The Constitutional Integrity of the European Union
, by Amtenbrink, Fabian; Van Den Berg, Peter A. J.- ISBN: 9789067043342 | 9067043346
- Cover: Hardcover
- Copyright: 10/1/2010
Preface | p. V |
Acknowledgements | p. VII |
Contributors | p. XV |
List of Abbreviations | p. XVII |
Lost in translation? On the role of national constitutions in the European constitutional order | p. 1 |
The constitutional integrity of the state | p. 1 |
Constitutional integrity in denationalising legal orders | p. 3 |
Constitutional integrity in the European Union | p. 7 |
This edited volume's contribution to the debate | p. 10 |
The integrative function of constitutions: A historical perspective | p. 13 |
Constitutions as instruments of state building | p. 13 |
The Batavian Revolution of 1795: Democratic and patriotic | p. 19 |
State formative practices and the Dutch Constitution of 1798 | p. 22 |
Ideological integration | p. 22 |
In search of a people | p. 22 |
Fundamental rights | p. 29 |
Citizenship | p. 34 |
Integration in specific fields | p. 37 |
Territorial and administrative integration | p. 37 |
Financial integration | p. 40 |
Economic and social integration | p. 43 |
Legal integration | p. 45 |
Lessons to be learned | p. 47 |
History decides? Lessons from the constitutional debates in the Frankfurt Parliament of 1848 | p. 55 |
Integration through deliberation | p. 55 |
Frankfurt 1848 | p. 58 |
Association: The Duchy of Limburg | p. 60 |
Demarcation: Poznan | p. 65 |
Separation: Trentino | p. 67 |
Lessons learned | p. 69 |
Europe and the constitutional legal model in the light of political law | p. 73 |
Introduction | p. 73 |
The nature of the constitutional legal model | p. 75 |
European law facing the contradictions of the constitutional legal model | p. 80 |
Conclusion | p. 86 |
Lost in transition? From domestic integration through national constitutions to supranational integration through European constitutionalism | p. 89 |
Introduction | p. 89 |
Contents of the concept of 'constitution' and its integrative function | p. 91 |
The 'constitution' as definition of the competences of public power and of its organisation | p. 91 |
The 'constitution' as protection of the rights of the individuals | p. 93 |
The 'constitution' as normative guarantee of the legitimation of public power | p. 94 |
The'constitution'as foundation of the identity of the political community | p. 96 |
Recent development of EU primary law, in particular with regard to constitutional integration | p. 97 |
The primary law of the EU as the definition of the competences of the European public power and of its organisation | p. 97 |
The primary law of the EU as the guarantee of an adequate protection of fundamental rights | p. 100 |
The primary law of the EU as the normative guarantee of the legitimation of the Union's public power | p. 102 |
The primary law of the EU as the foundation of the identity of the European political community | p. 104 |
The Lisbon Treaty: A rejection of the European constitution and a part of European constitutionalism | p. 105 |
Is social integration possible beyond the national constitutional identity? | p. 107 |
The doctrine of 'counterlimits' of the Italian Corte Costitnzionale | p. 107 |
The defense of citizenry by the Spanish Tribunal Constitucional | p. 108 |
Pouvoir constituant and supranational integration in the adjudication of the Conseil Constitutionnel | p. 109 |
The substantive understanding of the national identity and the limits to the supranational integration set by the Bundesverfassungsgericht | p. 110 |
Conclusion | p. 115 |
The relationship between the European and the national legislatures from the perspective of constitutional integrity | p. 117 |
Introduction | p. 117 |
Dealing with national discretion in EU legislation | p. 119 |
Type of legal instrument as an indication for national discretion? | p. 122 |
Legal basis as an indication for national discretion? | p. 125 |
The legal instrument itself? | p. 127 |
National discretion under ex post scrutiny by the ECJ | p. 127 |
Gold plating | p. 128 |
National discretion in EU legislation and constitutional integrity | p. 130 |
Pursuing constitutional integrity at the national level: A case study on Dutch attempts to speed up the EU implementation process | p. 131 |
The legislative function after 'Lisbon' | p. 136 |
A coherent set of legal acts | p. 137 |
Legislative procedure | p. 137 |
Legislation and regulation | p. 138 |
Legislative acts | p. 139 |
Delegated acts and implementing acts | p. 140 |
National and European legislative power converging after Lisbon? | p. 142 |
Conclusions | p. 144 |
The humiliation of the state as a constitutional tactic | p. 147 |
Introduction | p. 147 |
Second-class citizens | p. 148 |
Rights for migrants | p. 148 |
Substantive equality and beyond | p. 149 |
A remedy worse than the disease? | p. 155 |
The humiliation of the state | p. 159 |
The right to opt out | p. 165 |
The threat of abandonment | p. 172 |
Conclusions | p. 173 |
The right stuff? On the transformation of the protection of rights | p. 175 |
Fundamental rights in EU law: In search of gains and losses | p. 175 |
Test case: Freedom of expression | p. 176 |
Protection of rights in the EU | p. 178 |
Freedom of expression in Community courts | p. 181 |
Expression and the internal market | p. 181 |
Confidentiality and freedom of expression | p. 184 |
Carry your load | p. 187 |
Data protection, privacy and access to information | p. 189 |
Copy, right? | p. 194 |
Commercial speech | p. 195 |
Concluding remarks | p. 199 |
The constitutionality of competition. European internal market law and the fine line between markets, public interests, and self-regulation in a changing constitutional setting | p. 201 |
Introduction | p. 201 |
The constitutional context of the EU internal market rules | p. 207 |
Legality | p. 208 |
Legitimacy | p. 210 |
The internal market rules | p. 211 |
An overview of the internal market rules | p. 211 |
The fundamental freedoms | p. 212 |
The rules on distortions of the conditions of competition | p. 214 |
The rules on distortions of competition | p. 215 |
Top-down, bottom-up, and legislative influences on the internal market | p. 220 |
Case studies on the fine line between markets, public interests, and self-regulation | p. 222 |
The free movement of capital and universal services | p. 222 |
Article 106(2) TFEU and compensation of costs of public service obligations | p. 225 |
The useful effect doctrine and partial self-regulation | p. 230 |
Of constitutions, capture, competition, and democracy | p. 234 |
The integrity of European criminal law co-operation: The nation state, the individual, and the area of freedom, security, and justice | p. 237 |
Introduction | p. 237 |
The notion of European criminal law | p. 238 |
Why criminal law mutual recognition? | p. 241 |
The function of trust: How the EU legitimises the phenomenon of 'EU criminal law co-operation' | p. 243 |
The difficulties with trust | p. 246 |
Trusting trust | p. 246 |
Non-discrimination, Union citizenship and the AFSJ: What are the answers sought with regard to the losses caused by supranational involvement? | p. 249 |
Freedom and trust | p. 251 |
Security as trust? | p. 254 |
Short comment on concrete examples of losses at the Member State level: The legislative domain | p. 255 |
Justice: Or why Solange cannot be trusted | p. 257 |
A regional model: A possible solution | p. 259 |
Conclusion | p. 261 |
Postscript | p. 262 |
Index | p. 263 |
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