02 October 2023
Constitutional Pluralism and Article 370
Recently, the Indian Supreme Court finished hearing oral arguments on a batch of petitions challenging the constitutional validity of The Constitution (Application to Jammu and Kashmir) Order, 2019 which extended all provisions of the Indian Constitution to Jammu and Kashmir. In the midst of the arguments, the Court pondered upon the nature of the relationship between the Constitution of India and the Constitution of Jammu and Kashmir. While the Court is unlikely to hand down an authoritative ruling on this relationship, the exchanges between the judges and lawyers offer us a valuable avenue to explore. By analysing the Jammu and Kashmir Constituent Assembly Debates, this piece examines the nature of the relationship envisaged by the two constitutions. I argue that the constitutional principle that undergirded the previously existing constitutional relationship between India and Jammu and Kashmir is heterarchy. Continue reading >>
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23 November 2022
Trojan Horses and Constitutional Identity
In Costello v Ireland the Irish Supreme Court upheld a constitutional challenge by a Green Party MP to the Government’s proposed ratification of the CETA. By a majority of 4:3, the Court held that ratification would breach Irish juridical sovereignty. Beyond CETA, the greater significance of Costello may lie in its endorsement of constitutional identity as a doctrinal device that controls Ireland’s domestic legal engagement with its international law obligations. The new status accorded to constitutional identity, however, may provide future Irish courts with the doctrinal tools to recalibrate the relationship between the Irish and EU legal orders. Continue reading >>
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04 June 2020
In Praise of Uncertainty
The Bundesverfassungsgericht's PSPP decision will have immense consequences. I have no reason to doubt the alarm raised by so many informed and respected commentators. But here’s one small thing that has been lost in the debate so far. The Court’s decision to go its own way on a question of European law might be seen as evidence of the influence of the common law tradition in the European legal system. That’s no bad thing, and it’s probably unavoidable in any case. Continue reading >>
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29 May 2020
Unquestioned supremacy still begs the question
Earlier this week, 32 leading scholars of EU law and politics signed the statement that national courts cannot override CJEU judgments, in response to a demonstration by the BVerfG that it actually can. We share the signatories’ concern that Weiss might (and most probably will) be used as a pretext for refusing to comply with the CJEU’s rulings and the EU rule of law requirements in Member States such as Poland or Hungary. We are also critical of the conclusion to which the BVerfG arrived in its decision, though we accept some of its premises (i.e., that the national disapplication of EU acts may be justified in some rare and exceptional cases). However, even though we are not all constitutional pluralists, we take issue with some aspects of the reasoning behind the original statement and question the doctrinal and empirical arguments it invokes in favour of EU law’s unconditional supremacy. Continue reading >>26 May 2020
National Courts Cannot Override CJEU Judgments
The European Union is a community based on the rule of law. The EU legal order is the backbone that holds the EU together, and the German Federal Constitutional Court’s ruling in Weiss poses a profound threat to that legal order. This threat goes far beyond the potential consequences of the Weiss ruling for European monetary policy. We write this statement to express our shared view that the German Court’s assertion that it can declare that a CJEU judgment “has no binding force in Germany” is untenable and must be forcefully rejected. We also write to challenge those versions of scholarship on constitutional pluralism and constitutional identity that would defend the authority of any national court to make such a ruling and that helped (even if unintentionally) encourage it to do so. Continue reading >>25 May 2020
The Bundesbank is under a legal obligation to ignore the PSPP Judgment of the Bundesverfassungsgericht
If there is a situation undermining the rule of law, then it is exactly this: The Bundesbank is under a legal obligation to ignore the PSPP Judgment of the Bundesverfassungsgericht (under EU law), and the Bundesbank is under a legal obligation to follow the PSPP Judgment of the Bundesverfassungsgericht (under German constitutional law). How has it come to this? Continue reading >>06 May 2020
The Right Question about the FCC Ultra Vires Decision
Instead of re-opening the old debate on the merits and demerits of constitutional pluralism, the FCC decision should be actually taken up as an opportunity to concentrate on another systemic feature of the EU constitutional governance. The decision of the FCC is not a sign that we have a problem with constitutional pluralism in Europe but warns us that we have a major constitutional problem with the constitutional role of the ECB. Continue reading >>23 October 2018