Erosion of Constitutional Rights in EU Law: A Call for ‘Substantive Co-operative Constitutionalism’
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Anneli Albi
Anneli Albi is Professor of European Law at the University of Kent.
Abstract
Part 1 of this paper (published in the previous issue) documented comparative case law in a number of areas - from the single market to the Data Retention Directive, European Arrest Warrant, ESM Treaty and constitutional review - where constitutional rights and rule of law safeguards have been levelled downwards in the context of implementation of EU law in different Member States. Here, Part 2 of the paper propounds the concept of ‘substantive co-operative constitutionalism’, exploring how European constitutional law and the European constitutional law discourse could be recalibrated towards a greater responsiveness to substantive constitutional values. Part 2 starts by outlining an increasing shift from the mindset and vocabulary of classic, comparative (continental) European constitutional law, to a more formal, procedural, thin version of EU constitutionalism, where the keywords are supremacy, uniformity, direct effect, autonomy, effectiveness and trust. Indeed in the context of democracy and legitimacy in transnational governance, some scholars have written about the ‘erosion’, ‘twilight’ or ‘decline’ of constitutionalism or ‘the end of constitutionalism as we know it’. More recently, Euro crisis measures have prompted heightened concerns about the prolonged and perhaps even irreversible suspension of constitutionalism, the Rechtsstaat and democracy. Yet in the mainstream EU and transnational constitutional law discourse, such concerns have generally received limited attention. The article traces the reasons for the shift in the paradigm of constitutionalism on the basis of the literature on the epistemology of EU law and of transnational constitutional law, and argues that such a shift is not the only way forward. The paper then proceeds to outline some suggestions on how a more substantive version of co-operative constitutionalism could be operationalised in practice. This includes a significantly more probing and proactive role for the national constitutional courts, supreme courts and national parliaments, as well as the creation of mechanisms in the EU institutional and judicial framework for greater responsiveness to constitutional values and constitutional diversity.
About the author
Anneli Albi is Professor of European Law at the University of Kent.
© 2017 by Walter de Gruyter Berlin/Boston
Artikel in diesem Heft
- Table of Contents
- Articles
- Erosion of Constitutional Rights in EU Law: A Call for ‘Substantive Co-operative Constitutionalism’
- Where’s Waldo? Looking for the Doctrine of Proportionality in Indian Free Speech Jurisprudence
- Understanding Brazilian Administrative Law, the Related Literature, and Education: A Comparison with the System in the United States
- The European Court of Human Rights and Transnational Judicial Dialogue
- Notes & Essays
- EU Law in the Czech Republic: From ultra vires of the Czech Government to ultra vires of the EU Court?
- Developments Austria
- ‘No to Meat’-March on Holy Saturday - Freedom of Assembly and the Constitutional Court’s new Standard of Review
- Blackening of Files for Hypo Committee of Inquiry illegal
- Developments CEE
- Constitutional Court of Romania: Religion in Schools
- Constitutional Court of Romania: Constitutionalization of the Obligations under International Treaties and European Union binding Acts
- Slovak Constitutional Court: Citizenship Law in the European Context
- Book Reviews
- Review Essay: Jeff King, Judging Social Rights, Cambridge University Press, 2012, ISBN 9781107 400 320, 370 pp.
Artikel in diesem Heft
- Table of Contents
- Articles
- Erosion of Constitutional Rights in EU Law: A Call for ‘Substantive Co-operative Constitutionalism’
- Where’s Waldo? Looking for the Doctrine of Proportionality in Indian Free Speech Jurisprudence
- Understanding Brazilian Administrative Law, the Related Literature, and Education: A Comparison with the System in the United States
- The European Court of Human Rights and Transnational Judicial Dialogue
- Notes & Essays
- EU Law in the Czech Republic: From ultra vires of the Czech Government to ultra vires of the EU Court?
- Developments Austria
- ‘No to Meat’-March on Holy Saturday - Freedom of Assembly and the Constitutional Court’s new Standard of Review
- Blackening of Files for Hypo Committee of Inquiry illegal
- Developments CEE
- Constitutional Court of Romania: Religion in Schools
- Constitutional Court of Romania: Constitutionalization of the Obligations under International Treaties and European Union binding Acts
- Slovak Constitutional Court: Citizenship Law in the European Context
- Book Reviews
- Review Essay: Jeff King, Judging Social Rights, Cambridge University Press, 2012, ISBN 9781107 400 320, 370 pp.
