The National Courts' Mandate in the European Constitution
Monica Claes - Hart Pub., 2006
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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.