Constitutional Review in Europe: A Comparative Analysis

by Maartje De Visser

Overview

Constitutions serve to delineate state powers and enshrine basic rights. Such matters are hardly uncontroversial, but perhaps even more controversial are the questions of who (should) uphold(s) the Constitution and how constitutional review is organised. These two questions are the subject of this book by Maartje de Visser, which offers a comprehensive, comparative analysis of how 11 representative European countries answer these questions, as well as a critical appraisal of the EU legal order in light of these national experiences. Where possible, the book endeavours to identify Europe's common and diverse constitutional traditions of constitutional review.
The raison d'être, jurisdiction and composition of constitutional courts are explored and so too are core features of the constitutional adjudicatory process. Yet, this book also deliberately draws attention to the role of non-judicial actors in upholding the Constitution, as well as the complex interplay amongst constitutional courts and other actors at the national and European level. The Member States featured are: Belgium, the Czech Republic, Finland, France, Germany, Italy, Hungary, the Netherlands, Spain, Poland, and the United Kingdom.
This book is intended for practitioners, academics and students with an interest in (European) constitutional law.

Product Details

ISBN-13:	9781782252450
Publisher:	Bloomsbury Publishing
Publication date:	07/18/2014
Series:	European and National Constitutional Law Series
Sold by:	Barnes & Noble
Format:	eBook
Pages:	528
File size:	2 MB

About the Author

Maartje de Visser is an Assistant Professor of Law at the Singapore Management University. Prior to this, she held appointments at Maastricht University and Tilburg Law School in the Netherlands. This book is the culmination of research carried out between 2008 and 2013 when Maartje was a member of the European and National Constitutional Law (EuNaCon) Project, funded by the European Research Council (ERC).
Maartje De Visser is Assistant Professor of Law at the Singapore Management University.

Table of Contents

Introduction
Introductory Definitions: Constitutional Interpretation and Constitutional Review
Background: The Need for a Perspective Combining National and European Constitutional Law
Objectives
Method
Terminology
Structure
Chapter 1
The Role of Non-Judicial Actors in Upholding the Constitution
I. Introduction
II. Councils of State and Chancellors of Justice
III. Parliament and its Committees
IV. Heads of State
V. The People
VI. Concluding Remarks
Chapter 2
The Rise of Constitutional Adjudication
I. Introduction
II. The Notion of 'Constitutional Jurisdiction'
III. Exploring the Reasons behind the Rise of Constitutional Adjudication
IV. Bucking the Trend? A Closer Look at the Approaches of the Netherlands and the United Kingdom
V. Concluding Remarks and Some Brief Reflections on the Two European Courts
Chapter 3
Purposes of Constitutional Adjudication and Access to Constitutional Courts
I. Introduction
II. The Institutional Design of Constitutional Adjudication
III. Four Purposes that May be Served by Constitutional Adjudication
IV. Final Comparative Remarks and Reflections on the Court of Justice
Chapter 4
The Constitutional Bench
I. Introduction
II. Selection and Appointment Procedures
III. Number of Judges and Eligibility Criteria
IV. Tenure of Judicial Appointments and Termination Thereof
V. Final Comparative Remarks and Reflections on the Court of Justice
Chapter 5
Identifying the Sources of Standards for Constitutional Review
I. Introduction
II. Belgium: Cour constitutionnelle
III. Czech Republic: Ustavni Soud
IV. Germany: Bundesverfassungsgericht
V. France: Conseil constitutionnel
VI. Hungary: Alkotmanybirosag
VII. Italy: Corte costituzionale
VIII. Poland: Trybunal Konstytucyjny
IX. Spain: Tribunal Constitucional
X. The Netherlands: Raad van State
XI. United Kingdom: House of Lords Constitution Committee
XII. Finland: Perustuslakivaliokunta
XIII. European Union: Court of Justice
XIV. Comparative Remarks
Chapter 6
Testing and Remedying Unconstitutionality
I. Introduction
II. Deference Rhetoric
III. Theory of the Living Law
IV. Constitution-Conform Interpretation
V. Types of Judgment and their Effects
VI. Concluding Remarks
Chapter 7
Interplay between Constitutional Courts and Other Actors
I. Introduction
II. Interactions between Constitutional Courts and (Constitutional) Legislatures
III. Interactions between Constitutional Courts and the Ordinary Courts
IV. Interactions among European Constitutional Courts
V. Interactions between Constitutional Courts and the Court of Justice
VI. Interactions between National Highest and Constitutional Courts and the European Court of Human Rights
VII. Concluding Remarks

Editorial Reviews

... a highly welcome contribution as a well-researched handbook for all those interested in comparative constitutional legal studies in the Member States and the EU constitutional legal order....it offers plenty of 'pistes de refléxion' in the concluding section of each chapter and assembles a very helpful sample of legislative, jurisprudential and institutional developments in a well-chosen array of constitutional regimes of the EU and EU Member States.” —European Law Blog

“...this book is a veritable tour de force as it is a tour d'Europe.

Comparative analysis of constitutional review from a neutral perspective encompassing eleven states and the EU, is a highly ambitious project, one that de Visser has achieved in accomplishing with great skill and eloquence. As the first volume in the series European and National Constitutional Law, we may look forward eagerly to the next volume, and hope that it will prove as engaging, diverse, and insightful as this book is. For any practitioners, academic or scholar of constitutional law it is a highly recommended read.” —EUtopia Law Blog

“Ultimately, Maartje de Visser's comparative contribution to the exploration of the constitutional review issue should be warmly welcomed as an even-handed, lucidly written and insightful addition to the ever-swelling body of scholarship in this area. Whilst it may be easy to overlook the fact, the author has managed to construct, without superficiality and with well-paced order, a comprehensive and credible survey of constitutional review practices across Europe - a survey that is at once a heavy-duty piece of scholarship and a generally fascinating book.” —Cambridge Law Jourbanal, Volume 73

“[T]his book should be considered the new compulsory starting point for anyone interested in any key aspect of the constitutional adjudicatory process, and wishing to be quickly able to rely on authoritative points of comparison. … [I]t is difficult not to be struck by the quality of the research undertaken and the subtle nature of the analysis developed by the author on the basis of an impressive bibliography.

Written in an engaging style, which constantly holds the reader's attention, de Visser's monograph makes a decisive contribution to our understanding of the institution of constitutional review in Europe. There is little doubt that it will become a classic reference for the practitioners, academics and students of comparative constitutional law.” —International Jourbanal of Constitutional Law Blog (ICON-NECT)

“This forward-looking work is a thrilling travel through a winding and disregarded road, always looking to balance the general overview and a necessary didactical division of the work through the analysis of eleven representative European Countries.” —European Review of Public Law

“...definitely to be recommended to constitutional and EU law specialists as a major contribution to some of the most timely issues they have to deal with.” —European Constitutional Law Review

“[The book] succeeds in presenting the plurality of different solutions in carefully chosen comparative systems...it should be read by lawmakers and the drafters of any legislation regarding constitutional court...[and] is a priceless tool for any teacher looking for examples in comparative law to help students better appreciate the logic(s) of constitutional review.” —Common Law Market Review

From the Publisher