Volume 9, Issue 3

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.

The doctrine of proportionality has wide, growing transcontinental application in the realm of constitutional rights adjudication. Indian constitutional law is no exception to this trend. This article documents the use of proportionality analysis by the Indian Su­preme Court in cases involving the right to free speech. While it is clear that the proportionality analysis has been employed by the Apex Court, it is argued that the application of the doctrine is partial and inconsistent.

This paper presents research on a typical subject in comparative law: doctrinal thinking about (and teaching methods for) administrative law in Brazil and the United States. The paper’s initial research hypotheses are as follows: 1) in contrast to the United States, in Brazil, legal scholarship (legal academic writing) has significantly influenced the construction of the theoretical principles that form the basis of the public administration system; 2) the Brazilian understanding of administrative legal scholarship is distinct from that of the United States regarding several specific but representative issues; 3) in Brazil, administrative law textbooks and monographs focus on general principles and direct state intervention, whereas in the United States, administrative law education focuses on regulatory issues; and 4) regulatory (and policy or decision-making) concepts are more complex than they initially appear. These initial hypotheses will either be confirmed or refuted at the end of the study. The methodological research scope is an analysis of the study, teaching, and theoretical approach to the science of administrative law through a comparison of the two systems. The conclusions aim to assist legal researchers in both countries by broadening the understanding of the differences in meaning between apparently similar institutions and expressions while analyzing relevant semiological differences. Therefore, the paper does not represent an analysis of the particular legal systems but instead offers a methodology for understanding the two jurisdictions under consideration.

Over the past decade, the European Court of Human Rights (ECtHR) seems more and more inclined to use foreign sources of law, that is to say, law that does not originate in the Convention itself or in one of the Member States of the Council of Europe. Unlike in the US, there is little discussion in Europe about this form of judicial dialogue in the case-law of the ECtHR. This paper seeks both to clarify transnational dialogue by the ECtHR and find ways to justify this practice, against the backdrop of the American debate on this topic. First, the concept of transnational judicial dialogue is analysed (Part II). Then judicial dialogue as it presents itself in the judgments of the ECtHR is assessed, especially when non-Convention or foreign law is being used in a substantive way (Part III). Subsequently, an attempt is made to define when and why the use of foreign law by the ECtHR can be considered a justifiable approach in judicial decision-making (Part IV). The paper rounds off with some concluding remarks (Part V).

Before the Czech Republic joined the European Union in 2004, its constitution has been amended with objective to guarantee constitutional conformity of the EU accession. The Czech legal system has been opened to external legal provisions and a constitutional mechanism has been established for transfer of competencies to an external entity, all framed by the explicitly formulated constitutional principle of loyalty to the international obligations of the Czech Republic. However, the ‘European amendment’ of the Czech Constitution has left several important issues unanswered, such as the principle of supremacy of the EU law or relations between the Czech Constitutional Court and the Court of Justice of the EU. This article analyses how the Czech Constitutional Court tackled with EU-related constitutional issues that emerged during the first decade of Czech membership in the EU. Focused on four key cases decided by the Czech Constitutional Court (sugar quotas, European Ar­rest Warrant, Lisbon Treaty, Slovak Pensions), the article will demonstrate how the Czech Constitutional Court combined a conservative and pragmatic approach in its EU law related case-law by formulating a constitutional doctrine of a ‘EU-friendly’ interpretation of Czech constitutional rules, while, at the same time, leaving the EU law formally outside the frontiers of Czech constitutional law and refusing EU law to be used as the ultimate argument in intra-judiciary disputes in the Czech Republic.