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The National Courts' Mandate in the European Constitution

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ISBN13: 9781841134765
ISBN: 1841134767
Published: March 2006
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £95.00



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The reform of the European Constitution continues to dominate news headlines and has provoked a massive debate, unprecedented in the history of EU law. Against this backdrop Monica Claes' book offers a ""bottom up"" view of how the Constitution might work, taking the viewpoint of the national courts as her starting point, and at the same time returning to fundamental principles in order to interrogate the myths of Community law. Adopting a broad, comparative approach, she analyses the basic doctrines of Community law from both national constitutional perspectives as well as the more usual European perspective. It is only by combining the perspectives of the EU and national constitutions, she argues, that a complete picture can be obtained, and a solid theoretical base (constitutional pluralism) developed.

Her comparative analysis encompasses the law in France, Belgium, Denmark, the Netherlands, Germany, Ireland, Italy and the United Kingdom and in the course of her inquiry discusses a wide variety of prominent problems. The book is structured around three main themes, coinciding with three periods in the development of the judicial dialogue between the ECJ and the national courts. The first focuses on the ordinary non-constitutional national courts and how they have successfully adapted to the mandates developed by the ECJ in Simmenthal and Francovich. The second examines the constitutional and other review courts and discusses the gradual transformation of the ECJ into a constitutional court, and its relationship to the national constitutional courts.

The contrast is marked; these courts are not specifically empowered by the case law of the ECJ and have reacted quite differently to the message from Luxembourg, leaving them apparently on collision course with the ECJ in the areas of judicial Kompetenz Kompetenz and fundamental rights. The third theme reprises the first two and places them in the context of the current debate on the Constitution for Europe and the Convention, taking the perspective of the national courts as the starting point for a wide-ranging examination of EU's constitutional fundamentals. In so doing it argues that the new Constitution must accommodate the national perspective if it is to prove effective.

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Subjects:
EU Law
Contents:
Introduction
The Judge, his Mandate, the National Constitution and European Union Law
I Setting the Stage
II The Theoretical Framework

PART 1
The National Courts as Common Courts of European Law
1. Introduction
2. Before the West was Won: A Touch of Legal Archaeology
3. The Creation of a Community Mandate for National Courts
4. The Duty to Review National Law: the ‘Simmenthal Mandate’
5. Refining the Mandate: Second Generation Issues
6. The ‘Simmenthal Mandate’ Embraced
7. About Legal Orders
8. The Constitutional Limits of the Judicial Function
9. Explaining Acceptance
10. Excursion: The ‘Costanzo Mandate’ of Administrative Authorities
11. The ‘Francovich Mandate’: Jurisdiction to Hold the State Liable for Breach of Community Law

PART 2
The Court of Justice and National Constitutional Jurisdictions: La Guerre des Juges?
12. Introduction
13. Introducing the Actors: ‘Courts Having Constitutional Jurisdiction
14. La Guerre des Juges?
15. Prior Review of the Constitutionality of Treaties
16. A Posteriori Constitutional Review of the Treaties
17. Preventive Constitutional Review of the Constitutionality of Secondary Law
18. Judicial Review of Secondary European Union Law by National Courts?

PART 3
The National Courts’ Mandate and the Future of the European Union
19. Introduction
20. Towards a European Constitution
21. The Principle of Supremacy
22. Incorporation of the National Courts’ Mandate?
23. Fundamental Rights
24. Kompetenz Kompetenz
25. Conclusion