THE NATIONAL COURTS’ MANDATE IN THE EUROPEAN CONSTITUTION

THE NATIONAL COURTS’ MANDATE IN THE EUROPEAN CONSTITUTION The reform of the European Constitution continues to dominate news headlines and has provoked a massive debate, unprecedented in the his-tory 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 doc-trines 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 (constitu-tional 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-constitu-tional 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 rela-tionship 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, leav-ing them apparently on collision course with the ECJ in the areas of judi-cial 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 perspec-tive of the national courts as the starting point for a wide-ranging exami-nation 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. Volume 5 in the series Modern Studies in European Law Modern Studies in European Law Soft Law in European Community Law Linda Senden The Impact of European Rights on National Legal Cultures Miriam Aziz Partnership Rights, Free Movement and EU Law Helen Toner National Remedies Before the Court of Justice Michael Dougan The National Courts’ Mandate in the European Constitution Monica Claes The National Courts’ Mandate in the European Constitution Monica Claes HART PUBLISHING OXFORD AND PORTLAND, OREGON 2006 Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 5804 NE Hassalo Street Portland, Oregon 97213-3644 USA © Monica Claes 2006 Monica Claes has asserted her right under the Copyright, Designs and Patents Act 1988, to be identified as the author of this work. Hart Publishing is a specialist legal publisher based in Oxford, England. To order further copies of this book or to request a list of other publications please write to: Hart Publishing, Salters Boatyard, Folly Bridge, Abingdon Rd, Oxford, OX1 4LB Telephone: +44 (0)1865 245533 Fax: +44 (0)1865 794882 email: mail@hartpub.co.uk WEBSITE: http//:www.hartpub.co.uk British Library Cataloguing in Publication Data Data Available ISBN 10: 1-84113-476-7 (hardback) ISBN 13: 978-1-84113-476-5 (hardback) Typeset by Datamatics Technologies Ltd, India Printed and bound in Great Britain by TJ International Ltd, Padstow, Cornwall. Acknowledgements This book was originally written as a PhD thesis, which I defended at the Law Faculty of the University of Maastricht in June 2004. The original topic of my research had been the impact of Community law on the constitutional position of national courts (this ultimately became Part I). As I went along, I became more interested in the multifaceted theme of the relationship between legal orders and constitutionalism in a multi-level Constitution, which I decided to include in the book, and analysed from the perspective of national courts (this ended up being Part II of my book). When I returned to my research after maternity leave, the consti-tutional debate had been redirected, and was now phrased in terms of the Convention and the Draft Treaty establishing a Constitution for Europe. I decided to add a third (and final!) Part to my book, examining the impact of the Constitutional Treaty on the national courts’ European mandate. Writing this book took time and patience, and would never have been possible without the encouragement and support of many people. Being grateful to many, I would like to mention a few. I would like to express my sincere gratitude to my supervisors, Bruno de Witte and Aalt Willem Heringa. I thank Bruno for his astute comments and sharp remarks, for his kind encouragement and his wise and flexible approach. He was always ready to share his wide knowledge and clear insights, first in Maastricht, later from Florence by e-mail. Bruno truly was and is my mentor, my Doktorvater. I thank Aalt Willem for his help, guid-ance and support, both with respect to my work and in human matters. His belief in me and my work gave me confidence. I hope and trust that I will continue to learn from both of them. I would like to thank the members of the PhD committee: Hildegard Schneider, Sacha Prechal and Luc Verhey, for their time and support. I thank Leonard Besselink, Ellen Vos and Pierre Larouche for their comments and for the stimulating debate at the defense ceremony. I thank my seconds (‘paranimfen’) Janneke Gerards and Margreet Keus, both of whom I admire greatly, and whose strength and dedication inspire me. Margreet and Janneke have supported me during the final stages of writing and in the preparation of my PhD defence. They have shared the legendary nervous last minutes before the start of the ceremony in the ‘zweetkamertje’ of the University of Maastricht. Nettie Litjens kindly agreed to put the files together and produce a camera-ready manuscript, and did so with remarkable patience and ... - tailieumienphi.vn