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The National Courts' Mandate in the European Constitution : Modern Studies in European Law - Monica Claes

The National Courts' Mandate in the European Constitution

Modern Studies in European Law

Hardcover

Published: 31st March 2006
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The reform of the European Constitution continues to dominate news headlines and has provoked a massive debate, unprecedented in the history 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 doctrines 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 (constitutional 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-constitutional 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 relationship 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, leaving them apparently on collision course with the ECJ in the areas of judicial 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 perspective of the national courts as the starting point for a wide-ranging examination 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.

The greatest strength of this book lies...in its descriptive comprehensiveness which has been conducted in a way that has preserved both the transparency and coherence of the topics discussed...the quality of this book shall make it a mandatory point of reference to all students of European integration, especially to those who want to have a wide and deep insight into EU law, both at the same time. Matej Avbelj European Law Books 2008 ...comprehensive and well-written...a valuable handbook in particular on the national courts view on European integration for the Member States examined. It constitutes a lasting contribution to European constitutional law, understood as a law that is shaped at the European and at the national level. Franz Mayer Common Market Law Review, Vol 44, No 2 Apr-07 The title of this book would suggest that it is limited to discussing the matter in the framework of the constitutional treaty, but the author goes well beyond this. Bulletin Quotidien Europe, No 9229/695 July 2006 ... Claes' book will remain a helpful and lasting repository for anyone studying the EU legal framework and looking for highly-informed perspectives on the experience of its institutinalization. Law and Politics Book Review, Vol 16, no. 9 Emilian Kavalski September 2006 So weit der Bogen ist, den das Werk spannt, ist es aufgrund seiner Massgaben fur die Fachgerichtsbarkeit doch von unmittelbarer Bedeutung fur das Gemeinschaftsprivatrecht. Professor Dr. Hanno Kube Zeitschrift fur Gemeinschaftsprivatrecht 1/2007

Introduction : the judge, his mandate, the national constitution and European Union lawp. 1
Setting the stagep. 3
The theoretical frameworkp. 27
The national courts as common courts of European lawp. 39
Introductionp. 41
Before the west was won : a touch of legal archaeologyp. 45
The creation of a community mandate for national courtsp. 58
The duty to review national law : the 'Simmenthal mandate'p. 69
Refining the mandate : second generation issuesp. 119
The 'Simmenthal mandate' embracedp. 149
About legal ordersp. 166
The constitutional limits of the judicial functionp. 214
Explaining acceptancep. 246
Excursion : the 'Costanzo mandate' of administrative authoritiesp. 266
The 'Francovich mandate' : jurisdiction to hold the state liable for breach of community lawp. 279
The court of justice and national constitutional jurisdictions : La Guerre des Juges?p. 385
Introductionp. 387
Introducing the actors : 'courts having constitutional jurisdiction'p. 391
La Guerre des Juges?p. 452
Prior review of the constitutionality of treatiesp. 465
A Posteriori constitutional review of the treatiesp. 495
Preventive constitutional review of the constitutionality of secondary lawp. 535
Judicial review of secondary European Union law by national courts?p. 559
The national courts' mandate and the future of the European Unionp. 651
Introductionp. 653
Towards a European constitutionp. 655
The principle of supremacyp. 666
Incorporation of the national courts' mandate?p. 680
Fundamental rightsp. 684
Kompetenz Kompetenzp. 709
Conclusionp. 732
Table of Contents provided by Blackwell. All Rights Reserved.

ISBN: 9781841134765
ISBN-10: 1841134767
Series: Modern Studies in European Law
Audience: BAC
Format: Hardcover
Language: English
Number Of Pages: 818
Published: 31st March 2006
Publisher: Bloomsbury Publishing
Country of Publication: GB
Dimensions (cm): 23.5 x 15.88  x 3.81
Weight (kg): 1.02
Edition Number: 1