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| The relationship between the german federal constitutional court and the european court of justice – cooperation or confrontation? three main problems and three again judgements to be disentangled |
| Umbach, Dieter C. |
ISBN/ISSN:
Edicion:1ª
Año:2003
Páginas:449-472
Precio:6.00€
Tamaño:273.42 Kbytes
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Resumen:
The Spanish Constitution and the Spanish Constitutional Court are celebrating their 25th birthday. That is cause for celebration and congratulation. The German Basic Law and the German Federal Constitutional Court (F.C.C.) could be called the "older brothers" or even the fathers of their Spanish counterparts. It is true, both Constitutions and both Constitutional Courts originated from very different traditions, but it is obvious that the German Federal Constitutional Court has indeed partly served as a role model for the Spanish as well as other European Constitutional Courts. But that does not mean that all decisions by the German Constitutional court on matters European should be followed by its descendants. On the contrary, the question has to be asked of how Europhile or Eurosceptic the pertinent decisions by the German Constitutional Court are, especially against a background of an ever closer and larger European Union promoted by the Treaty of Nice. With a European Constitution on its way, it is worth reviewing the German Court’s most decisive judgements on Community matters. They show that the Court has made an invaluable contribution to Germany’s development as a democracy under the rule of law, but the court has so far not always been able to make the great leap forward beyond national boundaries, or, more precise: it has not yet found a solution to the question of how the German and the Community legal orders could be interwoven for the higher goal of co-operation. |
Sumario:
1. Characteristics of Constitutional Courts.- 2. Fields of Conflict between German Constitutional Law and Community Law. A) Intergovernmental Concept of the Federal Constitutional Court. B) The So-Called Integration Clause of Art. 23 (1) of the Basic Law. C) Preservation of Germany’s Federal Structure. D) The Problem of Sovereignity and the Principle of Subsidiarity. E) Protection of Fundamental Human Rights.- 3. Procedural Consequences of Potential Conflicts of Constitutional laws. A) Preservance of Jurisdiction over the Protection of Fundamental rights. B) “Co-operation” in the Protection of Fundamental Rights. C) Democracy on the European Level and Observance of the Principle of Subsidiarity. D) Cooperation by Means of Preliminary Rulings under Art. 234 of the Treaty.- 4. Democratic Legitimation of the Members of a Constitutional Court.- 5. Three Critical Remarks on the Federal Constitutional Court’s View. A) New Questions Raised by the Federal Constitutional Court. B) The European Perspective. C) From the National to a European Constitution. |
Comentarios:
Este artículo forma parte de la obra The Spanish Constitution in the European Constitutional Context. La constitución española en el contexto constitucional europeo. Dykinson 2003 (ISBN 84-9772-094-6) |
