The Max Planck Handbooks in European Public Law: Volume III: Constitutional Adjudication: Institutions (Max Planck Handbook Public Law In Europe)

Description

The Max Planck Handbooks in European Public Law describe and analyse public law of the European legal space, an area that encompasses not only the law of the European Union but also the European Convention on Human Rights and, importantly, the domestic public laws of European states. Recognizing that the ongoing vertical and horizontal processes of European integration make legal comparison the task of our time for both scholars and practitioners, the series aims to foster the development of a specifically European legal pluralism and to contribute to the legitimacy and efficiency of European public law. The first volume of the series began this enterprise with an appraisal of the evolution of the state and its administration, offering both cross-cutting contributions and specific country reports. The third volume (the second in chronological terms) continues this approach with an in-depth appraisal of constitutional adjudication in various and diverse European countries. Fourteen country reports and two cross-cutting contributions investigate the antecedents, foundations, organization, procedure, and outlook of constitutional adjudicators throughout the Continent. They include countries with powerful constitutional courts, jurisdictions with traditional supreme courts, and states with small institutions and limited ex ante review. In keeping with the focus on a diverse but unified legal space, each report also details how its institution fits into the broader association of constitutional courts that, through dialogue and conflict, brings to fruition the European legal space. Together, the chapters of this volume provide a strong and diverse foundation for this dialogue to flourish. cover Half title title page copyright preface Table of contents Table of Cases xv Table of Legislation xliii List of Contributors lxv 1: Constitutional Adjudication in the European Legal Space 1 A. The Setting of this Volume 1 B. What’s New? 4 C. The European Verfassungsgerichtsverbund 8 Constitutional Adjudication 12 E. Backlash Against Constitutional Adjudication 15 F. The Logic of this Volume 15 2: The Austrian Constitutional Court 19 A. Introduction 20 B. Creation and Development 21 1. The Roots of Constitutional Adjudication in the Nineteenth Century 21 2. The Austro- German Constitutional Court 26 the Federal Constitution of 1920 27 Failure of Constitutional Adjudication 32 C. The Current Legal Design in Context 34 1. Structural Features of Austrian Constitutional Adjudication 34 2. The Organization of the Constitutional Court 38 Adjudication 40 D. The Role and Functions of Constitutional Adjudication 55 1. The Relationship with the Legislature 55 The Constitutional Court and Civil, Criminal, and Administrative Jurisdiction 56 Compliance with the Decisions of the Constitutional Court on the Part of Courts and Administrative Authorities 59 E. Evaluation 59 1. The Public Perception of the Constitutional Court 59 2. The Reception of Constitutional Adjudication by Legal Scholars 60 3. The Role and Self- Understanding Within the European Legal Space 65 3: The Belgian Constitutional Court 71 A. The Creation and Development of Constitutional Jurisdiction in Belgium 72 1. 1831 and the Creation of the Belgian State 73 2. Further Development after the Second World War 75 3. The Debate of the 1970s Sparked by the Court of Cassation 76 4. The Creation of the Court of Arbitration in 1983 77 B. The Belgian Constitutional Court 79 1. A Permanent and Independent Court 79 2. The Composition and Organization of the Court 80 3. The Jurisdiction of the Court 83 4. The Proceedings Before the Constitutional Court 97 5. The Decisions and Their Effects 108 C. The Relationship with Other Courts 114 1. The Constitutional Court, the Court of Cassation, and the Council of State 114 2. The Constitutional Court, the CJEU, and the ECtHR 117 4: The Constitutional Court of Czechia 119 A. Introduction 120 B. The Historical Context 122 1. The Interwar Era (1920– 1939): A Lost Opportunity 122 2. The Reichsprotektorat Böhmen und Mähren (1939– 1945): An Abrupt End 125 3. The Post- War Desuetudo (1945– 1989): A Non- Justiciable Constitution 125 4. The Federal Intermezzo (1989– 1992): Setting the Stage 126 5. The Czech Constitutional Court (1993 until Today): The Rise to Power 127 C. The Institutional Design of the Czech Constitutional Court 128 1. Composition 128 2. The Selection of Justices 130 3. The Profile of the Justices 134 4. Judicial Independence 137 5. Law Clerks 140 6. The Secretariat 141 D. The Jurisdiction of the Czech Constitutional Court 143 1. Abstract Review 143 2. Concrete Review 144 3. Individual Constitutional Complaints 145 4. Separation- of- Powers Disputes 147 5. Ex Ante Review of International Treaties 149 6. Ancillary Powers 149 7. Implied Powers 151 E. The Proceedings Before the Czech Constitutional Court 152 1. Basic Principles and Basic Data 152 2. Decision Rules 154 3. Separate Opinions 157 4. Case Assignment and the Role of the Judge- Rapporteur 158 5. The Role of the President of the Constitutional Court 158 F. The Taxonomy of the Rulings of the Czech Constitutional Court and Their Features 160 1. A Brief Taxonomy of Rulings and Verdicts 160 2. The Effects of the Constitutional Court’s Rulings 161 3. The Publication of the Constitutional Court’s Rulings 163 4. Style, Form, and References 165 G. The Interaction of the Czech Constitutional Court with Domestic and Supranational Actors 166 1. The Constitutional Court and the Parliament 167 2. The Constitutional Court and the Executive 168 3. The Constitutional Court and Ordinary Courts 169 4. The Constitutional Court and the ECHR 172 5. The Constitutional Court and EU Law 175 H. The Future of the Czech Constitutional Court— ‘Winter is Coming’ 178 5: Constitutional Review in Finland 183 A. The Origins and Development of Constitutional Review in Finland 183 1. Finland as an Autonomous Grand Duchy 183 2. The Form of Government of 1919 186 New Constitution of 2000 188 B. The Present System of Constitutional Review 193 1. Hybrid Models of Constitutional Review 193 2. Ex Ante Review by the Constitutional Law Committee 193 Constitutional Review 202 4. Ex Post Judicial Review 203 C. Elements of Evaluation 206 Relations Between Parliament and the Judiciary: Judicial Review as a Last Resort 206 2. Signs of Juridification 213 3. The Role of German- Oriented Doctrine 214 D. Conclusion 219 6: Constitutional Justice in France 223 A. Introduction 224 B. Formation and Development 226 1. Constitutional Justice During the Ancien Régime 227 2. The Revolution and the Question of Upholding the Constitution 229 3. Constitutional Justice Between Caesarism and Constitutional Monarchy 230 4. Constitutional Justice and the Democratic Republic 232 C. The Constitutional Council 235 Constitutional Miracle 235 2. The Organization of the Constitutional Council 237 3. The Jurisdiction of the Constitutional Council 243 4. The Modalities and Effects of the Constitutional Review of Statutes 252 D. The French System of Constitutional Justice 267 Jurisprudence and in the Constitutionalization of the Law 268 European Union: A Competitive Relationship 273 E. Conclusion 277 7: The German Federal Constitutional Court 279 A. Continuities and Contextuality: The Development of Constitutional Adjudication in Germany 280 1. The Path to Becoming the ‘Leading Court’: Precursors and Models 280 2. The Federal Constitutional Court as the Court of a New Beginning? 284 3. The Crises and Challenges of a Founding Court 286 B. The Current Legal Setting: Chamber Court— Citizens’ Court— Court of Standards 299 1. The Institution: A Constitutional Organ and Court 299 2. ‘Citizens’ Court Plus’: The Constitutional Complaint as a Core Resource 313 3. The Decision: A Claim to Development and Rationalization 329 C. The Role and Function of the Federal Constitutional Court: A Reviewing or Guiding Authority? 339 1. The Influence on the Specialized Courts 339 2. Guidance Effects vis- à- vis the Legislative Branch 340 3. The Federal Constitutional Court as an Instrument of the Opposition 343 D. Evaluation: Guardians of the Basic Law or Guardians of Constitutional Law? 345 1. The Transformation of Statehood and the Precarious Resource of Legitimacy 345 2. Diversity and Decentralization: The End of Interpretational Authority over the Protection of Fundamental Rights? 348 3. The Necessity of a New Theory of Institutions in the European Legal Space 351 4. Does the Federal Constitutional Court Need to Reinvent Itself? 353 8: The Constitutional Court of Hungary 357 A. Origins and Development 358 1. Context and Antecedents— the Hungarian Constitutional Court and the Third Generation of European Constitutional Courts 358 2. The History of the Constitutional Court 369 B. The Current Legal Situation and its Context 394 1. The Institution 394 2. The Procedure Before the Constitutional Court 402 the Constitutional Court and its Management 407 4. The Ruling 418 C. The Role of Constitutional Adjudication in the Hungarian Political System 437 1. The Relationship Between the Constitutional Court, Parliament, and Government 437 2. The Relationship of the Constitutional Court with Ordinary Courts 442 3. The Ideals and Accomplishments of the Constitutional Court Concerning its Political Role and the Doctrine of Constitutional Law 443 D. Evaluating the Court’s Development at a Historical Milestone 445 9: The Italian Constitutional Court 447 A. Genesis and Development 448 1. The Court in the Deliberations of the Constituent Assembly (1946– 1948) 448 2. The Establishment of the Constitutional Court (1948– 1956) 453 3. The Development until Today (1956– 2018) 455 B. The Constitutional Court Today 456 1. The Institution 456 2. The Principle of Collegiality 460 3. The Types of Proceedings 460 4. The Decision 476 C. The Role and Function of Constitutional Jurisdiction 482 1. The Constitutional Court and the Legislative Branch 482 2. The Constitutional Court and the Judiciary 485 3. The Constitutional Court and the Italian Parliamentary System 486 4. The Constitutional Court and Regionalism 488 D. Italian Constitutional Justice Within the European and International Legal Space 490 1. The Marginalization of the Court with Regard to Human Rights Protection 491 2. The Constitutional Court at the Service of Union Law and the ECHR 493 Guide for the Courts Within the European Legal Space 496 E. Conclusion 503 10: The Constitutional Court of the Republic of Latvia 505 A. A Short Introduction into Latvian Constitutional History 506 1. Historical Challenges to Latvia’s Basic Norm 507 2. The Constitutional Identity of Latvia 508 B. The Origins and Development of Constitutional Review in Latvia 510 the Adoption of the Satversme 510 of the Satversme 512 3. The Stages of Development of Constitutional Review 514 C. The Institution of Constitutional Review 520 1. The Institution of the Constitutional Court 520 2. The Jurisdiction of the Constitutional Court 533 3. Models of Constitutional Review 538 4. Examining Cases at the Constitutional Court 542 D. The Role of the Constitutional Court in Democratic Society 548 1. The Constitutional Court as a Means for Protecting Human Rights 548 2. The Role of the Constitutional Court in Improving Legal Acts 550 3. The Role of the Constitutional Court in Resolving Conflicts of Jurisdictions 553 4. The Role of the Constitutional Court in the Process of Democratization 554 E. The Case Law of the Constitutional Court as Part of a Wider European Legal Discourse 557 1. The Reintegration into the Family of Western Democratic Legal Orders 557 2. International Law and European Law 559 3. The Economic Crisis and the Constitutional Court 561 4. The Sustainability Principle 561 5. Citizenship Issues 562 6. The Constitutional Court as an Effective Legal Remedy for Protecting Human Rights Within the Meaning of the ECHR 562 11: Constitutional Adjudication in the Netherlands 565 A. Introduction 566 B. Genesis and Development 568 1. The Development of the Relevant Provisions of the Grondwet 568 2. The Debate on the Prohibition to Review Acts of Parliament for Constitutionality 575 3. The Reception of the Review of Acts of Parliament Against Treaties and Decisions of International Organizations 582 C. The Actual Legal Setting in Context 585 1. The Judicial Competence to Review Legislative Acts 585 2. Institutional Aspects 601 D. The Roles and Functions of Constitutional Review 610 1. Ordinary Courts as Constitutional Courts 611 2. Ordinary Courts as Agents of the EU Legal Order 611 3. Ordinary Courts as Agents of the International Legal Order 613 E. Aspects of Evaluation 614 1. Shifting the Focus from the Grondwet to the Constitution 614 2. The Future of Constitutional Review in the Netherlands 615 3. The Netherlands Within the European Legal Space 616 12: The Polish Constitutional Tribunal 619 A. The Historical Development 620 1. The Origins in the First and Second Polish Republic 620 2. The Rejection in the Communist State (1945– 1989) 621 3. The Transformative Role of Constitutional Jurisprudence (1989– 1997) 622 4. The Constitutional Tribunal and the Creation of the New Constitution 623 B. The Constitutional Tribunal as an Institution 625 1. The Composition of the Constitutional Tribunal 625 2. Electing the Justices of the Constitutional Tribunal 626 3. Judicial Profiles 628 4. Judicial Independence 629 5. The Office of the Constitutional Tribunal 632 C. The Different Proceedings before the Constitutional Tribunal 632 1. Judicial Review 633 2. Other Types of Proceedings before the Constitutional Tribunal 639 D. Proceedings before the Constitutional Tribunal 640 1. The Course of Proceedings 640 2. General Procedural Principles 641 E. The Judgments of the Constitutional Tribunal 643 1. ‘Simple Judgments’ 644 2. ‘Interpretative Judgments’ 645 3. ‘Area Judgments’ 646 4. ‘Application Judgments’ 647 5. ‘Subsequent Unconstitutionality’ 647 6. ‘Indicative Judgments’ 648 F. The Role and Tasks of the Constitutional Tribunal 649 1. The Constitutional Tribunal and the Legislature 649 2. The Constitutional Tribunal and the Courts 651 3. The Constitutional Tribunal and Academia 654 4. The Constitutional Tribunal and European Law 656 5. The Evolution of the Position of the Constitutional Tribunal 657 G. The Crisis of Constitutional Adjudication in Poland 658 1. The Genesis of the Crisis 658 2. The Dispute over the Constitutional Tribunal 660 3. The Constitutional Crisis 669 13: The Portuguese Constitutional Court 673 A. Formation and Development 674 1. Constitutional Review in Portugal and Europe 674 2. The Review for Constitutionality as a Self- Evident Practice 677 3. Constitutional Review in Constitutional Texts 680 4. The Founding of the Portuguese Constitutional Court 685 B. The Current Legal Design in Context 686 1. The Constitutional Court as an Institution 686 2. The Types of Proceedings 689 3. The Effects in Law of Judicial Review 700 C. The Role and Functions of Constitutional Adjudication 702 1. The Relationship with Political State Bodies 702 2. Constitutional Adjudication and the Ordinary Courts 706 D. Aspects of Evaluation 708 1. The Public Perception of the Constitutional Court 708 2. Constitutional Adjudication in National Constitutional Scholarship 711 3. The Understanding of the Role Within the European Legal Space 714 14: The Spanish Constitutional Tribunal 719 A. Genesis and Development 720 1. Historical Precursors 720 2. The Spanish Model of the Judicial Protection of the Constitution 724 B. The Current Legal Configuration in Context 728 1. The Institution 728 2. Procedure 731 3. The Decision 750 C. The Role and Functions of Constitutional Adjudication 757 1. The Relationship with the Political State Bodies 757 2. Constitutional versus Ordinary Jurisdiction 759 3. The Poder Judicial, and Arguing with the Constitution 763 4. Constitutional Adjudication in Constitutional Scholarship and Theory 764 D. Aspects of Evaluation 766 1. The Work of the Tribunal Constitucional and its Public Perception 766 2. The Tribunal Constitucional and Politics 770 Legal Space 772 4. Final Remarks 776 15: Constitutional Adjudication in Switzerland 779 A. The Development and Characterization of Constitutional Adjudication in Switzerland 780 1. Switzerland: A State Without Constitutional Adjudication? 780 of the Federal State 782 3. The Protection of Constitutional Rights Through the Public Law Appeal 786 Perspective 791 5. Restrictions on Constitutional and Administrative Adjudication 794 to Federal Legislation 797 at a Glance 800 B. The Federal Supreme Court as the Supreme Judicial Authority and Main Organ of Constitutional Adjudication: The Current Legal Design in Context 800 1. The Position of the Federal Supreme Court and its Justices 800 2. Procedure and Decision- Making 808 C. The Roles and Functions of Constitutional Adjudication 819 1. The Federal Supreme Court and its Place in the Constitutional Fabric 819 2. The Relationship with the Federal Assembly and Federal Council 819 3. The Relationship with the Cantons 821 4. Interactions in the Federalist Fabric Based on the Separation of Powers 822 5. New Conflicts in the Relationship with the Constitutional Legislator 824 6. The Relationship with other Judicial Authorities 826 7. Milestones of Past and Recent Constitutional Case Law 828 D. Aspects of Evaluating Federal Supreme Court Practice 831 1. Restraint and Moderate Development of the Law 831 Democracy: Relativizing the ‘Immunity’ of Federal Legislation 832 3. The Federal Supreme Court in the European Legal Space 836 E. Concluding Remarks 838 16: The Influence of the United States Supreme Court on Judicial Review in Europe 841 A. Introduction 842 B. The United States Supreme Court and ‘Decentralized’ Judicial Review 843 C. The Supreme Court and Judicial Review in the Early Nineteenth Century 847 D. Early Influence in Europe— The Example of Germany 847 E. The Supreme Court’s ‘Lochner Era’ Jurisprudence and its Influence in Europe 850 1. Acceptance in Norway 851 2. Rejection in France and Elsewhere in Europe 852 F. Hans Kelsen and ‘Centralized’ Judicial Review 856 G. European Constitutional Courts of the Postwar Era 858 1. Germany 860 2. Italy 862 H. Constitutional Review in France 864 I. The New Constitutional Tribunals in Eastern Europe after 1989 866 1. Constitutional Review in Poland 867 2. Rejecting American Advice on Social and Economic Rights 869 3. The Activist Decade of the Hungarian Constitutional Court 871 J. The Influence of the American Supreme Court on Decisions of European Courts 872 1. The Influence of American Supreme Court Decisions on European National Courts and on the European Court of Human Rights 873 2. The Court of the European Union: The ECJ 881 K. Conclusion 886 Index 889