consequence is a determined de-politicisation of European integration by the mainstream parties. That not only leaves the field wide open to Eurosceptic parties from the fringes of the left and right, but also means that European citizens have few opportunities to voice their opinion on, let alone their opposition to, further integration or specific European policies.
Yet, as a number of referenda and – in particular – the debacle over the European Constitution have amply demonstrated, ‘Europe’ is no longer an issue that the public is willing to leave on trust to its political elites.
The more the effects of European membership have hit home, the more the ‘permissive consensus’, under which a fairly disinterested European public trusted their elites’ decisions on European affairs, has crumbled.
Given the lack of other opportunities, it is therefore hardly surprising that citizens have used referenda to express their unease about EU developments.
Continuing to downplay the salience of European integration, as parties do, will probably increase citizens’ feelings of being ignored; it may even provoke a wholesale rejection of the European project in larger parts of the electorate.
The main problem of democratic legitimacy in the EU is not, then, the lack of power of its parliamentary institutions or the unequal representation of member states’ electorates in the Parliament.
The more important problem for European democracy as a whole is the lack of public debate and political competition on European issues.
The primary responsibility for EU citizens’ lack of ownership of European decisions therefore lies with mainstream parties across Europe.
Katrin Auel is a lecturer and fellow at Oxford University and co-editor of “The Europeanisation of Parliamentary Democracy”.
Cititi despre asta in Deutsche Welle ori in EUObserver, spre exemplu.
Fragmente:
THE reverberations from last month’s ruling by Germany’s Constitutional Court on the European Union’s Lisbon treaty seem to be growing. In effect, the court said that the EU is not democratic enough to support more integration and told Germany, the biggest EU member, to hit the pause button.
The court asked the German parliament to pass a new law to give itself more say over EU affairs. It added that, even if national legislators duly become more active, there are limits to the powers that they can cede to Europe. The EU is not a democratic state and the European Parliament is not a proper legislature, it said. Germany must therefore retain the power to shape “citizens’ circumstances of life” in such areas as criminal law, taxation, education and religion.
The court has a history of approving EU integration with reservations. But this time, in language reminiscent of 19th-century nationalism, it argued that “no uniform European people” could “express its majority will in a politically effective manner”. The European Parliament, in which voters from small countries such as Malta have far more weight than Germans, is not up to the job. So the court wants to ensure that Germany does not surrender to the EU any of the core powers of a democratic state. By its ruling, the court sets itself up as final arbiter of further EU integration (and even of rulings by the European Court of Justice), argues Christian Calliess of the Free University in Berlin. That could threaten the EU’s main function, to make and enforce European law.
Restul puteti citi aici.
Nu ar trebui sa fie chiar o surpriza. Lucrurile (cam) asa stau. Daca statele membre ale UE sunt ze “masters of the treaties” (EC Treaty, evident si in primu’ rand), daca CE/UE n-are kompetenz-kompetenz, daca s-a abandonatara conceptu’ constitutionalicesc precizat prin fostul Tratatul constitutional, daca UE nu e federatie, daca si iar daca… atunci care, pana la urma, e statutul unei instante de contencios constitutional (suna pretentios, nasha?) dintr-un stat membru al UE? Cine are legitimitatea ultima? Si apoi, unde rezida suveranitatea? Si asa mai departe.
Ei bine, Der Spiegel publica un articol realmente interesant. Il redam in intregime:
Last week’s ruling by the German Constitutional Court, coupled with demands by one conservative party for changes to the constitution, may not only jeopardize Berlin’s schedule for the ratification of the Lisbon Treaty. The Karlsruhe ruling also threatens future steps toward European integration.
But the CSU cares little about past errors. Now the idea is to push ahead and “Gauweiler” them! Last Thursday, the politicians from Bavaria decided to follow up their success with a new set of demands. They want the Lisbon Treaty to be ratified only under condition that the new EU law would only be valid in Germany “in accordance with the decision by the German Constitutional Court.” They are now demanding a solution that gives “maximum” parliamentary influence over future EU policy.
The CSU parliamentary group aims to approve an entire catalog of demands at a party meeting in the former Benedictine monastery of Kloster Banz in mid-July. The Bavarians even want to push through a number of changes to the German constitution. One of these would oblige the government to adhere to the parliament’s position papers on European policy. “Our Constitutional Court demands greater rights of co-determination,” says CSU Secretary General Alexander Dobrindt and “we have to comply. It would be good if the decisions of the lower house of parliament, the Bundestag, and Germany’s upper legislative chamber, the Bundesrat, on changes to the EU Treaty were complemented in the future by a referendum.” “People are going to have to make considerable concessions to us to receive the CSU’s support,” says Thomas Silberhorn, CSU parliamentary group spokesman on EU affairs.
Not all of this is realistic. But it’s a political bombshell that could torpedo the German government’s Lisbon rescue concept. If the coalition partners still have to struggle with major stipulations so shortly before the summer break, then there is no chance of doing a quick and quiet fix that would satisfy the Constitutional Court’s criticism of the accompanying law’s flaws.
Tears of Frustration Ahead
In addition to undermining the effectiveness of Germany’s ratification of the Lisbon Treaty, this could tip the scales for the other European countries that have yet to ratify — namely Ireland, Poland and the Czech Republic. The conditions posed by the court in Karlsruhe will make things “much more difficult than we had imagined,” the leaders of the conservative parliamentary group that combines the CDU and CSU admitted late last week.
That’s putting it mildly. The Bavarians’ “Gauweiler” tactics only provide an inkling of the inner political strife that is in store for Germany. Despite the premature cries of triumph among staunch EU supporters in the ruling coalition and in Brussels, last Tuesday’s ruling on the Lisbon Treaty will yet unleash rage and tears of frustration.
Now that the court in Karlsruhe has spelled out Germany’s role in European unification, this heralds the end of a policy of increasing integration. According to the judges, Germany’s future lies not in “a united Europe” — but rather in Germany. In the future, the most powerful EU partner will also be the most difficult one, even if — despite Gauweiler’s legal challenge — it ends up unconditionally ratifying the Lisbon Treaty.
This would be true even without the conditions proposed by the CSU. The German Constitutional Court has found its own unique way of effectively putting the brakes on European policy.
The judges wrote that “if obvious transgressions of boundaries take place when the European Union claims competences,” then they will call for a “review” to “preserve the inviolable core content of the Basic Law’s constitutional identity.”
That is the kind of wording that goes beyond the dreams of Gauweiler and his friends. It simply means that the court assumes the right to single-handedly determine the boundaries of European integration — in a broad sense and, if necessary, in detail.
Member States Remain ‘Masters of the Treaties’
Frank Schorkopf, a former associate of the judge who authored the ruling, Udo Di Fabio, and now a professor of constitutional law in Göttingen, sees this as a “more intelligent version” of a treaty proviso. It is a “supple, dynamic stipulation,” which allows the Constitutional Court greater flexibility and sensitivity, but also places great future demands on the judges because “the court has thus taken on the responsibility of fulfilling this monitoring function,” says Schorkopf.
The court has prescribed a two-fold approach: The parliamentarians have to add far-reaching monitoring rights to the accompanying law criticized by the judges in Karlsruhe, should it come to the extension of Brussels’ competences provided for under the Lisbon Treaty. In addition, the Constitutional Court will ensure that these monitoring rights are appropriately applied.
After all, making additional demands on the accompanying law is “a fine thing,” says Lüder Gerken, director of the Freiburg-based Center for European Policy. But “the key aspect,” says Gerken, is the court’s statements that member states — including of course Germany — “still remain the masters of the treaties” and “therefore must see to it that there are no uncontrolled, independent centralization dynamics” within the EU.
Part 2: Declaration of War on the European Court of Justice
Although the Karlsruhe ruling points out that it is initially the job of lawmakers to fulfill this “responsibility for integration,” the Constitutional Court ultimately sees this as its own task in the future. By doing so, the German Constitutional Court has essentially declared itself the highest supervisory body in conflicts between Germany and the EU, and thus explicitly placed itself above the European Court of Justice (ECJ).
This borders on a declaration of war on the European Court, which sees itself as the only authority capable of ruling on the validity and applicability of EU law. The judges in Karlsruhe have authoritatively decided that they have won the conflict of competence which has been brewing for years between the two top courts.
Admittedly, the court has included a complicatedly worded supplementary declaration on the Lisbon Treaty that reaffirms the supremacy of the ECJ’s judicial authority. But the judges in Karlsruhe did the same thing with this document as they did with a wide range of contentious issues in the Lisbon Treaty text: They interpreted it in a way that makes it compatible with their view of the distribution of power within the EU as an “association of sovereign national states.” The judicial supremacy is only valid within the boundaries defined by the court in Karlsruhe, and the Lisbon Treaty is only compatible with the German constitution within the confines of the Karlsruhe interpretation.
For instance, it explicitly states in the Lisbon Treaty that the procedures of the EU are based on representative democracy, and the European Parliament is composed of “representatives of the union’s citizens.” However, the judges in Karlsruhe argue that contrary to the claim that the Lisbon Treaty “seems to make according to its wording,” the EU Parliament is not a “representative body of a sovereign European people.”
After all, EU members of parliament were not elected according to the principle of electoral equality, in other words, one man one vote, but rather according to “national contingents,” meaning that a Maltese MEP represents 67,000 Maltese, a Swedish MEP has a constituency of 455,000 Swedes, and in Germany the ratio is 1 to 857,000.
‘An Association of Sovereign States’
The court says that this stands in contradiction to the remainder of EU law, which is built around the central idea of prohibiting discrimination based on nationality. According to the concluding statements of the court’s decision, this contradiction can only be explained by the fact that the EU is not a state but rather an “association of sovereign states” and, consequently, there can be no sovereign citizens’ union as well as no completely representative organ in the form of the European Parliament, with the result that the Bundestag must receive substantially more rights. Quod erat demonstrandum.
The Karlsruhe interpretation thus very elegantly demolishes the old European idea that the recognized democratic deficits in the EU would disappear completely of their own accord by enhancing the rights of the European Parliament — and democracy à la Brussels could one day, as MEP Klaus-Heiner Lehne puts it, “assume the role of the national parliaments.”
The European Parliament, as the judges in Karlsruhe clearly state, is terminally undemocratic — at least when measured against the basic concepts of representative democracy. The “small democratic deficit” of the Union, as Schorkopf puts it, has now been exposed as a “large democratic deficit.”
As a result, the German Constitutional Court concludes that even in the future, Brussels cannot be granted greater scope to enact legislation. This means that the plan to grant Brussels the ability to legislate criminal law in a number of EU policy areas will have to be largely dropped due to the risk of it being “without limits.” The court says that Brussels’ authority to enact legislation on criminal law can only be reconciled with German sovereign rights if jurisdictions are narrowly defined.
A “blanket empowerment” contained in the Lisbon Treaty allows the Council of Ministers to expand the list of criminal offenses “on the basis of developments in crime” and grants the EU the power to enact minimum regulations to combat cross-border crime. However, the Karlsruhe judges contend that the blanket empowerment really only applies to the “cross-border dimension of a specific criminal offense.”
Limits to Further Integration
Primarily, however, the judges declared for the first time that it is imperative to maintain the “space for the political formation of the economic, cultural and social living conditions” in the member states. In this national sanctuary, the judges see both “areas which shape the citizens’ circumstances of life, in particular their private spaces of personal responsibility and political and social security, as protected by their fundamental rights,” as well as “political decisions that particularly depend on a previous understanding of culture, history and language and which discursively unfold in a public political arena organized by party politics and parliament.”
According to the judges’ ruling, these “essential areas of democratic organization” explicitly comprise “citizenship, the civil and military monopoly on the use of force, revenue and expenditure, including external financing and all elements of encroachment that are decisive for the realization of fundamental rights, above all as regards intensive encroachments on fundamental rights such as the deprivation of liberty in the administration of criminal law or the placement in an institution.” These important areas also include “cultural issues such as speaking a language, shaping the circumstances concerning family and education, ensuring freedom of opinion, of the press and of association, and accommodating professions of faith or ideology.”
These are the limits that EU member state Germany has to set on future European integration. The “identity” of the German constitutional order may not be damaged by Brussels. Identity takes priority over integration.
Part 3: EU Supporters Are in for a Bumpy Ride
“The European train is no longer headed toward an arbitrary destination with no stops along the way,” says former constitutional judge Paul Kirchhof, adding that the court has marked the Lisbon Treaty as a “clear terminus.” There will be “no European state under the provisions of the German constitution.” And Schorkopf summarizes the ruling in one sentence: “The European Union is a contract-based association of sovereign states, and as such, takes a political back seat.”
And with Germany in the front seat, EU supporters are in for a bumpy ride. No matter what the representatives of the Berlin government decide at the Council of Ministers in Brussels, their decisions will be subjected to three possible tests back home. First, the court wants to ensure that the EU does not overstep its contractual competences. Second, the judges intend to enforce the “subsidiary principal” enshrined in EU law, which largely prohibits Brussels from taking action if a member state can handle the issues in question just as effectively on its own. Third, the judges now reserve the right to conduct an “identity check,” in other words, to test whether Germany still performs the functions that the Constitutional Court itself has defined as national tasks of government.
In order to ensure that the Lisbon Treaty will be treated in future as the Karlsruhe Treaty, the court has submitted a highly unusual request to the Bundestag to pass a new trial law. This could allow every citizen to file a special EU suit with the German Constitutional Court against unpopular European regulations and standards.
Given the new severity on European issues in Karlsruhe, such a procedure could make it almost impossible for Berlin to pursue its own European policy. No matter what German representatives agree to in Brussels, they will now always run the risk of receiving a phone call from Karlsruhe because a clever lawyer like Gauweiler has filed a complaint. This would create an untenable situation for the other 26 member states on the Council.
Limiting Berlin’s Highhandedness
At the same time, however, by more strongly tying the Germans to the political body in Brussels, the court has limited the highhandedness of the German government, which has all too often pushed through political goals that were difficult to achieve back home by going behind the back or against the will of the Bundestag. One example that comes to mind is a statement by the former Economics Minister Wolfgang Clement, a member of the Social Democrats, who voted in favor of an EU software patent guideline in 2005, overriding an explicit decision on the matter by the vast majority of the Bundestag. He said that the will of the German parliament “could not be conveyed internationally.” And the latest violation of the constitutional principles of data self-determination, namely data retention, was also pushed through by the German government, via Brussels, and against the will of the Bundestag.
The European Union directive, by which all European member states must oblige their telecommunications companies to retain data on their customers’ traffic, will presumably be the first test case for the new Karlsruhe rules. The constitutionally guaranteed protection of private space is one of the areas that the court has placed within the context of national identity. And there would be no need to even file a new lawsuit against the directive. After all, a number of constitutional complaints against data retention have been awaiting a decision from Karlsruhe for quite some time.
The judges have never before openly come out against an EU directive. But there’s a first time for everything.
THOMAS DARNSTÄDT, DIETMAR HIPP, RENÉ PFISTER
Decizia privind Tratatul de la Lisabona. AICI [en].
Dispozitivul sau rezumatul:
Legea se cheama, precum eufemistic ne-a obisnuit legiuitorul (sau legislatorul, sic!) francez: Loi favorisant la diffusion et la protection de la création sur internet.
Vorbim despre decizia 2009-580 din 10 iunie 2009. O gasiti aici.
Un lord britanic, Hoffmann, nu E.T.A. Hoffman (cel cu calugarul Medardus si cu motanul Murr), ridica o chestiune interesanta. Ce pacat ca pe la noi inca n-a aparut o astfel de preocupare: acum si CEDO, alaturi de “sora” ei de la Luxembourg (sic!) [n.n. - "sora" pentru ca multi inca le confunda, dar n-are nimic...] impune un “drept federal”?
A senior British judge has accused the European Court of Human Rights of going beyond its jurisdiction and trying to create a “federal law of Europe”.
De la BBC. De asemenea, puteti citi stirea si in The Telegraph, The Spectator, The Guardian, The Daily Mail etc.
In fapt, stirea are originea intr-o adresa a domniei sale din martie a.c. prezentata la “Judicial Studies Board”, pe care o puteti citi de aici.
Judgment Day, The Economist, 26.03.2009.
The Constitutional Court is to rule on the European Union’s Lisbon treaty, which critics say could put the judges out of business. In February it heard arguments that the treaty would give the EU the attributes of a state without making it democratically accountable, and would sap the court’s powers to protect the fundamental rights of Germans. Yet few court-watchers expect the judges to throw Lisbon out. Germany’s EU membership is enshrined in the constitution; and the court has long-standing partnerships with the European Court of Justice (ECJ) in Luxembourg and the European Court of Human Rights in Strasbourg. Lisbon would tilt the balance of power a bit toward Luxembourg, but not as far as its opponents fear. The Constitutional Court is in some people’s eyes Germany’s most powerful institution. The court is revered partly because Germans’ affinity for the rule of law is greater than for democracy, some scholars say. The German constitution, or basic law, which will mark its 60th birthday on May 23rd, is a never-again document. Its first article declares that “human dignity shall be inviolable”. It endows Germany with a weak president and strong state governments. Hans-Jurgen Papier, the court’s president, thinks its reputation for activism is exaggerated.
Numéro: 58/2009
Date: 19-03-2009
Numéro(s) de rôle: 4572
Type: Recours en annulation
Norme(s) contrôlée(s): Décret flamand du 10 octobre 2008 portant assentiment au Traité de Lisbonne modifiant le Traité sur l’Union européenne et le Traité instituant la Communauté européenne, et l’Acte final, signé à Lisbonne le 13 décembre 2007
Dispositif: Rejet du recours
Mots-clés: Conventions internationales – Traité de Lisbonne – Décret d’assentiment.
FR
Care e legatura intre acestea? Ei bine, tocmai o decizie a Curtii Constitutionale din Belgia in respectiva materie.
Numéro: 53/2009
Date: 19-03-2009
Numéro(s) de rôle: 4448 – 4449
Type: Recours en annulation
Norme(s) contrôlée(s): Loi du 11 mai 2007 modifiant la loi du 14 août 1986 relative à la protection et au bien-être des animaux (art. 2, 4 et 5)
Dispositif: Rejet des recours
Mots-clés: Commerce d’animaux – 1. Etablissements commerciaux pour animaux – Interdiction de la vente de chiens et de chats – Loi nouvelle – Disposition transitoire – 2. Elevages de chiens et de chats – Absence d’interdiction de la vente de chiens et de chats. # Droit communautaire européen – Libre circulation des merchandises – Chiens et chats. # Droits et libertés – Liberté de commerce et d’industrie – Restrictions.
Decizia 41/09 [FR] aici.
The Impact of the Human Rights Act on the House of Lords
Sangeeta Shah & Thomas Poole
This article examines the impact of the Human Rights Act on the House of Lords. The HRA came into force on 2 October 2000 and has received much attention from academics, lawyers, politicians and members of the public. But there has been little sustained empirical analysis of its impact. This article, the first of a projected series, aims to start redressing this gap. It presents the findings of a quantitative analysis of the judicial caseload of the House of Lords for the period 1994-2007. It also seeks to contribute to the growing literature on the identity and function of the House of Lords (soon to become the Supreme Court).
Aici.
…sau despre neconstitutionalitatea legii din California pe temeiul libertatii de exprimare, lege ce interzice vanzarea sau inchirierea de jocuri video violente minorilor sub varza de 17 ani si care impune etichetarea unor astfel de jocuri.
Chestiunea e interesanta, in masura in care ne gandim la partea cealalta a Atlanticului; e.g. cauza Omega, in care s-a pronuntat CJCE.
Decizia din SUA aici.
Verhandlungsgliederung zur mündlichen Verhandlung des Zweiten Senats des Bundesverfassungsgerichts am 10. und 11. Februar 2009 über den Lissabon-Vertrag.
Update:
EUObserver: Honor Mahony, German judges express scepticism about EU treaty, 11.02.209.
Urmare a sesizarii CJCE de catre instanta constitutionala belgiana, cu privire la compatibilitatea cu libertati fundamentale si cu Regulamentul 1408/71 a unui regim de securitatate sociala a unei entitati federate din respectivul stat, Curtea de Justitie s-a pronuntat in cauza C-212/06 [RO].
Acum a venit randul pronuntarii Curtii constitutionale, pornind de la argumentele CJCE.
Este vorba despre decizia 11/2009 [FR], intr-un dosar pe care l-am putea denumi “intra-belgian”: 2 comunitati ataca o alta comunitate in fata instantei constitutionale.
Pentru cei mirati de aplicarea sistemului art. 234 CE (al recursurilor prejudiciabile – sic!) instantelor constitutionale nationale, o astfel de speta poate constitui un bun punct de pornire.
Curtea a constatat neconstitutionalitatea legii in cauza, motivand protectia constitutionala a institutiei casatoriei; cel putin asa reiese din stire.
BUDAPEST, Hungary (AP) — Hungary’s Constitutional Court says it has annulled a law giving rights to domestic partners because it would diminish the importance of marriage.
The law, passed by parliament a year ago, would have allowed unmarried or gay couples to register their domestic relationships beginning Jan. 1, 2009.
The court says the new legislation is unconstitutional because it would give unmarried heterosexual couples practically the same rights as married ones, “downgrading” the institution of marriage.
At the same time, the court says, in its decision announced Monday, that a law allowing domestic partnerships for gay couples would not be unconstitutional — as long as it applied only to them and not to heterosexual couples, as well.
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Le Conseil constitutionnel valide la faculté de départ à la retraite à 70 ans |
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Par décision du 11 décembre 2008, le Conseil constitutionnel a statué sur la loi de financement de la sécurité sociale pour 2009 (Sénat, projet de loi, 27 nov. 2008, TA n° 15) |
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| Source Cons. constit., décision n° 2008-571 DC, 11 déc. 2008, communiqué |
De aici.
Textul deciziei aici.
16. Considérant que le I de l’article 90 de la loi déférée modifie l’article L. 1237-5 du code du travail afin de reporter de cinq années l’âge à partir duquel l’employeur peut contraindre le salarié à faire valoir ses droits à la retraite ;
17. Considérant que les requérants font grief à ces dispositions d’être étrangères au domaine des lois de financement de la sécurité sociale, de priver de garanties légales les exigences du onzième alinéa du Préambule de la Constitution du 27 octobre 1946 relatives au droit à la santé et au droit au repos et de porter atteinte au principe d’égalité devant la loi ;
18. Considérant, en premier lieu, que la prolongation d’une activité salariée au-delà du temps nécessaire pour obtenir une pension de retraite à taux plein se traduit par un effet direct sur les dépenses comme sur les recettes des régimes obligatoires de base ; que, dès lors, les dispositions contestées peuvent figurer dans une loi de financement de la sécurité sociale ;
19. Considérant, en deuxième lieu, que les dispositions de l’article 90 de la loi déférée se bornent à permettre aux salariés de prolonger chaque année, de manière volontaire, leur activité jusqu’à cinq années supplémentaires ; que, dès lors, elles ne méconnaissent pas les exigences du onzième alinéa du Préambule de 1946 ;
20. Considérant, en troisième lieu, que le principe d’égalité ne s’oppose ni à ce que le législateur règle de façon différente des situations différentes, ni à ce qu’il déroge à l’égalité pour des raisons d’intérêt général, pourvu que, dans l’un et l’autre cas, la différence de traitement qui en résulte soit en rapport direct avec l’objet de la loi qui l’établit ; qu’en l’espèce, les dispositions contestées, qui ne créent aucune différence de traitement entre les salariés, ne méconnaissent pas le principe d’égalité ;
Pentru ca am ramas “restantieri” cu stirea acestea.
Textul (incomplet) al deciziei se poate citi aici. In rezumat, tratatul este conform cu constitutia; sau invers, ar zice unii.
… prezentat in fata Curtii Constitutionale a respectivului stat.
Speech of the President of the Republic at the Constitutional Court Proceedings on the Lisbon Treaty
“I am at this hearing, because the Constitutional Court asked me to present my viewpoint on the proposal made by the Senate of the Czech Republic Parliament to have the Lisbon Treaty, modifying the Treaty on the European Union and the Treaty Establishing the European Community as agreed in Lisbon on 17 December 2007, examined in order to assess, whether or not it is compatible with the Czech Republic’s Constitution. [...] The Lisbon Treaty thus violates the constitutional principle of the sovereignty of the Czech people.”
