National constitutional identity and European integration
著者
書誌事項
National constitutional identity and European integration
（Law and cosmopolitan values, 4）
Intersentia, c2013
- : hbk
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注記
Includes bibliographical references
内容説明・目次
内容説明
'National constitutional identity' has become the new 'buzz word' in European constitutionalism over the past few years. Much has been written about the concept involving the Member States' national constitutional identities: it has been welcomed for (finally) accommodating constitutional particularities in EU law, demonised for potentially disintegrating the EU, and wielded as a 'sword' by certain constitutional courts. Scholars, judges and advocates general have rendered the concept currently so fashionable and yet so ambivalent that an in-depth analysis putting some order into the intense debate over constitutional identity is warranted. This collection brings together a series of contributions from the perspective of both scholars and judges in order to shed some light into the dark corners of constitutional identity. To this end a threefold approach has been followed: a conceptual or philosophical approach, an approach based on EU law, and an analysis of the case-law of several European courts. First the book explores what constitutional identity means and who decides on it.
The next contributions analyse (and at times unveil) the areas that might collide or at least interact with constitutional identity. Among other issues the authors touch upon EU law primacy, EU citizenship as a 'hard core' in opposition to the Member States' identities, the Charter of Fundamental Rights and its Article 53, and EU criminal law and the essential functions of the State. Finally, the chapters dealing with the case-law of European courts on national constitutional identity include the perspective of various national constitutional courts, such as those of Eastern and Central European Member States, the Court of Justice of the European Union, and the much less analysed European Court of Human Rights. With contributions by Alejandro Saiz Arnaiz and Carina Alcoberro, Jose Luis Marti, Constance Grewe, Roberto Toniatti, Rafael Bustos Gisbert, Giuseppe Martinico. Silvio Gambino, Monica Claes, Aida Torres Perez, Maribel Gonzalez Pascual, Daniel Sarmiento, Christian Tomuschat, Hector Lopez Bofill, Joel Rideau, Pablo Perez Tremps, Laurence Burgorgue-Larsen and Luis Lopez Guerra.
目次
Introduction Why Constitutional Identity suddenly Matters: A tale of Brave states, a Mighty Union and the Decline of sovereignty alejandro saiz arnaiz and Carina alcoberro llivina 1. part i: the Concept of National Constitutional identity 1.1. From sovereignty to identity 1.2. sketching scope and meaning of the concept 2. part ii: National Constitutional identity in the aftermath of the Lisbontreaty 3. part iii: National Constitutional identity in the Jurisprudence of european Courts Chapter 1 two Different Ideas of Constitutional Identity: Identity of the Constitution v. Identity of the People Jose luis Marti 1. introduction 2. two ideas of 'Constitutional identity' 2.1. The identity of the Constitution 2.2. The identity of the people 3. Conclusion Chapter 2 Methods of Identification of national Constitutional Identity Constance grewe 1. introduction 2. The typology of Constitutional amendments 2.1. The substantial conception of the revision 2.1.1. textual analysis 2.1.2. Constitutional case-law 2.2. The procedural conception 2.2.1. textual analysis2 2.2.2. Case-law 2.3. The formal conception 3. The introductory provisions of Constitutions 3.1. The content of the 'introductory part' 3.1.1. institutional or 'sovereignist' content 3.1.2. Constitutionalist or substantive content 3.2. The preferences highlighted in the Introductions 3.2.1. textual analysis 3.2.2. Case-law 7 4. Conclusion Chapter 3 sovereignty Lost, Constitutional Identity Regained roberto toniatti 1. introduction: ambiguity and ambivalence in the process of supranational Constitutionalintegration 2. The Waning of sovereignty 3. The Blooming of identity 3.1 National identity as constitutional identity 3.2 testing the identity clause in court: an 'invitation to struggle' 4. Final remarks Chapter 4 national Constitutional Identity in european Constitutionalism: Revisiting the tale of the emperor's new Clothes in spain? rafael Bustos gisbert 1. two sides of the same Coin: article 4(2) teu and the 'european Clauses' in National Constitutions 2. The Most important Constitutional Changes provoked by european integration: a Brief overview 2.1. legal system 2.1.1. The extra-constitutional logic of the eu legal system 2.1.2. The absence of an institution in charge of resolving competence conflicts 2.2. The form of government 2.3. The allocation of powers 2.4. The centralised model of judicial review 2.5. The constitutional regulation of the economy 2.6. preliminary title of the Constitution 3. is the spanish Constitution Naked? are We Witnessing another dangerous Case of the emperor's Clothes? Chapter 5 What Lies Behind Article 4(2) teU? giuseppe Martinico 1. goals and structure 2. article 4(2) teu as the apex of a Constitutional Crescendo 3. The struggle for taksis 4. The Maastricht treaty as a turning point in the relationship between the eCJ and National governments 5. The Charter of Fundamental rights of the eu 6. Final remarks Chapter 6 national Identity: trump Card or Up for negotiation? Monica Claes 1. introduction 2. The european discovery of the Concept of 'Constitutional identity' 2.1. The advent of 'national identity' 2.2. a new context 2.3. The embracement of 'constitutional identity' 3. 'National and Constitutional identity' in the Case-law of the Constitutional Courts 3.1. National identity in the case-law of the european Court 4. Negotiating National identity 4.1. Modalities of the negotiations on national identities 5. Conclusions Chapter 7 Constitutional Identity and Fundamental Rights: The Intersection between Articles 4(2) teU and 53 Charter aida torres perez 1. introduction 2. The substantive perspective 3. The Functional perspective 3.1. The primacy of eu law 3.2. The uniform application of eu law 4. The procedural perspective 5. Concluding remarks Chapter 8 Criminal Law as an essential Function of the state: Last Line of Resistance? Maribel gonzalez pascual 1. Criminal law, essential state Functions and National Constitutional identity 2. european Criminal law: institutional Framework 3. Mutual recognition of Judgments in Criminal Matters 4. Criminal law as the last line of resistance: Myth or reality? Chapter 9 The eU's Constitutional Core daniel sarmiento 1. The eu's legal identity and the Three Normative ideals 2. Channelling identity through european Citizenship 3. The Constitutional Core of eu law: Foundation, autonomy and Content 3.1. Foundation and autonomy 3.2. The protected content of the constitutional core 3.2.1. protection of the existence of the statute 3.2.1.1. No arbitrary de iure deprivation of the statute 3.2.1.2. No arbitrary de facto deprivation of the statute 3.2.2. protection of the substance of the rights attached to the statute: no strategic/structural restriction of fundamental rights 3.2.2.1. strategic breach 3.2.2.2. structural breach 3.3. The constitutional core as a living instrument, and the inspiring force of the three normative ideals 4. response to the Critics 4.1. Competence Creep 4.1.1. The critique 4.1.2. response 4.2. legitimacy 4.2.1. The critique 4.2.2. response 4.3. subsidiarity 4.3.1. The critique 4.3.2. response Chapter 10 The Defence of national Identity by the German Constitutional Court Christian tomuschat 1. an obsession - or a serious Concern? 2. The Jurisprudence of the german Constitutional Court 2.1. solange i 2.2. solange ii 2.3. The Maastricht Judgment 2.4. The Banana Market decision 2.5. The lisbon Judgment 2.6. The Honeywell decision 2.7. The Judgment on the Euro Crisis 3. Concluding observations Chapter 11 What is not Constitutional Pluralism in the eU: national Constitutional Identity in the German Lisbon Judgment Hector lopez Bofill 1. introduction 2. The Member state as the 'primary democratic space' 3. The lisbon Judgment of the german Constitutional Court as a 'Non pluralist Constitutional'approach 3.1. Constitutional identity and the eternity clause 3.2. Citizenship 3.3. Civil and military monopoly on the use of force and deprivation of liberty in the administration of criminal law 3.4. revenue and expenditure including external financing 3.5. Cultural issues such as language and the shaping circumstances concerning family and education 3.6. Freedom of opinion and press. Freedom of association. The dealing with the profession of faith or ideology 4. plural Constitutional identities before the euinstitutions are not Constitutional pluralism in the eu 5. eulaw primacy versus Constitutional identity 6. Final remarks Chapter 12 The Case-law of the Polish, Hungarian and Czech Constitutional Courts on national Identity and the 'German Model' Joel rideau 1. The emergence of the Notion of Constitutional identity in the Case law of the Constitutional Courts 2. The 'german Model' 2.1. solange i and solange ii 2.2. Maastrichttreaty 2.2.1. The control of acts of the european institutions 2.2.2. The democratic principle 2.3. The decision on the lisbon treaty 2.3.1. The defence of the democratic principle 2.3.2. The principle of attribution of competences and its limits 2.3.3. The control of the respect of the limits 2.4. The order of 6 July 2010: concrete implementation of the control 2.5. The order of 27 october 2011 2.6. The decision of 7 september 2011 3. The adoption of the 'german Model' by the polish and Hungarian Constitutional Courts 3.1. poland 3.1.1. The decision on the accession treaty 3.1.2. The european arrest Warrant 3.1.3. The decision on the lisbon treaty 3.2. Hungary 3.2.1. The decision on the lisbon treaty 3.2.2. present concerns 4. The relative distancing by the Czech republic 4.1. The limits to the transfers of competences 4.2. lisbon i 4.2. lisbon ii 4.3. The 2012 decision 5. The recognition of National identity by euprimary law 5.1. National identity - a european notion 5.2. The convergence of national identity and of constitutional identities 6. Conclusion Chapter 13 national Identity in spanish Constitutional Court Case-law pablo perez tremps 1. approximations in defining Concepts and Content 1.1. introduction 1.2. traditional Content: Freedom and democracy 1.3. additional Content of National identity 1.4. The 'guarantee of the state' 2. The Constitutional Court's definition of identity 2.1. The formal Framework 2.2. The case- law content of 'identity': guaranteeing the 'state' by safeguarding its sovereignty Chapter 14 A Huron at the Kirchberg Plateau or a Few naive Thoughts on Constitutional Identity in the Case-law of the Judge of the european Union laurence Burgorgue-larsen 1. Nihil Novi i 2. Nihil Novi ii Chapter 15 national Identity and the european Convention on Human Rights luis lopez guerra 1. relative absence of a provision on National identity in the european Convention on Humanrights 2. National identity and Margin of appreciation 3. some aspects of National identity: politics, transitional situations, traditions and Culture 3.1. politics, national identity and electoral regulation 3.2. right of property: transitional situations 3.3. traditions and culture 4. Constitutional identity. apositive Consideration 5. limits to the relevance of Constitutional identity 6. Constitutional identity as an aggravating Circumstance? 7. National identity in the absence of a Nation? A Brief Author CV
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