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1
Hunter-Henin, Myriam. "CONSTITUTIONAL DEVELOPMENTS AND HUMAN RIGHTS IN FRANCE: ONE STEP FORWARD, TWO STEPS BACK." International and Comparative Law Quarterly 60, no. 1 (January 2011): 167–88. http://dx.doi.org/10.1017/s0020589310000709.
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A major constitutional reform has occurred in France. On 1 March 2010, by virtue of the Constitutional Act of 10 December 20091 (itself pursuant to the constitutional reform of 23 July 2008)2 a new form of constitutional review came into force,3 with the blessing of the Conseil constitutionnel (the Constitutional council).4 The changes are considerable: the role of the Conseil constitutionnel has undergone a revolution which will have implications for ordinary courts as well as for citizens' rights. Arguably, the reform transforms the Conseil constitutionnel—so far a council with limited powers of review—into a true Constitutional court, and as discussed below, opens up constitutional issues in ordinary litigation, enhancing the protection of citizens' human rights. Owing to the reform, ‘Constitutional rights and liberties guaranteed by the Constitution’ can now be invoked against legislation in the course of litigation. This is a true revolution in France because, up until now, no individual was allowed to invoke the jurisdiction of the Conseil constitutionnel,5 nor were they authorized to invoke a constitutional principle in litigation, as this would have been asking ordinary judges to assess a piece of legislation against the Constitution, a task which exclusively belongs to the Conseil constitutionnel.6 Constitutional rights and liberties will now (as is further discussed below) play a key part in ordinary litigation.
2
Baranger, Denis. "The Language of Eternity: Judicial Review of the Amending Power in France (or the Absence Thereof)." Israel Law Review 44, no. 3 (2011): 389–428. http://dx.doi.org/10.1017/s0021223700018112.
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In several rulings from 1962, 1992, and 2003, the French Constitutional Court (Conseil constitutionnel) has denied jurisdiction over constitutional amendments. This article shows that this solution can only be understood in the light of the doctrinal background that provides its intellectual justification. While refusing to judicially review constitutional amendments, the Constitutional Court is in fact deeply involved in the ongoing process of altering the Constitution. Also, while the quasi-official doctrinal analysis insists on the absence of material limits to the amendment of the Constitution, and on the absence of any “supra-constitutional” rules, an analysis of the language used by the Court in these rulings offers reasons to diverge from this view. While the Court has refused to review constitutional amendments, it has done so in a way that comes very close to the language used by those courts that stated that such amendments were justiciable. Far from adhering to a mere policy of neutrality and self-restraint, the Constitutional Court speaks a “language of eternity” with a rich substantive content.
3
Traser, Julianna Sára, Nóra Béres, György Marinkás, and Erzsébet Pék. "The Principle of the Primacy of EU Law in Light of the Case Law of the Constitutional Courts of Italy, Germany, France, and Austria." Central European Journal of Comparative Law 1, no. 2 (December 9, 2020): 151–75. http://dx.doi.org/10.47078/2020.2.151-175.
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This article examines the relationship among national constitutions, constitutional courts, and the primacy of Community Law in connection with four Member States (Germany, France, Italy, and Austria). It starts with the question of whether national constitutions contain a European Union (EU) clause and explicitly provide for the primacy of Community Law. It examines whether any constitutional restriction or reservation has been elaborated in the case law of constitutional courts, and the extent to which the constitutional courts examined can exercise control indirectly over cases of conformity of EU legislative acts with constitutions or cases of misuse of powers (ultra vires acts). The constitutions examined can be considered uniform in that they contain references to the individual Member States’ relationships with the EU and create the possibility of restricting their competence or sovereignty. However, they do not declare the principle of the primacy of Community Law. As a consequence, the constitutional courts of Member States play a key role in the interpretation of the principle of the primacy of Community Law, including the formulation of constitutional requirements and counterbalances in connection with the enforcement of the principle. A reference to constitutional identity appears in the case law of recent decades, the elements of which are elaborated on and filled with more or less specific content by the constitutional courts on a case-by-case basis. In the event of a possible violation of constitutional identity or principles with unconditional effectiveness, some constitutional courts exclude the possibility of Community Law being invoked against the constitution of a Member State, but at least on a case-by-case basis, they maintain the possibility of inapplicability or of creating compatibility. In the latter respect, the article also addresses the limited nature of the powers of constitutional courts to examine the compatibility of EU Treaties and their amendments with the constitution of a Member State (see ex-ante or ex-post review, procedural or substantive examination).
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Samsudin, Muhammad Iqbal. "A Comparison of Judicial Review in Indonesian Constitutional Court and French Constitutional Council." Indonesian Comparative Law Review 5, no. 1 (December 30, 2022): 31–42. http://dx.doi.org/10.18196/iclr.v5i1.15127.
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One of the advances in contemporary legal and governmental ideas to arise in the 20th century was the notion of establishing a Constitutional Court. A constitutional court is a high court that focuses on constitutional law issues. Its primary authority is to rule on whether laws that are reviewed are in fact in line with constitution or not. The purpose of this study is to compare the judicial review functions and institutional aspect of the Indonesian Constitutional Court with the French Constitutional Council. It explains the distinctions and similarities between the roles of the Indonesian Constitutional Court and the French Constitutional Council as judicial entities allowed to conduct judicial reviews of statutes in accordance with the constitution. The research method employed is library research, while the research approach is a statutory approach and a comparative approach. The study shows that the Constitutional Courts in France and Indonesia have certain similarities and differences that come from the issue of court’s authority, nature of decision, complainant party, and qualification and composition of justices.
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Canivet, Guy. "Principes fondamentaux et transposition des directives communautaires Le contrôle du Conseil constitutionnel sur les lois de transposition des directives communautaires." European Review of Private Law 18, Issue 3 (June 1, 2010): 487–99. http://dx.doi.org/10.54648/erpl2010038.
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Abstract: In France, the Conseil Constitutionnel did, at first, not consider the control of the transposition of European directives as its task. This has changed by the approval of the Maastricht Treaty. Inspired by other constitutional courts in Europe, the Conseil Constitutionnel has started to exercise a limited control as of 2004. It may even be foreseen that, after the example of the Italian Constitutional Court, the Conseil Constitutionnel will in the near future pose prejudicial questions to the European Court of Justice. Résumé: En France, le Conseil constitutionnel n’a pas exercé, au départ, de contrôle de la transposition des directives européennes. Cette situation a changé avec l’approbation du Traité de Maastricht. Inspiré par d’autres Cours constitutionnelles en Europe, le Conseil constitutionnel a commencé à exercer un contrôle limité à partir de 2004. Il est à prévoir que, à l’instar de la Cour constitutionnelle italienne, le Conseil constitutionnel posera, dans un proche avenir, des questions préjudicielles à la Cour européenne de justice. Zusammenfassung: In Frankreich hat der Conseil constitutionnel die Kontrolle über die Einhaltung der Umsetzung von europäischen Richtlinien zunächst nicht als eine seiner Aufgaben angesehen. Mit der Annahme des Maastrichter Vertrages hat sich das geändert. Inspiriert durch andere europäische Verfassungsgerichte, hat der Conseil constitutionnel seit 2004 eine beschränkte Kontrolle ausgeübt. Es wäre sogar abzusehen, dass der Conseil constitutionnel nach Vorbild des italienischen Verfassungsgerichts in absehbarer Zukunft dem Europäischen Gerichtshof Fragen im Rahmen des Vorabentscheidungsverfahrens stellen wird.
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Wendel, Mattias. "Lisbon Before the Courts: Comparative Perspectives." European Constitutional Law Review 7, no. 1 (February 2011): 96–137. http://dx.doi.org/10.1017/s1574019611100061.
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Lisbon decisions of the constitutional courts in Austria, the Czech Republic, France, Germany, Hungary, Latvia and Poland from a comparative perspective – Democracy, sovereignty and identity – Permeability of national and supranational law – Ratification of the Lisbon Treaty and its constitutional foundations – Procedural background and legal outcome of the Lisbon decisions – Differences of institutional self-conception – Parliamentary responsibility for integration – Prior parliamentary assent to the future application of ‘dynamic treaty provisions’ – Different conceptions of national and multi-levelled democracy – Popular vote – Constitutional limits to European integration – Limits indicating the necessity of an amendment and limits protecting the inalienable substantial core of a constitutional order – German Bundesverfassungsgericht only court in Europe spelling out an eternity clause in a detailed, catalogue style manner – Judicial restraint – Ultra vires and identity review – Article 4.2 TEU as an integration clause of EU law and not a derogation clause – Comparative dialectics
7
Bossuyt, Marc, and Willem Verrijdt. "The Full Effect of EU Law and of Constitutional Review in Belgium and France after the Melki Judgment." European Constitutional Law Review 7, no. 3 (October 2011): 355–91. http://dx.doi.org/10.1017/s1574019611300028.
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Coincidence of human rights review by national and European courts – Courts questioning and delimiting each other's jurisdiction – Evolution of judicial review of legislation in Belgium and France – Rules giving priority to national human rights review over European human rights review – Melki judgment Court of Justice – Conformity with Union law – Balance between effectiveness of EU review and effectiveness of constitutional review – Effectiveness of human rights – Obligatory a priori human rights review of secondary Union law
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Nuriyev, G. H. "The powers of the European Constitutional Courts to hear cases on the constitutionality of regulations at the request of the courts and their corresponding features of manufacture." Russian Journal of Legal Studies 2, no. 3 (September 15, 2015): 110–14. http://dx.doi.org/10.17816/rjls18054.
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The article analyzes the powers of the constitutional courts of four leading European countries: Germany, France, Italy and Spain to consider cases on the constitutionality of regulations at the request of the courts, as well as the corresponding features of the production. Reveals the nature of this type of constitutional proceedings. It is proved that the adversarial principle is applied only partially, and in some cases does not apply.
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Gárdos-Orosz, Fruzsina. "Preliminary Reference and the Hungarian Constitutional Court: A Context of Non-Reference." German Law Journal 16, no. 6 (December 2015): 1569–90. http://dx.doi.org/10.1017/s2071832200021271.
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Jiri Zemanek, Professor at Charles University, Prague, asks what conclusions may be drawn from the current state of acceptance of the European Union (EU) law doctrine by the constitutional courts of the new Member States for their performance in the agenda of preliminary rulings. What can they learn from the experience of the old Member States? Should they follow the practice of the AustrianVerfassungsgerichtshof(Constitutional Court), which referred its first question in 1999, four years after its accession, and later repeated it several times? Or should they follow the most active Belgian Cour Constitutionnelle? Should Hungary follow the practice of the Italian Constitutional Court, Lithuania, France, Spain, or Germany? Having reviewed the case law of the Hungarian Constitutional Court and the scholarly analysis in search of the “missing links,” this study wishes to contribute to the diverse range of ideas concerning European “rule of law” integration and constitutional court contributions to it.
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Vatsov, Mihail. "European Integration Through Preliminary Rulings? The Case of the Bulgarian Constitutional Court." German Law Journal 16, no. 6 (December 2015): 1591–622. http://dx.doi.org/10.1017/s2071832200021283.
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The preliminary reference procedure under Article 267 of the Treaty on the Functioning of the European Union (TFEU) is instrumental for the so-called “judicial dialogue” within the European Union (EU). The goals of the preliminary reference procedure are to ensure the uniform interpretation and application of EU law and to contribute to the harmonious development of the law throughout the EU. It was through the preliminary reference procedure to the Court of Justice of the European Union (CJEU) that the principles of direct effect and supremacy were developed. It took many years before the first request by a Constitutional Court was sent to the CJEU. So far, the Constitutional Courts of Belgium, Austria, Lithuania, Italy, Spain, France, Germany, and most recently Slovenia, have sent requests for preliminary rulings to the CJEU. By far the most active of these in sending requests has been the Belgian Court. The Portuguese Constitutional Court has indicated that it can request preliminary rulings from the CJEU but is yet to do so. In the other Member States (MS) with Constitutional Courts, references have not been sent yet, although worthy occasions in terms of EU-law-related cases have occurred, as also observed in various contributions in this special issue. These MSs include Bulgaria.
11
STONE, ALEC. "Judging Socialist Reform." Comparative Political Studies 26, no. 4 (January 1994): 443–69. http://dx.doi.org/10.1177/0010414094026004003.
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Case studies of judicial-political interaction during two periods, 1969-1976 in Germany and 1981-1985 in France, illustrate two general points about constitutional politics in both countries. First, constitutional courts are powerful policy makers whose impact on legislative processes and outcomes is multidimensional. These courts are more than simply negative legislators, empowered to veto legislative provisions. They also exercise creative legislative powers: to recast policy-making environments, to encourage certain legislative solutions while undermining others, and to have the precise terms of their decisions written directly into legislative provisions. Second, governments and parliamentarians are often led to behave judicially, to debate and make meaningful decisions about the constitutionality of legislation. In France and Germany, both the making of public policy and the construction of constitutional law are products of sustained and intimate judicial-political interaction.
12
Theil, Stefan. "What Red Lines, If Any, Do the Lisbon Judgments of European Constitutional Courts Draw for Future EU Integration?" German Law Journal 15, no. 4 (July 1, 2014): 599–635. http://dx.doi.org/10.1017/s2071832200019064.
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The lingering European financial crisis continues to threaten the Eurozone and, in the opinion of German Chancellor Angela Merkel, the very survival of the European idea. With this apocalyptic rhetoric, it is easily forgotten that only nine years earlier Europe overcame a predicament that was, at the time, equally described as the most challenging in its history. Two failed referendums in Member States of the European Union (Member States)—namely, in France and the Netherlands—stopped the Treaty establishing a Constitution for Europe (Constitutional Treaty) in its tracks and led to an extended “period of reflection” for Europe's leaders. From this emerged a reboot of the Constitutional Treaty, now dubbed the Treaty of Lisbon, with few substantial changes, but more success throughout the ratification procedures. The final hurdle presented itself in the form of institutionally strong Constitutional Courts (CC) and Tribunals (CT) of the European Member States. Of these, the following were at one time or another seized with complaints against the ratification of the Lisbon Treaty: The AustrianVerfassungsgerichtshof(Austrian CC), the Belgian CC, theÚstavní soud České republiky(Czech CC), the FrenchConseil Constitutionnel(French CC), the GermanBundesverfassungsgericht(German CC), the Hungarian CC, theLatvijas Republikas Satversmes tiesa(Latvian CC), the PolishTrybunał Konstytucyjny(Polish CT), and theTribunal Constitucional de España(Spanish CT).
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GRÜNWALDOVÁ, VLADIMÍRA PEJCHALOVÁ. "General and Particular Approaches to Implementation of theEuropean Convention on Human Rights." Canadian Yearbook of international Law/Annuaire canadien de droit international 55 (August 30, 2018): 248–92. http://dx.doi.org/10.1017/cyl.2018.10.
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AbstractThis article deals with the implementation, at the national level, of European human rights protection standards as enshrined in theEuropean Convention on Human Rights(ECHR) and interpreted by the European Court of Human Rights (ECtHR). It discusses the principles of interpretation of theECHRby the ECtHR, the interaction and mutual dialogue between the ECtHR and national courts, and the approach of the latter to interpretation and application of the case law of the ECtHR. Using the concrete examples of France and the Czech Republic as case studies, it is shown to what extent and how European constitutional courts take into account and apply the letter of the Convention and its interpretation by the ECtHR.
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Gicquel, Bertrand. "Preobražaji ustavnog prava na početku dvadeset prvog veka." Novi arhiv za pravne i društvene nauke Pravnog fakulteta Univerziteta u Beogradu, no. 1/2021 (May 11, 2021): 20–31. http://dx.doi.org/10.51204/novi_arhiv_pfub_21102a.
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The text analyzes the transformations of constitutional law as a university subject and legal field in France and Europe. It begins with the Enlightenment in the second half of the eighteenth century. However, the evolution of the subject was rather checkered: due to its political nature, constitutional law was abolished and reinstated, depending on the political climate. There was neither a linear development nor consistant content as a university subject. It was first studied as institutional law, but then fell under the auspices of political science, only to be positivized after the establishment of constitutional courts. The term constitution also underwent transformation, no longer confined to merely organizing governance, but ordering all of society. While the field of application of the constitution expanded, it was undermined by strengthening individualism and communitarism. Predicaments also arose regarding the possibility of existence of a constitution without or outside the state, specifically in the context of the European Union. Finally, the text notes that the ideological use of the term democracy obscures the fact that majoritarian democracy might possibly be obsolete, and that other forms of legitimacy are gaining in significance.
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BROUARD, SYLVAIN, and CHRISTOPH HÖNNIGE. "Constitutional courts as veto players: Lessons from the United States, France and Germany." European Journal of Political Research 56, no. 3 (January 30, 2017): 529–52. http://dx.doi.org/10.1111/1475-6765.12192.
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Ziller, Jacques. "European Union Law in the Jurisprudence of French Supreme Courts: Europe-Friendliness with a French Touch." European Public Law 21, Issue 4 (December 1, 2015): 765–80. http://dx.doi.org/10.54648/euro2015043.
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This paper tries to explain the present day attitudes towards EU law of the three French Supreme Courts to a public of non-French lawyers, with the aim of revisiting the traditional view of a slightly sceptical jurisprudence in European Union matters, which dates from the 1970s; that former attitude could be compared to the present day attitude of the Bundesverfassungsgericht. Nowadays however, while the latter Court appears often to pay lip service to the development of European integration with its own concept of Europafreundlichkeit – which is repeatedly used in the Lisbon Judgment of 2009 of the German Constitutional court and in its following rulings – French supreme courts appear having a truly Europe-friendly attitude since a decade or so, because they have understood that the best way not to be overflown by the tide of EU law is to participate again in its further development, a point that lawyers such as Maurice Lagrange had well understood since the early 1950s.The paper starts with a summary presentation of the French judicial system, in order to clarify why it would not be accurate to concentrate comparisons on the sole constitutional court (section 1), before analysing French jurisprudence on the issue of treaty revision (section 2), and on the application of EU law in France, especially on the transposition of directives (section 3). As a conclusion, the paper tries to explain the intricacies of the apparently diverging jurisprudences of French supreme courts as to the compatibility between the recent system of ‘priority question of constitutionality’ as illustrated by the Melki and Abdeli case of 2010 (section 4).
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Frossard, Joseph. "La grève dans les services publics en droit français." Les Cahiers de droit 21, no. 3-4 (April 12, 2005): 699–713. http://dx.doi.org/10.7202/042409ar.
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This paper describes the limitations on the constitutional right to strike that apply to public employees in France. While recognizing the right to strike for all salaried workers, whether employed in the private or public sector, the Preamble to the 1946 Constitution, incorporated by reference into the present Constitution, allows for limitations being imposed on that right by statute. Indeed, specific legislation has either prohibited or limited the right to strike for various classes of public employees. This has been held constitutionally valid insofar as the statutory bar or restriction is required to prevent essential functions of the State from being interrupted or to ensure that the vital needs of the country are being provided for. Even where no specific restrictive legislation applies, strikes by the staff of « public services » — including not only central and local government employees, but also employees of major nationalized industries, institutions such as hospitals, and even private undertakings providing some public utility or service — are subject, under the Labour Code, to a number of restrictions. In particular, five days' notice of the strike must be given by a representative union. And certains forms of striking, such as rotating strikes, are prohibited. In addition, the employer authority may, under the doctrine of « essential services », make administrative regulations identifying which units or staff positions are considered essential. These regulations are subject to review by the administrative courts on the basis that the constitutional right to strike may only be curtailed insofar as is needed to preserve State authority and security or the safety of the public.
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Pomianowski, Piotr. "DYSKUSJA W ŚRODOWISKU «THEMIS POLSKIEJ» NAD PRZYWRÓCENIEM TRYBU KASACYJNEGO W SĄDOWNICTWIE NAJWYŻSZYM KRÓLESTWA POLSKIEGO (1828-1830)." Zeszyty Prawnicze 8, no. 2 (June 25, 2017): 119. http://dx.doi.org/10.21697/zp.2008.8.2.06.
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Discussion on the cassation’s restoration in the Congress Kingdom of Poland in the First Polish Legal Journal «THEMIS POLSKA»SummaryThemis Polska was edited between 1828 and 1830 in Warsaw by young and well-educated lawyers. One of the main subjects discussed in this journal was a restoration of the cassation in the Congress Kingdom of Poland, a country which was dependent on the Russian Empire. An autocratic Tsar of Russia was simultaneously a King of Poland which was formally a constitutional state. In the course of time Tsar continued to limit Poland’s constitutional rules.At the end of the 1820s Polish lawyers postulated a return of the cassation, an institution which restrains power of a sovereign. Cassation functioned in Poland during a French domination (in the Duchy of Warsaw) in the same form as it did in France. The aim of this institution was to separate a protection of obedience to the laws (as a competence of the Court of Cassation) from bringing in new verdicts in individual cases (as a competence of lower courts). Plans to restore the cassation was interrupted by the November Uprising (1830-1831).
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Poli, Sara, and Roberto Cisotta. "The German Federal Constitutional Court’s Exercise of Ultra Vires Review and the Possibility to Open an Infringement Action for the Commission." German Law Journal 21, no. 5 (July 2020): 1078–89. http://dx.doi.org/10.1017/glj.2020.57.
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Abstract The paper examines the possible opening of an infringement procedure against Germany as a result of the breaches that emerge from the declaration by the German Constitutional Court that the Court of Justice has acted ultra vires in the Weiss judgment (C-493/17). The proportionality assessment of the Public Sector Purchase Programme (PSPP) of the European Central Bank (ECB), carried by the Court of Justice, is contested by the domestic court. We recall that the Commission enjoys great discretion regarding the launch of an infringement action based upon Article 258 of the TFEU and may be reluctant to use its powers, considering the special position of the constitutional courts in the context of Article 267 TFEU as well as the present situation of emergency following the pandemic. Yet, the possibility to start an infringement procedure for breaches of Treaty obligations resulting from an incorrect interpretation of domestic courts was admitted in case C-129/00 Commission v. Italy and applied in two subsequent cases (C-154/08 Commission v. Spain and C-416/17 Commission v. France). As a result of the ruling of May 5, 2020, the Court of Justice may find that Germany failed to fulfil obligations stemming from Article 267 TFEU and the related case-law, Article 19 TEU, as well as Article 5(2) TEU. Other breaches concern the independence of the ECB and of the Bundesbank (being it a Member of the European System of Central Banks (ESCB) and of the Eurosystem) as defined in Articles 130, 282(3) TFEU and Article 7 of the Protocol (No. 4) on the Statute of the ESCB and of the ECB. We argue in favour of the violation of all these provisions read in conjunction with the duty of loyal cooperation, laid down in Article 4(3) TEU. Yet, we conclude that it is uncertain whether the Commission will open (or continue) an infringement procedure against Germany since the Bundesbank may act to satisfy the requests of the German Constitutional Court in relation to the proportionality of the PSPP. It is to be hoped that the German State organs will make sure that the PSPP may be continued, thus ensuring the functioning of the Eurozone, despite the attack of the BVerfG to the EU Judicature and to Weiss ruling in particular.
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Ermakova, E. P. "LAWSUITS AGAINST GOVERNMENTS AND PRIVATE COMPANIES OF EUROPEAN COUNTRIES OVER CLIMATE PROTECTION UNDER THE PARIS AGREEMENT 2015 (UK, NETHERLANDS, GERMANY AND FRANCE)." Вестник Пермского университета. Юридические науки, no. 49 (2020): 604–25. http://dx.doi.org/10.17072/1995-4190-2020-49-604-625.
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Introduction: the article analyzes claims for climate protection under the Paris Agreement 2015 considered by state courts of the UK, the Netherlands, Germany and France. It is proved that the number of legal cases, both against governments and private companies, related to protection of climate from changes is steadily increasing. Applicants rely on constitutional and human rights laws in their efforts to hold governments accountable for tackling climate change issues. Climate litigation is also influenced by new scientific discoveries and developments in the field of climate change, which allow plaintiffs to more accurately determine the environmental impact of projects, policies and laws. In this regard, a comparative analysis of the above issues appears to be of key importance. Purpose: based on the analysis of judicial precedents, scientific sources and normative acts, to form an idea of the new category of court cases in European countries – lawsuits against governments and private companies aimed at protecting the climate from changes under the Paris Agreement 2015. Methods: empirical methods of comparison, description, interpretation; theoretical methods of formal and dialectical logic; special scientific methods (legal-dogmatic and the method of interpretation of legal norms). Results: the conducted study showed that in Europe, over the past few years, the concept ‘protecting the climate from changes’ has shifted from the political to the legal sphere – active citizens and environmental organizations began to sue their governments and private companies based on the provisions of the Paris Agreement 2015, international documents and national legislation. In general, state courts of European countries (Germany, the Netherlands) have arrived at a conclusion that the governmental climate policy is subject to judicial review and must comply with the government’s responsibilities to protect fundamental rights in accordance with the Constitution. Conclusions: all lawsuits filed to protect the climate from changes under the Paris Agreement 2015 can be divided into two categories: a) lawsuits filed against governments; b) claims filed against private companies. Among the lawsuits filed against individual governments, the most successful has been the ‘Urgenda’, case, with the decision in this case confirmed by the Supreme Court of the Netherlands in December 2019. Claims aimed at ensuring that private companies also comply with the terms of the Paris Agreement (although not being parties to it) can be called a new type of lawsuit: most of these cases are not completed and are pending before state courts. Such lawsuits are directed against private companies that pollute atmosphere the most – Shell, Total, etc.
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Protosavitska, L. S. "Liberal-democratic values of the Polish Сonstitution of 1921." Uzhhorod National University Herald. Series: Law, no. 64 (August 14, 2021): 46–50. http://dx.doi.org/10.24144/2307-3322.2021.64.8.
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Examining the liberal-democratic values of the Polish Сonstitution of 1921, the author clarified the conditions under which the Polish state was formed in 1918. In general, the paper examines all sections of the constitution of March 17, 1921, carried out an article-by-article analysis of the basic law of the Polish state.
Polish statehood was restored as a result of geopolitical changes following the First World War, including the victory of the Entente. Based on the guarantees contained in Woodrow Wilson's program, the Poles restored the Polish state.
The Polish state in the postwar period faced a large number of political, social, economic and psychological problems that stood in the way of land integration and overcoming the gap with Western European states.
It was found that the Constitution of March 17, 1921, in contrast to previous constitutional acts, established a clear division of power into legislative, executive and judicial, proclaimed the rights and freedoms of citizens. The Constitution stated that the supreme power in the republic belongs to the people. Both houses of parliament - the Seimas and the Senate - were not equal under the 1921 Constitution. Constitutional powers enabled parliament to revise and amend the constitution.
It is noted that the executive power belonged to the President together with the relevant ministers. As for the judiciary, it belonged to independent courts. The constitution guaranteed broad rights to its citizens, as well as clearly defining the range of responsibilities that everyone had to perform properly.
Thus, on the basis of the analysis conducted by the author, it was found that the Polish state adopted the model of the democratic system of France, and in terms of legislative activity also Weimar Germany. The Constitution of Poland incorporates such values as citizenship and responsibility of the citizen, constitutionalism, freedom of speech, human dignity, honor and tolerance, freedom of conscience and justice, social order and equality.
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Ragone, Sabrina, and Valentina Volpe. "An Emerging Right to a “Gay” Family Life? The CaseOliari v. Italyin a Comparative Perspective." German Law Journal 17, no. 3 (June 1, 2016): 451–85. http://dx.doi.org/10.1017/s2071832200019830.
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This Article analyses, through the lens of comparative law, theOliari and others v. Italyjudgment, which was issued by the European Court of Human Rights (ECtHR) in July 2015. TheOliaricase is important for being the first judgment in which the ECtHR established the granting of legal “recognition and protection” to same-sex couples as a positive obligation for the Member States of the Council of Europe on the basis of Article 8 of the European Convention on Human Rights. In order to understand the role of judicial bodies in the progressive protection of homosexual rights, this Article combines an analysis of European case law with the national perspective. As it concerns the supranational facet, the authors illustrateOliari's reasoning and situate the case in the jurisprudence of the ECtHR. Elements of both continuity and innovation emerge from the analysis, as well as a relevant dimension of judicial dialogue supporting the incremental recognition of gay rights in Europe. As it concerns the national facet, this specific case was initially dealt with at the domestic level and was the object of judgment 138/2010 by the Italian Constitutional Court. The judgment is critically put into perspective through the examination of the jurisprudence of other European Constitutional Courts (France, Portugal and Spain) that were called on to decide similar cases in the same period. Therefore, the Article offers a comparative analysis of theOliarijudgment clarifying its relevance and speculating on the potential value of this case for the future recognition of the right to a “gay” family life in Europe.
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Kalish, Dar'ya. "Specificity of the interpretation of constitutionality in the Fifth Republic in France." Sravnitel noe konstitucionnoe obozrenie 30, no. 3 (2021): 125–40. http://dx.doi.org/10.21128/1812-7126-2021-3-125-140.
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In France, the understanding of the constitutionality of law and the wider institution of constitutional control have interesting features, especially when compared to other countries that use the traditional, legal European (Kelsen’s) model. These include the originality of the standard, against which legislative acts are checked. It is the so-called constitutional bloc, which, in addition to the 1958 Constitution itself, includes the Declaration of the Rights of Man and Citizen of 1789, the Preamble to the 1946 Constitution, the 2004 Environmental Charter, as well as the principles to which the Constitutional Council attaches constitutional significance. A feature of French public law in accordance with the 1958 Constitution is the non-universal legislative competence of parliament and the delimitation of the areas of regulation of law and regulations (government acts). In this regard, one of the requirements for the constitutionality of the law in France is that it should not interfere with the sphere of regulatory power, that is, it should not touch upon issues that are not attributed to the subject of legislative regulation by the Constitution. However, Parliament’s violation of the delimitation of legislative and regulatory regulation established by the Constitution does not include the unconstitutionality of the corresponding law (its individual provisions), instead only allowing the Government to amend them by its decrees. For a long time in France, there was only preliminary constitutional control over laws, legislative proposals submitted to a referendum, regulations of the chambers of Parliament and international treaties. As a result of the 2008 constitutional reform, a specific, subsequent constitutional review was introduced. It can be initiated in the Constitutional Council by the Court of Cassation or the Council of State upon an appeal, respectively, by a court of general jurisdiction or an administrative court, before which a statement is made that the law being applied to the dispute under consideration violates constitutionally guaranteed human rights. The institution of subsequent constitutional review has proved to be in great demand, and currently, most of the Constitutional Council’s decisions are made within its framework. In modern France, the development of legislation is significantly influenced by EU law. However, neither the Constitutional Council nor the Council of State directly monitor the compliance of laws and regulations with international treaties and EU law.
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Reestman, Jan Herman. "France Conseil Constitutionnel on the Status of (Secondary) Community Law in the French Internal Order. Decision of 10 June 2004, 2004-496 DC." European Constitutional Law Review 1, no. 2 (May 19, 2005): 302–17. http://dx.doi.org/10.1017/s1574019605003020.
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Shortly before the European Council reached political agreement on the European Constitutional Treaty (18 June 2004), the Conseil constitutionnel [the French constitutional court], rendered a decision on the relationship between (secondary) community law and the French Constitution that will still be pivotal once the Constitutional Treaty has entered into force. Taken on 10 June 2004, the decision was only made public five days later. The Conseil feared that it would be presented as ‘a French abdication in the face of the European institutions’ and might influence the elections for the European Parliament of 13 June 2004.
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Vermeule, Adrian. "Intermittent institutions." Politics, Philosophy & Economics 10, no. 4 (February 22, 2011): 420–44. http://dx.doi.org/10.1177/1470594x10392341.
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Standing institutions have a continuous existence: examples include the United Nations, the British Parliament, the US presidency, the standing committees of the US Congress, and the Environmental Protection Agency. Intermittent institutions have a discontinuous existence: examples include the Roman dictatorship, the Estates-General of France, constitutional conventions, citizens' assemblies, the Electoral College, grand and petit juries, special prosecutors, various types of temporary courts and military tribunals, ad hoc congressional committees, and ad hoc panels such as the 9/11 Commission and base-closing commissions. Within the class of intermittent institutions, one may distinguish periodic from episodic institutions. The former come into being on a schedule set down in advance, while the latter come into being at unpredictable intervals. The Electoral College is a periodic institution, while the Roman dictatorship is an episodic one. This article attempts to identify the benefits and costs of intermittent institutions, both as a class and in their periodic and episodic varieties. The largest goals are to state some general conditions under which intermittent institutions prove superior or inferior to standing institutions, and to illuminate the temporal dimension of institutional design.
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Alibali, Agron. "Two Landmark Decisions of the Albanian Constitutional Court: The Individual, the Employee, and the State." Review of Central and East European Law 29, no. 2 (2004): 219–45. http://dx.doi.org/10.1163/157303504774062420.
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AbstractThe present article focuses on two important decisions of the Albanian Constitutional Court that have clarified the right to a fair hearing in circumstances in which removal proceedings against top government officials are at the center of an administrative dispute. In interpreting the Constitution and following its established jurisprudence, the Court held that the right to a fair hearing exists in every administrative proceeding that has a "punishing character". The dispute arising from the removal of Albania's General Prosecutor in the spring of 2002 has provided a rare opportunity to debate important issues of constitutional law and human rights in what was a previously closed and oppressed society. The article outlines the circumstances surrounding the case, highlights related Albanian law and jurisprudence, discusses the role in such cases of the Parliament and President, set forth the pleadings before the Court, and analyzes the Court's rulings. The Court's rulings are also framed in a comparative context against the landmark case of Pellegrin v. France, as decided by the European Court of Human Rights, as well as the doctrine of procedural due process.
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Irkliienko, Andrey. "Constitutional and legal status of the Constitutional Council of France." Law Review of Kyiv University of Law, no. 2 (August 10, 2020): 138–41. http://dx.doi.org/10.36695/2219-5521.2.2020.23.
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he Constitutional Council of France is a body of constitutional control established by the Constitution of 1958. The ConstitutionalCouncil is not the only body that carries out the control over constitutionality. The peculiarity of constitutional control in France consistsin the fact that it has a dual nature and goes beyond well-known models of constitutional control. The constitutionality of acts, issuedby the Parliament, is considered by the Constitutional Council, and after the executive bodies do that, it is passed on to the State Council.Despite the fact that the Constitutional Council is not nominated by a court, its decisions, by their essence, are judicial acts and,likewise the decisions of the Constitutional Court of Ukraine, are endowed with the property of binding force. They are obligatory forall administrative and judicial bodies and are not subjected to revision (the Paragraph 3 of the Article 62 of the French Constitution).However, it should be taken into account that in addition to binding decisions, the Constitutional Council “expresses opinions” that areadvisory in their nature.In addition to carrying out constitutional control, the Constitutional Council has a number of other functions, such as political,advisory and acts as a court to assess the results of elections of deputies to the National Assembly and the Senate, and elections of thePresident of the Republic. Perhaps that is why the Constitutional Council classifies its decisions due to the types of its own powers.Herewith, the noted specific peculiarities are denoted by the Constitutional Council with the help of fixed letter combinations, which are included in the numbers of decision: REF, enacted on referendum issues; ORGA, enacted on issues of the organization of the Cons -titutional Council, etc.Since, despite all the diversity of functions of the Constitutional Council of France, therefore, its main purpose remains the cons -titutional control. Therefore, using the criterion of powers, under which decisions are made, in terms of initial graduation one shouldpoint out the decisions on issues, which are connected with providing compliance of the Constitution with regulatory acts (assuring thepriority of the Constitution), and decisions passed while carrying out other powers.Decisions of the Constitutional Council outstand with being formal and brief. A decision can take literally a few paragraphs. Themost frequently, the Constitutional Council merely refers to a constitutional norm or is limited to the phrase “these provisions do notcontradict the Constitution”, giving guidance and justifying its position in the least.
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Jamróz, Lech. "Sądownictwo konstytucyjne we Francji po II wojnie światowej." Politeja 17, no. 1(64) (February 26, 2020): 59–71. http://dx.doi.org/10.12797/politeja.17.2020.64.04.
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Constitutional Judiciary in France after the Second World War. The Importance of Constitutional Republican Tradition
In France, the institution of the constitutional court appeared relatively late. In the period of the Third Republic, the main obstacle to a serious discussion on the introduction of a constitutional court to the political system was the prevailing concept of a “sovereign parliament” and the associated primacy of the act (statute). The doctrine of those times strengthened the view of the special role of the act (statute) in the legal system; also in the protection of individual rights. These are the main elements of the French republican tradition, which was formed during the Third Republic and was strengthened in the next republican period under the Constitution of 1946. The Constitutional Council, the first independent constitutional court, was introduced into the new system of France (1958) not so much from the conviction of this institution, but from the desire to limit the sovereign power of the parliament and the primacy of the law. The earlier Constitutional Committee (1946) could not fulfill this role, but its importance is underlined in French literature.
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Savitri, Dewi Nurul. "Constitutional Preview and Review of International Treaties: France And Indonesia Compared." Constitutional Review 5, no. 1 (May 31, 2019): 039. http://dx.doi.org/10.31078/consrev512.
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The Indonesian Supreme Court and the Indonesian Constitutional Court are experienced in examining international treaties, although the Indonesian constitution and national laws do not stipulate this matter explicitly. The Constitutional Council of France has the authority to examine judicial previews of bills concerning international treaties. Moreover, French judges can examine international treaties. There is also the European Court of Human Rights, which has an important role concerning the control of conventionality. This article aims to promote discussion about the examination of international treaty cases in Indonesia. It begins by considering the international scholarly literature on integrating international treaties and the rank of international treaties in the national legal system. Then, this article discusses the possibility of the Indonesian Constitutional Court to examine judicial preview of international treaty bills and judicial reviews concerning ratified international treaties.
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Reestman, Jan-Herman. "The Franco-German Constitutional Divide." European Constitutional Law Review 5, no. 3 (October 2009): 374–90. http://dx.doi.org/10.1017/s1574019609003745.
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German Constitutional Court decision of 30 June 2009 on the compatibility of the Lisbon Treaty with the German Constitution – ‘Identity’ key word of the Lissabon-Urteil – The national identity clause in the current Union Treaty – Nation: people and state; diachronic and synchronic identity – Constitutional patriotism – The national identity clause in the Lisbon Union Treaty – Volksidentität and state identity – Verfassungsidentität: diachronic identity – Identité constitutionnelle de la France: synchronic identity – confidence and diffidence in the Union
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Berchenko, Hryhorii, Tetiana Slinko, and Oleh Horai. "UNAMENDABLE PROVISIONS OF THE CONSTITUTION AND THE TERRITORIAL INTEGRITY OF UKRAINE." Access to Justice in Eastern Europe 5, no. 4-2 (December 13, 2022): 113–27. http://dx.doi.org/10.33327/ajee-18-5.4-n000447.
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Background: Unamendable constitutional provisions arose with the appearance of the first constitutions in the USA and Norway, but did not become widespread. The unamendability of a republican form of government, included in the Constitution of France in 1885, continued this tradition. Such provisions became more widespread after the Second World War. Countries that gained independence began to include a mention of territorial integrity in such provisions. Ukraine belongs to such countries (the Constitution of 1996). Since 2014, Ukraine has faced encroachment on its territorial integrity by an aggressor state − its eastern neighbor. Given these circumstances, the study of the nature and meaning of unamendable provisions of a constitution has particular relevance. Methods: The following methods were used in the work to research the main approaches to the unamendable provisions of the constitution. The system-structural method was useful when providing a structural characterisation of the concept of unamendable provisions, as well as its varieties, establishing a relationship with other concepts (multilevel constitutional design). The logical-legal method made it possible to discover the positions of scientists regarding an optimal list of unamendable provisions, the possible violation of such provisions in the situation of a constitutional revolution, and the positions of the Constitutional Court of Ukraine regarding the protection of territorial integrity in Ukraine. The comparative method was used to study the experience of foreign countries. Results and Conclusions: The paper analysed the legal consequences of violation of territorial integrity, concluding that military aggression, occupation and unacknowledged annexation of part of Ukrainian territory by Russia is not a reason to refuse territorial integrity as an unamendable provision of the Constitution of Ukraine. On the contrary, the protection of this provision should be strengthened.
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Sirenko, O. V., YU I. Doroshenko, and V. V. Baranovsʹka. "Formation of the inadmissibility of evidence in the context of the doctrine of the «fruit of a poisoned tree»." Uzhhorod National University Herald. Series: Law, no. 63 (August 9, 2021): 261–65. http://dx.doi.org/10.24144/2307-3322.2021.63.45.
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The articles analyze the issues of standard permissible indicators, which are the established norms of criminal procedure legislation and the formation of judicial rules of practice, which create the formation of permissible indicators. The domestic legislator establishes a system of standard permissible indicators, which, on the one hand consists largely of 232 international standards of proof, which is gaining a broader understanding, and on the other hand, is widely used in judicial practice, while the history of clarification changes some of them. A significant part of the standard allowable indicators is determined by the rules of Art. 87 of the CPC of Ukraine, devoted to the grounds for recognizing in admissible indicators obtained as a result of a significant violation of human rights and freedoms. The legal model of inadmissibility provided by the CPC of Ukraine tends to its counter parts in the legislation of the Romano-Germanic legal system (CPC of Germany, France), while some features of this institution were also initiated by US and British legislation, in particular, the doctrine of trees», a certain analogue of which his provided for in Part 1 of Art. 87 of the CPC. Definite understanding of the doctrine of «fruit of the felled tree», which reveals any guilt that violates the police constitutional legal citizens, which has none, but simply an in direct connection with the process of identifying, removing and recording indicators, the severity of loss of recent legal force. This means the unconditional in admissibility of available indicators for any assignment established through the collection of indicators, regardless of their nature and degree.
The article reveals a number of international standards of admissible indicators sent by the European Court of Human Rights. The range of cases for which the ECtHR in the context of the Convention provides for a response to accept able indicators and the establishment of national courts is revealed. On the basis of the conducted research the system of the international standards of admissible indicators formed in practice of the ECtHR is generalized.
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Kłopocka-Jasińska, Marta. "Czy państwo może decydować o miejscu pochówku dyktatora? Komentarz do postanowienia hiszpańskiego Trybunału Konstytucyjnego z 17 października 2019 roku w sprawie ekshumacji szczątków Francisca Franco Bahamondego." Studia nad Autorytaryzmem i Totalitaryzmem 43, no. 4 (December 31, 2021): 339–53. http://dx.doi.org/10.19195/2300-7249.43.4.26.
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This article comments on the Spanish Constitutional Court’s order of 17 October 2019, ATC 119/2020, regarding the exhumation and transfer of the remains of Francisco Franco Bahamonde from the Valley of the Fallen. Franco’s relatives brought a constitutional complaint before the Constitutional Court against the resolutions of the Council of Ministers of 15 February and 15 March 2019, which concerned the exhumation of the dictator’s remains and their transfer to the Mingorrrubio Cemetery in El Pardo. This was done against the wishes of the family, who had indicated another location. The applicants submitted, inter alia, that their right to respect for private and family life had been violated. In fact, certain issues relating to the treatment of the body of a deceased person fall within the scope of the right to privacy. However, the Spanish Court did not accept the applicants’ plea and held that there was no violation of the constitutional right. It justified its decision on the grounds that the right to protection of private and family life is not absolute and is subject to limitations, and that the measures applied in this case were in line with a “constitutionally legitimate aim,” proportionate and necessary. The Court’s decision is correct, although its reasoning leaves much to be desired. The Court could have strengthened its argumentation with, first, a more in-depth analysis of proportionality, and, second, with reference to Strasburg standards. In particular, as the Court pointed out, the historical and political importance of the person at the head of the political regime established after the civil war and acting as head of state meant that the decision on where to bury his remains went beyond the dimension of an individual private matter.
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Mamojka, Mojmír, and Jacek Dworzecki. "Development of Commercial Law in the Slovak Republic - Outline of problems." Internal Security 8, no. 1 (January 30, 2016): 81–90. http://dx.doi.org/10.5604/20805268.1231517.
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The article concerns the issue of trade law in the context of its evolution and the current realities of its being in force in Republic of Slovakia. In the paper the authors present an historical view of the creation of legal regulations about trade from ancient times to present days. In the first part of the paper the political system and its components are discussed. The reader will be able to acquaint themselves with the functioning of the apparatus of executive power (the government and ministries), legislative power (the parliament consisting of 150 members) and judiciary (independent courts and prosecutors) in the Republic of Slovakia. Moreover, this part of the article provides information about practical aspects of the creation of selected components of the constitutional legal order (e.g. parliamentary elections). In the second part, the paper covers the evolution of trade law over the centuries, approaches to regulations in Mesopotamia, based on, inter alia, the Code of Hammurabi, and also in ancient Egypt and Greece. Tracing the development of trade law over the centuries, the authors also present the evolution of legal regulations in this field in the XIX century, with particular reference to France, Germany and Austria-Hungary (especially the territory which today forms the Czech Republic and the Slovak Republic). In the last part of the article, the forming of regulations of trade law in Czechoslovakia from 1918 and during subsequent periods which created the history of that country, to the overthrow communism and the peaceful division of the state in 1993 into two separate, independent state organisms – the Czech Republic and Slovakia - is approached.
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CHUNG, Sung Bum, and Yun Chul BAEK. "Principle of proportionality in the Constitution: Focused on the Constitutional Court of France." European Constitutional Law Association 33 (August 31, 2020): 95–119. http://dx.doi.org/10.21592/eucj.2020.33.95.
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Torres del Moral, Antonio. "Cuarenta años de Monarquía parlamentaria (Balance) // Forty years of Parliamentary Monarchy." Revista de Derecho Político 1, no. 101 (April 28, 2018): 33. http://dx.doi.org/10.5944/rdp.101.2018.21950.
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Resumen:En este artículo se ofrece una balance de la monarquía española durante 40 años, desde la sucesión de Franco Bahamonde por Juan Carlos I hasta la abdicación y la sucesión de Felipe VI. Por último se hace una propuesta dereforma constitucional en doce puntos.Abstract:In this article we offer a balance of the monarchy Spanish for 40 years, since the succession of Franco Bahamonde until the abdication of Juan Carlos I and the succession of Felipe VI. Finally, a proposal for a constitutional amendement is made in twelve points.Summary:1. Introduction. 2. From the Francoist Dictatorship to the establishment of the monarchy. 3. Monarchy and demolition of the Franco regime. 4. Monarchy and Constitution: 4.1. The Monarchy after the promulgation of the Constitution. 4.2. Succession system. Oath. 4.3. Monarchy and Armed Forces. 4.4. Inviolability and International Criminal Court. 5. Monarchy and public opinion. 6. Abdication of Juan Carlos I. 7. From Crown Prince to Felipe VI: 7.1. Apprenticeship. 7.2. A monarchy renewed for a new time. 8. Catalan crisis and message right. 8. Twelve touches to the Institution: 8.1. Approach. 8.2. No need for constitutional reform. 8.3. With mandatory constitutional reform.
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Tummala, Krishna K. "Constitutional corruption in India: an analysis of two Bharatiya Janata Party scandals." Public Administration and Policy 23, no. 1 (May 1, 2020): 23–31. http://dx.doi.org/10.1108/pap-11-2019-0035.
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PurposeThis paper focuses on two examples of constitutional corruption in India where the constitution is used for questionable political reasons by the Bharatiya Janata Party under the leadership of Prime Minister Narendra Modi.Design/methodology/approachThe paper relies on public documents and media reports to analyse Prime Minister Modi's handling of the purchase of Rafale jet fighters from France and the revocation of Articles 370 and 35A which resulted in the division of the State of Jammu and Kashmir.FindingsConstitutional and democratic norms were violated in both cases, but the Supreme Court did not find any irregularities in the sale of the Rafale jet fighters. The second case is under challenge in the Supreme Court. The analysis reveals how the Modi government has undermined democratic values and used constitutional provisions to pursue its partisan and ideological agenda.Originality/valueThe paper focuses attention on the often neglected topic of constitutional corruption in India.
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van Alebeek, Rosanne, and Ursula E. A. Weitzel. "Constitutional and Institutional Developments." Leiden Journal of International Law 13, no. 2 (June 2000): 339–40. http://dx.doi.org/10.1017/s0922156500000236.
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On 7 February 2000 Judge Gilbert Guillaume (France) was elected President of the International Court of Justice (ICJ) by his peers. He has been a member of the Court since 14 September 1987. Judge Shi Jiuyong (China) was elected Vice-President. He has been a member of the Court since 6 February 1994. They will both serve a three-year term.
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Van Eetveldt, Henri-Willem. "Standing on Unsteady Ground: AREVA NP Incorporated in France v Eskom SOC LTD." Potchefstroom Electronic Law Journal 22 (April 23, 2019): 1–27. http://dx.doi.org/10.17159/1727-3781/2019/v22i0a3285.
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Areva NP Incorporated in France v Eskom Holdings SOC Ltd 2017 6 BCLR 675 (CC) was a dispute over a multi-billion-rand tender. Although the majority of the Constitutional Court recognised the public importance of the case, it adjudicated the dispute entirely on a preliminary point. It found that the applicant did not have legal standing to seek the judicial review of the award of the tender.
This case note has three aims. First, I will argue that the Constitutional Court's majority judgment in Areva was generally unpersuasive. Second, I will attempt to show that Areva exposes an unresolved legal question: when should a court consider the merits of a case made by a litigant with questionable standing? Third, I will propose a method for resolving this question by way of substantive judicial reasoning in any given case.
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Sidharta, Noor, Sudarsono Sudarsono, I. Nyoman Nurjaya, and Bambang Sugiri. "Judicial Preview on the Bill on International Treaty Ratification." Constitutional Review 3, no. 1 (August 2, 2017): 24. http://dx.doi.org/10.31078/consrev312.
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This research is aimed to find and introduce a new idea on the state administration, which has implications on the international treaty ratification procedure followed by Indonesia and additional authorizations of the Constitutional Court of the Republic of Indonesia. The judicial preview in this research is an international treaty examination procedure by the Constitutional Court before an international treaty is transformed into a law, i.e. such international treaty is a Bill. The judicial preview shall have different terms in each country, such as Review ex ante, abstract review, judicial review. This procedure is applied when an international treaty has not been validated as a country’s national law. The benefits of a judicial preview shall be a solution to connect an ambiguity between the state administrative law and international law. The judicial preview is also the inter-state institutions real check and balance on the international treaty. Out of benchmarking results of four countries following the monism doctrine, i.e. Russia, Germany, France, and Italty and two countries following the dualism doctrine, i.e. Hungary and Ecuador, several additional authorizations of the Constitutional Court shall be summarized, i.e. via the Amendment of 1945 Constitution of the Republic of Indonesia and/or regulations via laws. If both manners are not possible, the Constitutional Court may apply the judicial preview as a state administrative practice. An international treaty draft, which has passed through the judicial preview, may not be submitted to the Constitutional Court to be performed a judicial review, unless 5 (five) year-period has passed since the bill is enacted as a law.
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Bell, John. "The Criminal Liability of Politicians in France." Cambridge Yearbook of European Legal Studies 3 (2000): 65–78. http://dx.doi.org/10.5235/152888712802859150.
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In an unusual step the Conseil constitutionnel published a communiqué on 10 October 2000 concerning the criminal liability of the head of state. In it, the Conseil stated that “the criminal law position of the Head of State does not confer a ‘criminal immunity’, but a privilege of jurisdiction during his tenure of office”. This statement contains the nub of the difficulty in understanding how French law treats the criminal law liability of the head of state and of ministers. Does the Constitution afford them immunity for their actions performed during their tenure of office, or does it merely make provision for a different court to try the offences?
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Bell, John. "The Criminal Liability of Politicians in France." Cambridge Yearbook of European Legal Studies 3 (2000): 65–78. http://dx.doi.org/10.1017/s1528887000003736.
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In an unusual step the Conseil constitutionnel published a communiqué on 10 October 2000 concerning the criminal liability of the head of state. In it, the Conseil stated that “the criminal law position of the Head of State does not confer a ‘criminal immunity’, but a privilege of jurisdiction during his tenure of office”. This statement contains the nub of the difficulty in understanding how French law treats the criminal law liability of the head of state and of ministers. Does the Constitution afford them immunity for their actions performed during their tenure of office, or does it merely make provision for a different court to try the offences?
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Ioannidis, Michael. "The ECtHR, National Constitutional Law, and the Limits of Democracy: Sitaropoulos and Others v. Greece." European Public Law 17, Issue 4 (December 1, 2011): 661–71. http://dx.doi.org/10.54648/euro2011043.
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This article discusses the decision of the First Chamber of the European Court of Human Rights in the case Sitaropoulos and Others v. Greece. In this case, the Court was asked to examine whether the omission of Greece to provide two Greeks residing in France with effective means to exercise their voting right from abroad was compatible with Article 3 of the First Protocol to the ECHR. The Court found that the Greek omission violated the applicants' right to free elections as guaranteed by Article 3. This finding deserves close scrutiny not only because of its potential impact on the Greek political system, but also with regard to the Court's reasoning. Most importantly, the Sitaropoulos decision is based on a rather questionable reading of the Greek Constitution, which, moreover, gives the Court a controversial role in demarcating the limits of the Greek electorate.
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Baek, Yun-Chul. "A Study on the Constitutional Court of France." Han Yang Law Review 30, no. 3 (August 31, 2019): 119–37. http://dx.doi.org/10.35227/hylr.2019.08.30.3.119.
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Piersanti, Valeria, Francesca Consalvo, Fabrizio Signore, Alessandro Del Rio, and Simona Zaami. "Surrogacy and “Procreative Tourism”. What Does the Future Hold from the Ethical and Legal Perspectives?" Medicina 57, no. 1 (January 8, 2021): 47. http://dx.doi.org/10.3390/medicina57010047.
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Background and objectives: To explore the ethical and legal complexities arising from the controversial issue of surrogacy, particularly in terms of how they affect fundamental rights of children and parents. Surrogacy is a form of medically-assisted procreation (MAP) in which a woman “lends” her uterus to carry out a pregnancy on behalf of a third party. There are pathological conditions, such as uterine agenesis or hysterectomy outcomes, that may prevent prospective mothers from becoming pregnant or carry a pregnancy to term; such patients may consider finding a surrogate mother. Many issues relating to surrogacy remain unresolved, with significant disagreements and controversy within the scientific community and public opinion. There are several factors called into play and multiple parties and stakeholders whose objectives and interests need to somehow be reconciled. First and foremost, the authors contend, it is essential to prioritize and uphold the rights of children born through surrogacy and heterologous MAP. Materials and methods: To draw a parallel between Italy and the rest of the world, the legislation in force in twelve European countries was analyzed, eleven of which are part of the European Union (France, Germany, Italy, Spain, Greece, Netherlands, Belgium, Denmark, Lithuania, Czech Republic and Portugal) and three non-members of the same (United Kingdom, Ukraine and Russia), as well as that of twelve non-European countries considered exemplary (United States, Canada, Australia, India, China, Thailand, Israel, Nigeria and South Africa); in particular, legislative sources and legal databases were drawn upon, in order to draw a comparison with the Italian legislation currently in force and map out the evolution of the Italian case law on the basis of the judgments issued by Italian courts, including the Constitutional and Supreme Courts and the European Court of Human Rights (ECHR); search engines such as PubMed and Google Scholar were also used, by entering the keywords “surrogacy” and “surrogate motherhood”, to find scientific articles concerning assisted reproduction techniques with a close focus on surrogacy. Results: SM is a prohibited and sanctioned practice in Italy; on the other hand, it is allowed in other countries of the world, which leads Italian couples, or couples from other countries where it is banned, to often contact foreign centers in order to undertake a MAP pathway which includes surrogacy; in addition, challenges may arise from the legal status of children born through surrogacy abroad: to date, in most countries, there is no specific legislation aimed at regulating their legal registration and parental status. Conclusion: With reference to the Italian context, despite the scientific and legal evolution on the subject, a legislative intervention aimed at filling the regulatory gaps in terms of heterologous MAP and surrogacy has not yet come to fruition. Considering the possibility of “fertility tourism”, i.e., traveling to countries where the practice is legal, as indeed already happens in a relatively significant number of cases, the current legislation, although integrated by the legal interpretation, does not appear to be effective in avoiding the phenomenon of procreative tourism. Moreover, to overcome some contradictions currently present between law 40 and law 194, it would be appropriate to outline an organic and exhaustive framework of rules, which should take into account the multiplicity of interests at stake, in keeping with a fair and sustainable balance when regulating such practices.
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Piersanti, Valeria, Francesca Consalvo, Fabrizio Signore, Alessandro Del Rio, and Simona Zaami. "Surrogacy and “Procreative Tourism”. What Does the Future Hold from the Ethical and Legal Perspectives?" Medicina 57, no. 1 (January 8, 2021): 47. http://dx.doi.org/10.3390/medicina57010047.
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Background and objectives: To explore the ethical and legal complexities arising from the controversial issue of surrogacy, particularly in terms of how they affect fundamental rights of children and parents. Surrogacy is a form of medically-assisted procreation (MAP) in which a woman “lends” her uterus to carry out a pregnancy on behalf of a third party. There are pathological conditions, such as uterine agenesis or hysterectomy outcomes, that may prevent prospective mothers from becoming pregnant or carry a pregnancy to term; such patients may consider finding a surrogate mother. Many issues relating to surrogacy remain unresolved, with significant disagreements and controversy within the scientific community and public opinion. There are several factors called into play and multiple parties and stakeholders whose objectives and interests need to somehow be reconciled. First and foremost, the authors contend, it is essential to prioritize and uphold the rights of children born through surrogacy and heterologous MAP. Materials and methods: To draw a parallel between Italy and the rest of the world, the legislation in force in twelve European countries was analyzed, eleven of which are part of the European Union (France, Germany, Italy, Spain, Greece, Netherlands, Belgium, Denmark, Lithuania, Czech Republic and Portugal) and three non-members of the same (United Kingdom, Ukraine and Russia), as well as that of twelve non-European countries considered exemplary (United States, Canada, Australia, India, China, Thailand, Israel, Nigeria and South Africa); in particular, legislative sources and legal databases were drawn upon, in order to draw a comparison with the Italian legislation currently in force and map out the evolution of the Italian case law on the basis of the judgments issued by Italian courts, including the Constitutional and Supreme Courts and the European Court of Human Rights (ECHR); search engines such as PubMed and Google Scholar were also used, by entering the keywords “surrogacy” and “surrogate motherhood”, to find scientific articles concerning assisted reproduction techniques with a close focus on surrogacy. Results: SM is a prohibited and sanctioned practice in Italy; on the other hand, it is allowed in other countries of the world, which leads Italian couples, or couples from other countries where it is banned, to often contact foreign centers in order to undertake a MAP pathway which includes surrogacy; in addition, challenges may arise from the legal status of children born through surrogacy abroad: to date, in most countries, there is no specific legislation aimed at regulating their legal registration and parental status. Conclusion: With reference to the Italian context, despite the scientific and legal evolution on the subject, a legislative intervention aimed at filling the regulatory gaps in terms of heterologous MAP and surrogacy has not yet come to fruition. Considering the possibility of “fertility tourism”, i.e., traveling to countries where the practice is legal, as indeed already happens in a relatively significant number of cases, the current legislation, although integrated by the legal interpretation, does not appear to be effective in avoiding the phenomenon of procreative tourism. Moreover, to overcome some contradictions currently present between law 40 and law 194, it would be appropriate to outline an organic and exhaustive framework of rules, which should take into account the multiplicity of interests at stake, in keeping with a fair and sustainable balance when regulating such practices.
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Dorange, Aude, and Stewart Field. "Reforming Defence Rights in French Police Custody: A Coming Together in Europe?" International Journal of Evidence & Proof 16, no. 2 (April 2012): 153–74. http://dx.doi.org/10.1350/ijep.2012.16.2.396.
Full textAbstract:
In April 2011 a major reform of the law regulating the police custody phase ( la garde à vue) was adopted by the French Parliament and implemented in June 2011. The new legislation confirms the right of immediate access to a lawyer in police custody and establishes a right to have that lawyer present during interrogation. This follows a series of decisions in 2010 by the European Court of Human Rights, the French Constitutional ‘Court’ ( Conseil constitutionnel) and the final appeal court with jurisdiction over criminal matters ( la Chambre criminelle de la Cour de cassation). These decisions declared existing limits to defence rights in the French police custody phase to be contrary to the European Convention on Human Rights, unconstitutional and unlawful. These developments have been much discussed in France (both positively and negatively) because they seem to signal a further shift away from France's inquisitorial tradition in criminal process. They can also be seen as part of a coming together of defence rights across Europe prompted by the European Union and the European Convention on Human Rights.
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Tamayo-Álvarez, Rafael. "Constitutionality of the Colombia-France Bilateral Investment Treaty." American Journal of International Law 114, no. 3 (July 2020): 471–78. http://dx.doi.org/10.1017/ajil.2020.37.
Full textAbstract:
In a judgment issued on June 6, 2019 (Judgment), the Colombian Constitutional Court (Court) examined the constitutionality of the Agreement for the Reciprocal Promotion and Protection of Investments between Colombia and France (Agreement). The Court upheld the constitutionality of the Agreement on the condition that the government adopt a joint interpretative statement with France to clarify some of its provisions and prevent interpretations contrary to the Colombian constitutional order. In doing so, the Court articulated a standard of review that takes into account the benefits and costs of international investment agreements (IIAs), the application of which entailed an insightful examination of the Agreement in light of the decisions of investment tribunals. The judgment raises significant issues of public international law, including the practical implications of conditioning ratification of the Agreement on adoption of a joint interpretative statement and the role of such statements in the interpretation of IIAs. Furthermore, the judgment makes important contributions to the ongoing process of reform of the investment treaty regime and the strategies adopted by states to counter the adverse impacts of IIAs on regulatory autonomy.
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Sverba, Y. І. "Ensuring the exercise of the right to access to justice as a mandatory attribute of a constitutional state." INTERPRETATION OF LAW: FROM THE THEORY TO THE PRACTICE, no. 12 (2021): 311–16. http://dx.doi.org/10.33663/2524-017x-2021-12-52.
Full textAbstract:
The article analyzes both the positive and negative obligations of the state regarding the right to access to justice. Based on the principle of separation of powers into legislative, executive and judicial, emphasis on the need for real justice in constitutional state, as well as ensuring its accessibility, is made. Some aspects of the European Court of Human Rights case-law in the field of access to justice are considered. It is also hypothesized that the ECtHR case-law ensures the dynamic development of the European Convention on Human Rights provisions. In particular, the article analyses several ECtHR decisions which explicitly state that the Convention is intended to guarantee not theoretical and illusory, but practical and effective rights («Matthews v. The United Kingdom», «Bellet v. France and others»). The decision of the Constitutional Court of Ukraine is studied, which, inter alia, reveals the special role of constitutional and administrative proceedings in ensuring the rule of law. The obligation of the state to ensure equal access to justice is stated, since the purpose of justice is to protect violated, disputed rights, freedoms that belong directly to the person applying to the court for their protection. Therefore, the exercise of the right guaranteed by part two of Article 55 of the Constitution of Ukraine to appeal court decisions, actions or omissions of subjects of power must be ensured in accordance with the stated purpose of justice. At the same time, this right connects to the opportunity of every person to justify before the court conviction in the illegality of interference by the subjects of power in rights and freedoms concerned. The article analyses the decision of the Grand Chamber of the Supreme Court, which reveals the legal nature of ensuring access to justice in criminal, or administrative offenses. It is stated that the attributes of the rule of law are not limited to the justice and access to it, and their autonomous existence is impossible in a society where other democratic institutions do not work. Keywords: the rule of law, justice, access to justice, constitutional state, human rights, legal aid.
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Starck, Christian. "State duties of protection and fundamental rights." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 3, no. 1 (July 10, 2017): 20. http://dx.doi.org/10.17159/1727-3781/2000/v3i1a2882.
Full textAbstract:
Duties of protection are duties of the state to protect certain legal interests of its citizens. They cover the interests of life, health, freedom and property and also protect some other interests and certain constitutionally recognised institutions. State duties of protection must be considered in connection with fundamental rights. The foundations of modern constitutionalism and attendant procedures are essential to develop guidelines for a constructive critique of the jurisprudence of the Constitutional Court. This is done with reference to the recent history of France, Germany and England. The historical excursus reveals that a single theory underlies the variety of constitutional states. The development of the constitutional state gave rise to the significance of the preservation of freedom through the maintenance of law and the separation of powers. This has given rise to various legal devices, based also in part on experience with moderate rule and earlier theories of the imperium limitatum.A textual analysis of the German Basic Law is undertaken to determine whether and how the duties of protection are expressly created. Furthermore, the duties that have been discovered in the Basic Law by the Federal Constitutional Court are considered. These duties include the protection of human life and health, personal freedom, the right to autonomous development of one's personality, freedom of science, research and teaching, marriage and the family, children, mothers, professional freedom, property and the protection of German nationals against foreign states. Finally the justification of such duties and the constitutional control of the manner of protection are considered.In a final section a critique of relevant constitutional jurisprudence is undertaken. It is argued that claims to protection cannot be directly binding law. They presuppose legislation. If statutory protection is connected with infringements of third-party fundamental rights, the principle of proportionality can be adopted to test whether the protection is effective. Insofar as protection can be achieved without infringements of rights, one must attempt to test the effectiveness of protection by some other means. Where the legislature omits to protect at all, the court should limit itself to establishing the existence of a duty and to querying its non-fulfilment. The Court may not pass protective regulations or impose a duty to pass specific regulations. Where general statutory norms apply, protective duties can be realised through the socalled indirect third-party effect of fundamental rights. In its reaching its decision, the German Federal Constitutional Court is responsible for preserving the political discretion of the legislature in protecting interests and remembering the structural distinction between "hard" defensive rights and "soft" protective duties in order to prevent the erosion of the directly binding nature of defensive rights.