The Polish Judiciary Reform: Problematic under European standards and a Challenge for Germany

The latest efforts of the Polish government to reform the judiciary have met with fierce criticism both nationally and internationally. A new legislation concerning the National Council for the Judiciary has recently been introduced to the Polish Parliament and awaits deliberation. The approach the Polish government has chosen is indeed problematic in the light of European standards for Councils for the Judiciary – but so is the German model of selecting judges, which the Polish governments explicitly refers to as a point of reference for their reform.

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Damaging the Legitimacy of the Spanish Constitutional Court

The Spanish legislative burdens the Constitutional Court with the task to prevent Catalonia from pursuing independence. To use the Constitutional Court as the main barricade against any attempt at starting the independence process does tremendous damage to the Court itself as it undermines its perception as neutral arbiter and, thereby, its legitimation.

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European parliamentary sovereignty on the shoulders of national parliamentary sovereignties: A Reply to Sébastien Platon

We are really grateful that the Verfassungsblog has been one of the very first forums engaging the discussion on the "Treaty on the democratization of the governance of the euro area" (T-Dem). While the proposal has emerged in the framework of the current French presidential campaign, and is now widely debated in this context, it has been primarily thought of as a contribution to the ongoing transnational conversation over the future of the European Union. As authors of the proposal, we first wish to thank our colleague Sébastien Platon for launching an interesting discussion about the T-Dem.

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Advertising: Global Constitutionalism (Journal) Volume 5, Issue 3
November 2016

Global Constitutionalism

Human Rights, Democracy and the Rule of Law

  • Freedom from community: Individual rights, group life, state authority and religious freedom under the Indian Constitution GAUTAM BHATIA

  • Contested or competitive multilateralism? A reply to Julia C. Morse and Robert O. Keohane GRÁINNE DE BÚRCA

  • AND MORE ARTICLES..
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After Article 50 and Before Withdrawal: Does Constitutional Theory Require a General Election in the United Kingdom Before Brexit?

On March 29th, Theresa May will notify the EU Council of the withdrawal of the United Kingdom from the EU. This is the result of the Brexit referendum which, for the first time in the United Kingdom’s constitutional history, has opened up a powerful new source of popular sovereignty as a social fact. It is necessary for the constitutional integrity of the United Kingdom that this new stream of popular social legitimacy is realigned with the existing stream of Parliamentary Sovereignty. The most effective and desirable way in which to achieve this would be for a General Election to take place.

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Protection with Hesitation: on the recent CJEU Decisions on Religious Headscarves at Work

The CJEU’s Achbita and Bougnaoui decisions on workplace bans of Islamic headscarves are disappointing as they are not providing enough guidance to the national courts concerning the criteria that they need to take into consideration in their attempts to find a balance between the rights in conflict. The judgments do not provide any criteria for the admissibility of dress codes other than that they should be neutral and objectively justified. Even those terms though are not analysed by the court in a sufficient manner.

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Climate Change protection goes local – remarks on the Vienna Airport Case

Climate Change was brought before the Austrian Federal Administrative Court in the beginning of 2017. The judgement concerning the construction and operation of a third runway acknowledges the current development in the UNFCCC process and, as such, is of special importance and without precedence: According to the Court, the fight against Climate Change and its consequences for Austria overrides the public interest in the expansion of the Vienna Airport.

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The CJEU’s headscarf decisions: Melloni behind the veil?

On 14 March 2017, the Grand Chamber of the Court of Justice (CJEU) handed down two landmark judgments on the Islamic headscarf at work. The twin decisions, Achbita and Bougnaoui, were eagerly awaited, not only because of the importance and delicacy of the legal issues the cases raised, but also because the Advocates General had reached different conclusions on those issues in their Opinions.

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Sententia non existens – the future of jurisprudence of the Polish Constitutional Tribunal?

One of the latest topics in the debate on the future of constitutional control in Poland concerns the possibility and the need of common court judges to directly apply the Constitution. This possibility has already existed in theory – according to the Article 8 para 2 of the Constitution of Poland, the provisions of the Constitution shall apply directly, unless the Constitution provides otherwise. However, in practice, until now in case when the conformity of the normative act with the Constitution was questioned in particular case, the court has always referred the question of law the Constitutional Tribunal. The need to come back to the discussion on direct applicability of the Constitution stems from the questionable legality of some Constitutional Tribunal rulings in connection with the incorrect appointment of three so-called “quasi-judges” in December 2015.

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Impeaching Remnants of the Authoritarian Past: A Constitutional Moment in South Korea

Last Friday, effective March 10 at exactly 11:21 a.m., the sitting President Park Geun-hye was removed from her office by a unanimous decision of the South Korean Constitutional Court. With public life coming to a standstill as eyes focused on TV and internet live broadcasting, the acting Chief Justice delivered the court decision. The conclusion of the constitutional impeachment procedure marked the climax of a transformative ongoing constitutional moment in South Korea.

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Once More unto the Breach? An Independent Scotland, Europe, and the Law

Today, Scottish First Minister Nicola Sturgeon has announced that she would ask the Scottish Parliament to allow her to agree with the UK Government on another independence referendum. The Scottish people should be given a right to decide – once the terms of Brexit are known – whether to stick with the UK and leave the EU or pursue the route of independence and stay within ‘Europe’. This blog post will briefly outline some of the legal obstacles on the way, both internal and external.

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Democratizing the Euro Area without the European Parliament: Benoît Hamon’s “T-Dem”

On the 10th March, the official candidate of the Socialist Party for the French presidential elections, Benoît Hamon, outlined his programme for the European Union. This programme, whilst being against austerity and in favour of more flexibility as regards EU requirements in terms of public budgets and public debts, comes with a treaty proposal, the draft treaty on the democratization of the governance of the euro area (dubbed « T-Dem »). This treaty, which was prepared by the candidate together with the superstar economist Thomas Piketty (who has joined his team) is supposed to bring more democracy to the governance of the Euro area. However noble (and necessary) this ambitious idea might seem, the way this draft treaty has been engineered raises not only political but also legal questions.

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The CJEU on Humanitarian Visa: Discovering ‘Un-Chartered’ Waters of EU Law

Limiting the scope of EU law vis-à-vis national legislative measures is one thing but creating un-Chartered territory in EU law is another. It is understandable why the Court would want to stay away from the currently toxic migration politics. But it is worrying that it is willing to further limit the scope of the Charter when it might be needed the most.

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