Vienna Journal on International Constitutional Law
ISSN 1995-5855 (Online)
Erosion of Constitutional Rights in EU Law: A Call for ‘Substantive Co-operative Constitutionalism’
Abstract: Part 1 of this paper (published in the previous issue) documented comparative case law in a number of areas – from the single market to the Data Retention Directive, European Arrest Warrant, ESM Treaty and constitutional review – where constitutional rights and rule of law safeguards have been levelled downwards in the context of implementation of EU law in different Member States. Here, Part 2 of the paper propounds the concept of ‘substantive co-operative constitutionalism’, exploring how European constitutional law and the European constitutional law discourse could be recalibrated towards a greater responsiveness to substantive constitutional values. Part 2 starts by outlining an increasing shift from the mindset and vocabulary of classic, comparative (continental) European constitutional law, to a more formal, procedural, thin version of EU constitutionalism, where the keywords are supremacy, uniformity, direct effect, autonomy, effectiveness and trust. Indeed in the context of democracy and legitimacy in transnational governance, some scholars have written about the ‘erosion’, ‘twilight’ or ‘decline’ of constitutionalism or ‘the end of constitutionalism as we know it’. More recently, Euro crisis measures have prompted heightened concerns about the prolonged and perhaps even irreversible suspension of constitutionalism, the Rechtsstaat and democracy. Yet in the mainstream EU and transnational constitutional law discourse, such concerns have generally received limited attention. The article traces the reasons for the shift in the paradigm of constitutionalism on the basis of the literature on the epistemology of EU law and of transnational constitutional law, and argues that such a shift is not the only way forward. The paper then proceeds to outline some suggestions on how a more substantive version of co-operative constitutionalism could be operationalised in practice. This includes a significantly more probing and proactive role for the national constitutional courts, supreme courts and national parliaments, as well as the creation of mechanisms in the EU institutional and judicial framework for greater responsiveness to constitutional values and constitutional diversity.
Where’s Waldo? Looking for the Doctrine of Proportionality in Indian Free Speech Jurisprudence
Abstract: The doctrine of proportionality has wide, growing transcontinental application in the realm of constitutional rights adjudication. Indian constitutional law is no exception to this trend. This article documents the use of proportionality analysis by the Indian Supreme Court in cases involving the right to free speech. While it is clear that the proportionality analysis has been employed by the Apex Court, it is argued that the application of the doctrine is partial and inconsistent.
Understanding Brazilian Administrative Law, the Related Literature, and Education: A Comparison with the System in the United States
Abstract: This paper presents research on a typical subject in comparative law: doctrinal thinking about (and teaching methods for) administrative law in Brazil and the United States. The paper’s initial research hypotheses are as follows: 1) in contrast to the United States, in Brazil, legal scholarship (legal academic writing) has significantly influenced the construction of the theoretical principles that form the basis of the public administration system; 2) the Brazilian understanding of administrative legal scholarship is distinct from that of the United States regarding several specific but representative issues; 3) in Brazil, administrative law textbooks and monographs focus on general principles and direct state intervention, whereas in the United States, administrative law education focuses on regulatory issues; and 4) regulatory (and policy or decision-making) concepts are more complex than they initially appear. These initial hypotheses will either be confirmed or refuted at the end of the study. The methodological research scope is an analysis of the study, teaching, and theoretical approach to the science of administrative law through a comparison of the two systems. The conclusions aim to assist legal researchers in both countries by broadening the understanding of the differences in meaning between apparently similar institutions and expressions while analyzing relevant semiological differences. Therefore, the paper does not represent an analysis of the particular legal systems but instead offers a methodology for understanding the two jurisdictions under consideration.
Abstract: Over the past decade, the European Court of Human Rights (ECtHR) seems more and more inclined to use foreign sources of law, that is to say, law that does not originate in the Convention itself or in one of the Member States of the Council of Europe. Unlike in the US, there is little discussion in Europe about this form of judicial dialogue in the caselaw of the ECtHR. This paper seeks both to clarify transnational dialogue by the ECtHR and find ways to justify this practice, against the backdrop of the American debate on this topic. First, the concept of transnational judicial dialogue is analysed (Part II). Then judicial dialogue as it presents itself in the judgments of the ECtHR is assessed, especially when non-Convention or foreign law is being used in a substantive way (Part III). Subsequently, an attempt is made to define when and why the use of foreign law by the ECtHR can be considered a justifiable approach in judicial decision-making (Part IV). The paper rounds off with some concluding remarks (Part V).
EU Law in the Czech Republic: From ultra vires of the Czech Government to ultra vires of the EU Court?
Abstract: Before the Czech Republic joined the European Union in 2004, its constitution has been amended with objective to guarantee constitutional conformity of the EU accession. The Czech legal system has been opened to external legal provisions and a constitutional mechanism has been established for transfer of competencies to an external entity, all framed by the explicitly formulated constitutional principle of loyalty to the international obligations of the Czech Republic. However, the ‘European amendment’ of the Czech Constitution has left several important issues unanswered, such as the principle of supremacy of the EU law or relations between the Czech Constitutional Court and the Court of Justice of the EU. This article analyses how the Czech Constitutional Court tackled with EU-related constitutional issues that emerged during the first decade of Czech membership in the EU. Focused on four key cases decided by the Czech Constitutional Court (sugar quotas, European Arrest Warrant, Lisbon Treaty, Slovak Pensions), the article will demonstrate how the Czech Constitutional Court combined a conservative and pragmatic approach in its EU law related case-law by formulating a constitutional doctrine of a ‘EU-friendly’ interpretation of Czech constitutional rules, while, at the same time, leaving the EU law formally outside the frontiers of Czech constitutional law and refusing EU law to be used as the ultimate argument in intra-judiciary disputes in the Czech Republic.
‘No to Meat’-March on Holy Saturday – Freedom of Assembly and the Constitutional Court’s new Standard of Review
The Constitutional Court held that the bare carrying of crosses near churches and the possible disturbance of church-goers do not serve as a base to prohibit an assembly. It stated that the prohibition of an assembly may only be an ultima ratio solution. Therefore, the Constitutional Court repealed the decision of the Administrative Court of Upper Austria. The present decision is remarkable as it indicates a change in the procedure of scrutiny regarding an alleged infringement of the freedom of assembly. In connection with other recent decisions the judgment at hand reveals at least a partial change in the scope of judicial review regarding the right to freedom of assembly as guaranteed in Article 12 StGG and ipso facto a successive approximation to the level of scrutiny the ECtHR applies when addressing Article 11 ECHR.
Since the beginning of 2015, the newly inserted Art 138b para 1 subpara 4 B-VG stipulates that the Constitutional Court pronounces on divergences of opinion between a National Council’s committee of inquiry, 25% of its Members and legal entities concerning the obligation of the latter to provide information to the committee of inquiry. In the present judgment with regard to the Hypo committee of inquiry, the Court had to apply this new provision for the first time. In response to the committee’s request to submit files and documents in accordance with the object of investigation, the Federal Minister of Finance blackened text passages to a significant extent. He argued that a complete submission would not comply with the statutory confidentiality and secrecy provisions. Since the committee issued a so-called ‘decision of persistence’, the Finance Minister filed an application to the Court to settle this divergence of opinion promptly. The Court concluded that all legal entities required to provide information must submit the requested files and documents (covered by the object of investigation) without blackening regardless of statutory secrecy provisions. At the same time, the Constitutional Court made it clear that this obligation does not confer the committee unrestricted competence to publish the pieces of information obtained in such a way but itself has to weigh up the competing private and public interests.
The Constitutional Court ascertained the unconstitutionality of the provisions of National Education Law which established the possibility that pupils may not attend Religion classes provided that a request in this respect is made in writing by parents or the legal guardian, because these provisions constituted an infringement of the constitutional provisions of Article 29 on freedom of conscience. The Court stated that in adopting its regulations in education, the legislature must take into account that Article 29 para 6 of the Constitution guarantees the right to religious education and not the obligation to attend Religion classes. In this respect, free expression of options necessarily involves the person’s own initiative to attend the subject of Religion and not the tacit consent or the express refusal to attend Religion classes.
Constitutional Court of Romania: Constitutionalization of the Obligations under International Treaties and European Union binding Acts
The Constitutional Court of Romania assessed that the right to measures of social protection provided by the Constitution has to be interpreted in the light of the international treaties to which Romania is a party. As a result of this interpretation of the Constitution, the aforementioned fundamental right comprises the right of the employees to information and consultation in the event of collective redundancies. Moreover, the Court held that the failure of the legislative to comply with certain obligations of constitutional relevance that are incumbent on as the result of Romania’s accession to the European Union is in breach with the Constitution of Romania.
On 17 September 2014, after almost four years of deliberations, the Constitutional Court of the Slovak Republic failed to deliver a decision on conformity of the State Citizenship Act with the Constitution of the Slovak Republic as well as the existing international treaties on human rights. The inability to decide on this crucial piece of the national legislation citing procedural grounds shows the on-going political sensitivity surrounding this issue. While the European Court for Human Rights delivered judgments validating the State Citizenship Act’s conformity with the European Convention on Citizenship already by mid 2013, the inability of the Constitutional Court of the Slovak Republic to render its judgment more than a year later created a gap in the Slovak constitutional system.