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An Exercise in Legal Honesty: Re-writing the Court of Justice and the Bundesverfassungsgericht

Everson, Michelle

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Corporate Editor Institut für Höhere Studien (IHS), Wien
Abstract At a time of crisis – a true state of emergency – both the Court of Justice of the European Union and the German Federal Constitutional Court have failed the rule of law in Europe. Worse still, in their evaluation of the ersatz crisis law, which has been developed in response to financial and sovereign debt crises, both courts have undermined constitutionality throughout Europe. Each jurisdiction has been implicated within the techocratisation of democratic process. Each Court has contributed to an incremental process of the undermining of the political subjectivity of European Citizens. The results are depressing for lawyers who are still attached to notions of constitutionality. Yet, we must also ask whether the Courts could have acted otherwise. Given the original flaws in the construction of Economic and Monetary Union, as well as the politically pre-emptive constraints imposed by global financial markets, each Court might thus be argued to have been forced to suspend immediate legality in a longer term effort to secure the character of the legal jurisdiction as a whole. Crisis can and does defeat the law. Nevertheless, what continues to disturb is the failure of law in Europe to open up any perspective for a return to normal constitutionality post crisis, as well as its apparent inability to give proper and honest consideration to the hardship now being experienced by millions of Europeans within crisis. This contribution accordingly seeks to reimagine each Judgment in a language of legal honesty. Above all, this contribution seeks to suggest a new form of post-national constitutional language; a language which takes as its primary function, proper protection of democratic process against the ever encroaching powers of a post-national executive power.
Keywords European Court of Justice; Federal Constitutional Court; constitutional state; political development; EU; EU citizen; European Law; stabilization policy; Maastricht Treaty; human rights convention; EU Treaty; European Central Bank; political influence
Classification Judiciary; Law; European Politics
Document language English
Publication Year 2014
City Wien
Page/Pages 40 p.
Series Reihe Politikwissenschaft / Institut für Höhere Studien, Abt. Politikwissenschaft, 136
Status Published Version
Licence Deposit Licence - No Redistribution, No Modifications