Hi,
here come additional instructions for the second tutorial, which focuses on some of the most controversial (and still pressing) issues in the EU constitutional law - the relationship between legal orders of the member states and the EU, and the question of who and how should protect fundamental rights in the EU.
In this post you will find (1) tips for additional reading (which is only optional, but those of you who aspire at having a deeper understanding of what is going on in these matters in the EU now it is, in my opinion, very useful) and (2) some additional questions to those that you have on your Agreed Reading List.
(1) Suggested Additional Reading
Of all cases you have on your ARL, Mangold is currently (perhaps) the most important, since the questions it opened remain unsettled until today and are object of further controversy. To understand why, AG Sharpston's Opinion in Case C-427/06 Bartsch, especially paragraphs 26-93, is brilliant (among other things, she summarizes the subsequent case law concerning Mangold, but also tries to explain where do the general principles come from). Note that the Court decided the case on a jurisdictional basis and in a way avoided answering some of the questions that Mangold had opened.
If you are interested in the debate concerning EU law and its distinct character (or its absence) as regards EC law and the relationship between the legal orders, Koen Lenaerts and Tim Corthaut, "Of Birds and Hedges: The Role of Primacy in Invoking Norms of EU Law’," (2006) 31 EL Rev 287 is instructive. Note that K. Lenaerts is a judge at the ECJ... (you will find this article very useful also when we will talk about directives and their legal effects in national legal systems).
Finally, a very interesting and illuminating jurisprudential analysis of the relationship between legal orders (or systems) in the EU is offered by Julie Dickson here: "How Many Legal Systems? Some Puzzles Regarding the Identity Conditions of, and Relations between, Legal Systems in the European Union."
What can make your life easier:
Weiler’s “The Autonomy of the Community Legal Order: through the looking Glass” was originally published in Harvard Journal of International Law, accessible at Oxford from Hein On-line or JSTOR. Maduro’s ‘Europe and the Constitution: What if this is As Good As It Gets?’ can be downloaded here (pdf). So you do not have to go to the Library and copy these; you can print them off instead. Both Weiler and Maduro are THE ones who have shifted the EU constitutional debate to the new fields and are definitely worth reading.
(2) Additional Questions for Essays
5. “[The general principles of Community law] enabled the Court – often drawing inspiration from legal traditions common to the Member States, and international treaties – to guarantee and add content to legal principles in such important areas as the protection of fundamental rights and administrative law. However, it lies in the nature of general principles of law, which are to be sought rather in the Platonic heaven of law than in the law books, that both their existence and their substantive content are marked by uncertainty”. (AG Mazák in Case C-411/05 Palacios de la Villa, [86])
Discuss. Where do the general principles of Community law come from? To qualify as such, does a principle need to be recognized by all Member States? Which institution is empowered by existence of general principles?
6. Read Kadi v Council and Commission (C-402/05 P and C-415/05 P) carefully. How does the Court explain that its review of the contested regulation will not challenge the primacy of the UN Security Council resolution in international law? Compare this to how member state constitutional courts justify their authority to control constitutionality of EC law in their legal orders.
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Read more!
here come additional instructions for the second tutorial, which focuses on some of the most controversial (and still pressing) issues in the EU constitutional law - the relationship between legal orders of the member states and the EU, and the question of who and how should protect fundamental rights in the EU.
In this post you will find (1) tips for additional reading (which is only optional, but those of you who aspire at having a deeper understanding of what is going on in these matters in the EU now it is, in my opinion, very useful) and (2) some additional questions to those that you have on your Agreed Reading List.
(1) Suggested Additional Reading
Of all cases you have on your ARL, Mangold is currently (perhaps) the most important, since the questions it opened remain unsettled until today and are object of further controversy. To understand why, AG Sharpston's Opinion in Case C-427/06 Bartsch, especially paragraphs 26-93, is brilliant (among other things, she summarizes the subsequent case law concerning Mangold, but also tries to explain where do the general principles come from). Note that the Court decided the case on a jurisdictional basis and in a way avoided answering some of the questions that Mangold had opened.
If you are interested in the debate concerning EU law and its distinct character (or its absence) as regards EC law and the relationship between the legal orders, Koen Lenaerts and Tim Corthaut, "Of Birds and Hedges: The Role of Primacy in Invoking Norms of EU Law’," (2006) 31 EL Rev 287 is instructive. Note that K. Lenaerts is a judge at the ECJ... (you will find this article very useful also when we will talk about directives and their legal effects in national legal systems).
Finally, a very interesting and illuminating jurisprudential analysis of the relationship between legal orders (or systems) in the EU is offered by Julie Dickson here: "How Many Legal Systems? Some Puzzles Regarding the Identity Conditions of, and Relations between, Legal Systems in the European Union."
What can make your life easier:
Weiler’s “The Autonomy of the Community Legal Order: through the looking Glass” was originally published in Harvard Journal of International Law, accessible at Oxford from Hein On-line or JSTOR. Maduro’s ‘Europe and the Constitution: What if this is As Good As It Gets?’ can be downloaded here (pdf). So you do not have to go to the Library and copy these; you can print them off instead. Both Weiler and Maduro are THE ones who have shifted the EU constitutional debate to the new fields and are definitely worth reading.
(2) Additional Questions for Essays
5. “[The general principles of Community law] enabled the Court – often drawing inspiration from legal traditions common to the Member States, and international treaties – to guarantee and add content to legal principles in such important areas as the protection of fundamental rights and administrative law. However, it lies in the nature of general principles of law, which are to be sought rather in the Platonic heaven of law than in the law books, that both their existence and their substantive content are marked by uncertainty”. (AG Mazák in Case C-411/05 Palacios de la Villa, [86])
Discuss. Where do the general principles of Community law come from? To qualify as such, does a principle need to be recognized by all Member States? Which institution is empowered by existence of general principles?
6. Read Kadi v Council and Commission (C-402/05 P and C-415/05 P) carefully. How does the Court explain that its review of the contested regulation will not challenge the primacy of the UN Security Council resolution in international law? Compare this to how member state constitutional courts justify their authority to control constitutionality of EC law in their legal orders.
Back to main page.
