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View or edit your browsing history. Get to Know Us. English Choose a language for shopping. So far the decrease of the deficit has been achieved by a reduction in public spending , , , or an increase always below the increase in nominal GDP , , , , , which has reduced the weight of expenditure in relation to GDP from If we look at consolidated spending the figure is a little lower than the percentages of spending in relation to GDP cited by the Ministry of Finance, being , million euros by , approximately 6, million higher than the , million in , representing a 1.
This proposal never gained a majority in Congress. Quite in contrast to that debate, the Law of the European Union explicitly relies on comparison.
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It offers an example of comparative constitutional law that matters. Justice Scalia would probably not like that. But the purpose of this contribution is not to engage in a comparative analysis of the US Supreme Court and the CJEU with a view to their use of comparative law. Rather, it intends to demonstrate how the CJEU—in contrast to the US Supreme Court—uses comparative constitutional law regularly and as a matter of course in its jurisprudence, as well as to analyze whether this practice has had any effect on the public law culture of a given member state. For the purpose of this article, the discussion will focus on Germany, 5 and more specifically on national constitutional courts, national executives, and legislators, as well as academic scholarship.
Constitutional comparativism in action raises a number of questions. Of course, there has been critique in the EU context as well Section 3. Section 4. There is also a conceptual dimension related to the fact that the highest court in the EU engages in constitutional comparison Section 5. The case law of the CJEU is one of the most visible examples of a systematic comparison of constitutional law with a relevant practical purpose.
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With no bill of fundamental rights in the founding treaties of the s, this approach was mainly about fundamental rights forming an integral part of the general principles of law the observance of which is ensured by the CJEU, without, however, being the only category of general principles. This means that the comparison also extends to public international law treaties. The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November and as they result from the constitutional traditions common to the Member States, as general principles of Community law.
One example particularly obvious from a German perspective is that of the general freedom of action allgemeine Handlungsfreiheit —a cornerstone of the German fundamental rights architecture as it allows for the protection of activities that do not fall under the special guarantees, such as the freedom of speech, assembly etc. It is not clear yet whether this general freedom of action is protected in a similar way at the EU level. There is a substantial element of balancing, assessing, and interpreting the respective constitutional traditions, always with a view to perspectives, the potential, and the possible developments at the European level.
National constitutional orders form some kind of raw material for developing European law further. The Court has conducted comparative activities mainly in the context of fundamental rights protection. It complements them. Article 6 1 refers to the Charter and makes it binding primary EU law. Article 6 3 upholds fundamental rights as they derive from the common traditions of the member states. They also include elements that are not contained in the Charter.
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So there is still room for comparative activities of the Court, and there is still some justification for reflecting on them. This prerogative comes at a price. Most commentators seem to agree that there are no reliable criteria that allow one to predict what the CJEU will consider as a principle or a right. Indeed, a fundamental right prohibiting age discrimination, detected by the CJEU in Mangold , was explicitly laid down in only a few member state constitutions.
The case involved several issues, such as the horizontal effect of directives, in addition to the methodological question of what qualifies as a common constitutional tradition, and it is therefore of only limited use in the present context. Ultimately, even the German Constitutional Court did not openly confirm that the CJEU had it wrong in its assessment of a common constitutional tradition. Over time and encouraged by the reference in article 6 TEU, the CJEU has increasingly emphasized the importance of the European Convention on Human Rights, which all member states have signed, as a common constitutional ground.
What also appears to be obvious is that the CJEU cannot simply engage in a copy—paste effort. Detailed doctrinal concepts are often too much the result of historical developments and tailored to the specific member state constitutional order. The CJEU would rather use the member state traditions to detect a fundamental rights theme. And it is true that there is not much comparative analysis in the text of CJEU decisions. This is easy to explain through the specific connection between EU fundamental rights protection and the ECHR mentioned earlier.
It is all too easy, however, to look only at the final text of a CJEU decision. First, there is the tradition of keeping CJEU decisions close to the Cartesian style of French law, with the Court just stating what the law is, without any dissenting opinions or any explanation as to the origin of the insights, as opposed to the Anglo-American approach of narrative, epic court decisions.
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These notes form an impressive mine of comparative law in the actual decision-making, while remaining invisible in the final ruling. Conclusions of a given Advocate General add to the comparative law resource. And of course statements by the member states in the case and by the Commission Legal Service also bring comparative law aspects to the attention of the CJEU. Considering all this, the CJEU appears to be in a unique position. It benefits from what could be called the perfect conditions for comparative work.
It is not only the infrastructure of legal translators that ensures that basically any given legal text, no matter in what language, can be made accessible for all the judges.
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There are also unique sociological conditions at the Court. This makes it possible to have a comparative law exchange in a very informal way without having to wait for research notes to be finalized.
At the same time, even under nearly optimal conditions for comparative law at the CJEU, certain questions remain unresolved. This may have to do with the fact that the more member states are included in a comparison, the longer the preparation takes. The consideration of all member states in a given case would not be mandatory for the Court, anyway. The relevant legal orders will become visible in most cases with the respective member states participating and explaining their legal situation.
But what if the depiction by a member state conflicts with the results of the research done at the Court to prepare the case? Speaking of conflicts: what if common constitutional traditions of the member states emerge from a comparison which clearly conflicts with the ECHR or other international treaties which the CJEU must also take into account? Against this background, it is probably true that the Court should do more to share its knowledge. At the least, it could make the preparatory work that currently remains hidden backstage available to the public.
This work should be published as a matter of transparency and also as a contribution to comparative law knowledge. The fact that unresolved issues persist even under the most favorable conditions for legal comparison, indicates that comparative law will always have to deal with imperfections. There will always remain a doubt as to whether the relevant legal orders have been included in a given comparison and whether the law in question has been correctly contextualized.
This is not a bug of comparative law, it is a feature. And maybe it is true that it is not possible to prevent legal comparison from being used as a veil of rationality to cover up bias. The formula of the CJEU about drawing inspiration from comparison turns out to be quite appropriate, as it captures the inevitable incompleteness of comparative law. There is some reason in asking whether the landscape of public law is changing in EU member states due to their EU membership.
Did it foster a more general comparative culture among 1 domestic courts, 2 the national executive and legislative branches, or 3 legal scholarship? After all, national constitutional courts operate within a state: they are state institutions. Therefore, one could object to a comparison between national constitutional courts and the CJEU, arguing that the EU is not considered to be a state; 27 one could further point out that it is based on an international treaty, 28 rather than a constitution.
According to conventional wisdom, constitutional courts are not the champions of comparativism. The standard argument here is that their task is to interpret the domestic constitution and that there is simply no need for them to engage in comparative efforts. The reality is slightly more complicated than that. When the structure of international law calls for comparison, even the German Constitutional Court has to follow.
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Thus, the question of whether a principle may be considered a general prin ciple of public international law leads the German Constitutional Court to look at great detail into various legal orders. Examples like this exist in the case law of most constitutional or supreme courts; they prove that comparing legal orders is possible in those courts, and that the comparison can even extend to legal orders that appear difficult to access because of linguistic barriers. As a general trend, it appears to be correct that beyond cases where the norm in question calls for comparison, comparative efforts remain few and far between in the case law of constitutional and supreme courts in the EU.
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This is true even in the context of European constitutional law. There are, however, occasional references of a comparative nature. One simple explanation could be that there is no need for national constitutional courts to engage in comparativism as there are, in general, no gaps in domestic legal orders that resemble the absence of a written bill of rights at the EU level.