Preamble

Blanke, Hermann-Josef; Mangiameli, Stelio

doi:10.1007/978-3-642-31706-4_1

Cited by 2 publications

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“…124 Following this, the general view with regard to the concept is that Member States themselves are to define the content of their own constitutional identity, whereas the CJEU may delimit its only scope as it is still an autonomous concept of EU law. 125 In this light, when the issue of constitutional identity is raised before it, the CJEU might be hesitant to overstep its boundaries and deliver a judgment irreconcilable with existing Member State identity interpretations, which would open up new constitutional conflicts. Hence, even though an awkward situation is created by the Court's refusal to respond to constitutional identity claims, its position can be explained by an endeavour to prevent greater harms in the near-term.…”

Section: Taricco II As An Easy Way Outmentioning

confidence: 99%

The Elusive Contours of Constitutional Identity: Taricco as a Missed Opportunity

Bruggeman

Larik

2020

Utrecht Journal of International and European Law

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The primacy of EU law continues to be challenged by domestic courts relying on the notion of constitutional identity. These challenges are no longer limited to the Solange case law of the German Bundesverfassungsgericht (BVerfG) and the controlimiti doctrine of the Italian Corte Costituzionale. More recently, the Hungarian Constitutional Court introduced the notion of 'historical constitutional identity'-at a time when the rule of law and independence of the judiciary are in retreat in several parts of the EU. Against this backdrop, this article argues that the Court of Justice of the EU (CJEU) missed a formidable opportunity to clarify the outer limits of constitutional identity under Article 4(2) of the Treaty on European Union in Taricco II. Given prudential considerations as well as parallel legislative developments, it can be explained why the CJEU chose to side-step the issue. However, in the Corte Costituzionale, the CJEU found a cooperative and EU law-friendly interlocutor which would have allowed it to clarify these limits on its own terms. The CJEU cannot and should not hide from this issue forever. The next domestic court to raise this issue may be less interested in judicial dialogue and more in undermining the primacy of EU law in ever more extensive ways.

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Section: Taricco II As An Easy Way Outmentioning

confidence: 99%

The Elusive Contours of Constitutional Identity: Taricco as a Missed Opportunity

Bruggeman

Larik

2020

Utrecht Journal of International and European Law

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The EU's Accession to the European Convention on Human Rights: An International Law Perspective

Odermatt

2014

SSRN Journal

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Article 6(2) of the Treaty on European Union establishes that the Union "shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms." In early 2013, negotiators of the 47 Council of Europe member states and the European Union finalised a draft Accession Agreement that would allow the EU to accede to the Convention. In this article I examine the issues and challenges that EU accession poses from an international law perspective. Much of the literature on the EU accession has focused on the effect that this process will have on the EU legal order, including questions regarding its autonomy. Yet EU accession also raises important issues for international law. It is another example of an international organization taking part in a legal system designed exclusively for participation by state parties. To what extent should the EU participate on an equal footing with the other contracting parties, and when are special rules required to take into account the nature of the EU legal order? The article explores the broader issues that arise when the EU seeks to participate in its own right in the international legal order. It is submitted that the EU's accession to the ECHR is not only an important step for the EU legal order, but also a highly significant development for public international law.

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Preamble

Cited by 2 publications

References 0 publications

The Elusive Contours of Constitutional Identity: Taricco as a Missed Opportunity

The Elusive Contours of Constitutional Identity: Taricco as a Missed Opportunity

The EU's Accession to the European Convention on Human Rights: An International Law Perspective

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