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The National Courts' Mandate in the European Constitution: Modern Studies in European Law

Autor Monica Claes
en Limba Engleză Hardback – 30 mar 2006
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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Specificații

ISBN-13: 9781841134765
ISBN-10: 1841134767
Pagini: 818
Dimensiuni: 156 x 234 x 64 mm
Greutate: 1.3 kg
Editura: Bloomsbury Publishing
Colecția Hart Publishing
Seria Modern Studies in European Law

Locul publicării:London, United Kingdom

Caracteristici

Monica Claes' book offers a bottom up view of the EU Constitution, taking the viewpoint of the national courts as its starting point and returning to fundamental principles to interrogate the myths of Community law.

Notă biografică

Monica Claes is a University Lecturer in European and Comparative Constitutional Law,Department of Public Law, University of Maastricht.

Cuprins

PART 1: The National Courts as Common Courts of European Law1 Introduction2 Before the West was Won: A Touch of Legal Archaeology3 The Creation of a Community Mandate for National Courts4 The Duty to Review National Law: the 'Simmenthal Mandate'5 Refining the Mandate: Second Generation Issues6 The 'Simmenthal Mandate' Embraced7 About Legal Orders8 The Constitutional Limits of the Judicial Function9 Explaining Acceptance10 Excursion: The 'Costanzo Mandate' of Administrative Authorities11 The 'Francovich Mandate': Jurisdiction to Hold the State Liable for Breach of Community LawPART 2: The Court of Justice and National Constitutional Jurisdictions: La Guerre des Juges?12 Introduction13 Introducing the Actors: 'Courts Having Constitutional Jurisdiction'14 La Guerre des Juges?15 Prior Review of the Constitutionality of Treaties16 A Posteriori Constitutional Review of the Treaties17 Preventive Constitutional Review of the Constitutionality of Secondary Law18 Judicial Review of Secondary European Union Law by National Courts?PART 3: The National Courts' Mandate and the Future of the European Union19 Introduction20 Towards a European Constitution21 The Principle of Supremacy22 Incorporation of the National Courts' Mandate?23 Fundamental Rights24 Kompetenz Kompetenz25 Conclusion

Recenzii

The greatest strength of this book lies...in its descriptive comprehensiveness which has been conducted in a way that has preserved both the transparency and coherence of the topics discussed...the quality of this book shall make it a mandatory point of reference to all students of European integration, especially to those who want to have a wide and deep insight into EU law, both at the same time.
.comprehensive and well-written.a valuable handbook in particular on the national courts view on European integration for the Member States examined. It constitutes a lasting contribution to European constitutional law, understood as a law that is shaped at the European and at the national level.
The title of this book would suggest that it is limited to discussing the matter in the framework of the constitutional treaty, but the author goes well beyond this.
. Claes' book will remain a helpful and lasting repository for anyone studying the EU legal framework and looking for highly-informed perspectives on the experience of its institutinalization.
So weit der Bogen ist, den das Werk spannt, ist es aufgrund seiner Maßgaben für die Fachgerichtsbarkeit doch von unmittelbarer Bedeutung für das Gemeinschaftsprivatrecht.

Descriere

This book offers a 'bottom up' view of how the reform of the European Constitution might work.