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    The author discusses the recent ECJ judgments in the cases Egenberger and IR on religious discrimination.


Andrzej Marian Świątkowski
Andrzej Marian Świątkowski, is a Jean Monet Professor of European Labour Law and Social Security, Jesuit University Ignatianum, Krakow, Poland and a member of the EELC Academic Board.
Article

Access_open The Court of the Astana International Financial Center in the Wake of Its Predecessors

Journal Erasmus Law Review, Issue 1 2019
Keywords international financial centers, offshore courts, international business courts, Kazakhstan
Authors Nicolás Zambrana-Tévar
AbstractAuthor's information

    The Court of the Astana International Financial Center is a new dispute resolution initiative meant to attract investors in much the same way as it has been done in the case of the courts and arbitration mechanisms of similar financial centers in the Persian Gulf. This paper examines such initiatives from a comparative perspective, focusing on their Private International Law aspects such as jurisdiction, applicable law and recognition and enforcement of judgments and arbitration awards. The paper concludes that their success, especially in the case of the younger courts, will depend on the ability to build harmonious relationships with the domestic courts of each host country.


Nicolás Zambrana-Tévar
LLM (LSE), PhD (Navarra), KIMEP University.
Article

Access_open International Commercial Courts in France: Innovation without Revolution?

Journal Erasmus Law Review, Issue 1 2019
Keywords international commercial court, dispute resolution, business court, Brexit, judicial system
Authors Alexandre Biard
AbstractAuthor's information

    In 2018, in the wake of Brexit, the French legal profession took several important measures to strengthen the competitiveness of France and the French legal system, and to make Paris an attractive go-to-point for businesses when the latter have to deal with international commercial litigation. When taking a closer look at it, Brexit is only the top of the iceberg, and has mostly served as a catalyst. Reasons explaining the development of international commercial courts in France are manifold. They are consequences of long-standing efforts aimed at boosting the French judicial marketplace to adapt it to the requirements of globalization and to the expectations of multinational corporations. The setting-up of the French international business courts has made several procedural adjustments necessary. Although the latter undoubtedly represent clear innovations, they however do not constitute a full-blown revolution. France has indeed decided to maximize already-existing procedural rules, combined with a new organisational format inspired by the Common Law tradition. If it remains too early to draw clear conclusions on the impact of these new developments, it is essential to keep our ears to the ground, and to be forward-looking. We should carefully consider the possible side-effects on the French justice system considered as a whole, and in particular wonder whether these international commercial courts might in the future open the door to broader far-reaching evolutions within the judicial system. Finally, the multiplication of international business courts across Europe nowadays triggers some questions concerning the role and potential added value of an EU initiative in this domain.


Alexandre Biard
Postdoctoral researcher, Erasmus University Rotterdam.

    The Latvian Supreme Court recently used the ECJ Max Planck and Kreuziger judgments to explain how an employer can escape its obligation to compensate an employee for unused leave at the end of the employment relationship. The employer must prove that (a) it was possible for the employee to use the leave, and (b) the employer has in good time informed the employee that leave, if not used, might be lost and will not be compensated.


Andis Burkevics
Andis Burkevics is a senior associate with the Latvian office of law firm SORAINEN, www.sorainen.com.
Article

Managing Procedural Expectations in Small Claims ODR

Journal International Journal of Online Dispute Resolution, Issue 1 2019
Keywords fair trial, procedural justice, natural justice, waiver, small claims, consumer disputes, proportionality
Authors Fabien Gélinas
AbstractAuthor's information

    In this article, the author reflects on the appropriate place of traditional procedural guarantees in the resolution of consumer and small claims disputes using online tools. After examining the key aspects of procedural justice that constitute the right to a fair trial and analysing its effects on procedures designed for low-value disputes, the article argues for a flexible approach that takes procedural proportionality seriously.


Fabien Gélinas
Fabien Gélinas is Sir Wiliam C. Macdonald Professor of Law, McGill University, Co-Founder of the Montreal Cyberjustice Laboratory and Head of the Private Justice and the Rule of Law Research Team. The preparation of this article was made possible by grants from the SSHRC and the FQRSC. Thanks go to Dr Giacomo Marchisio and Ms Leyla Bahmany for their kind assistance. This article was originally published in Immaculada Barral (ed.) La resolución de conflictos con consumidores: de la mediation a las ODR (Madrid: Editorial Reus, 2018).
Article

Access_open Mobile Individualism: The Subjectivity of EU Citizenship

Journal Netherlands Journal of Legal Philosophy, Issue 1 2019
Keywords Individualism, EU Citizenship, Depoliticisation, Mobile Individualism, Citizenship and Form of Life
Authors Aristel Skrbic
AbstractAuthor's information

    The central aim of this article is to analyse the manner in which the legal structure of EU citizenship subjectifies Union citizens. I begin by explicating Alexander Somek’s account of individualism as a concept which captures EU citizenship and propose to update his analysis by coining the notion of mobile individualism. By looking at a range of CJEU’s case law on EU citizenship through the lens of the purely internal rule and the transnational character of EU citizenship, I suggest that movement sits at the core of EU citizenship. In order to adequately capture this unique structure of citizenship, we need a concept of individualism which takes movement rather than depoliticisation as its central object of analysis. I propose that the notion of mobile individualism can best capture the subjectivity of a model EU citizen, a citizen who is a-political due to being mobile.


Aristel Skrbic
Aristel Skrbic is a PhD candidate and teaching and research assistant at the Institute of Philosophy at the KU Leuven.
Article

Fiscal Consolidation in Federal Belgium

Collective Action Problem and Solutions

Journal Politics of the Low Countries, Issue 2 2019
Keywords fiscal consolidation, fiscal policy, federalism, intergovernmental relations, High Council of Finance
Authors Johanna Schnabel
AbstractAuthor's information

    Fiscal consolidation confronts federal states with a collective action problem, especially in federations with a tightly coupled fiscal regime such as Belgium. However, the Belgian federation has successfully solved this collective action problem even though it lacks the political institutions that the literature on dynamic federalism has identified as the main mechanisms through which federal states achieve cooperation across levels of government. This article argues that the regionalization of the party system, on the one hand, and the rationalization of the deficit problem by the High Council of Finance, on the other, are crucial to understand how Belgium was able to solve the collective action problem despite its tightly coupled fiscal regime and particularly high levels of deficits and debts. The article thus emphasizes the importance of compromise and consensus in reducing deficits and debts in federal states.


Johanna Schnabel
School of Politics and International Relations, University of Kent, Rutherford College, Canterbury CT2 7NX, United Kingdom.
Rulings

ECJ 4 December 2018, case C-378/17 (Minister for Justice and Equality and Commissioner of the Garda Síochána), Discrimination, General

Minister for Justice and Equality, Commissioner of An Garda Síochána – v – Workplace Relations Commission, Irish case

Journal European Employment Law Cases, Issue 1 2019
Keywords Discrimination, General
Abstract

    On 8 November 2018 the Italian Constitutional Court prohibited the reform of the protection against unfair dismissal introduced by the so-called Jobs Act (Legislative Decree no. 23 of 4 March 2015), insofar as it imposed a requirement on the judge to quantify the compensation due for unfair dismissal based on an employee’s seniority only. According to the Court, such a requirement violated not just internal constitutional norms, but also Article 24 of the (Revised) European Social Charter of 1996. This contribution focuses particularly on the EU law questions deriving from such an important judgment.


Andrea Pilati
Andrea Pilati is an Associate Professor of Labour Law at the University of Verona, Italy.
Article

Constitutional Resilience and Unamendability

Amendment Powers as Mechanisms of Constitutional Resilience

Journal European Journal of Law Reform, Issue 3 2019
Keywords constitutional change, constitutional resilience, unamendability, constitutional identity
Authors Xenophon Contiades and Alkmene Fotiadou
AbstractAuthor's information

    This article aims to explore the relationship between unamendability and constitutional resilience. Inspired by Roznai’s theory on the limits of amendment powers, this article seeks to examine how such limits may function as a mechanism of constitutional resilience exploring how unamendability may impact the resilience of a constitution, allowing it to withstand crises while retaining its core functions. The key question is whether entrenchment enhances resilience through its protective shield or, by contrast, fetters resilience by foreclosing adaptability – what does not bend often breaks. The complex relationship between unamendability and constitutional resilience unfolds in the context of different amendment patterns.


Xenophon Contiades
Xenophon Contiades is Professor of Public Law, Panteion University; Managing Director of the Centre for European Constitutional Law, Athens, Greece.

Alkmene Fotiadou
Alkmene Fotiadou is Research Fellow, Centre for European Constitutional Law.
Article

The Eternity Clause

Lessons from the Czech Example

Journal European Journal of Law Reform, Issue 3 2019
Keywords eternity clause, constitutional amendment, Czech Republic
Authors Ondřej Preuss
AbstractAuthor's information

    This article presents lessons from the Czech example of the so-called Eternity Clause’ i.e. a legal standard declaring certain principles, values or specific constitutional provisions to be unalterable and irrevocable. The Eternity Clause is viewed and applied in the Czech Republic as a substantive legal ‘instrument’ that enables society to preserve its values. It is used to limit practical ‘power’ and to maintain desired values and the political system.
    That the Eternity clause is a practical instrument has already been proved by the Czech Constitutional Court in its famous ‘Melcák’ decision. However, recent developments show that the Czech Constitutional Court is no longer open to such a ‘radical’ approach. Nonetheless, it still seems that the court is prepared to defend the values of liberal democracy, just not in such a spectacular way. It is, therefore, more up to the political actors or the people themselves to use Eternity Clause arguments to protect liberal democracy and its values.


Ondřej Preuss
Faculty of Law, Charles University (preuss@prf.cuni.cz). This article was written under the “Progress 04: Law in a Transforming World” programme.
Article

From Supra-Constitutional Principles to the Misuse of Constituent Power in Israel

Journal European Journal of Law Reform, Issue 3 2019
Keywords unconstitutional constitutional amendment, constitutional law, constitutional principles, constituent power, Israel, judicial review
Authors Suzie Navot and Yaniv Roznai
AbstractAuthor's information

    Israel has no one official document known as ‘the Constitution’ and for nearly half a century was based on the principle of parliamentary sovereignty. Still, since the ‘constitutional revolution’ of the 1990s, Israel’s supreme norms are expressed in its basic laws and laws are subject to judicial review. This situation is the result of the enactment of two basic laws dealing with human rights in 1992 – which included a limitation clause – and of a judicial decision of monumental significance in 1995, the Bank Hamizrahi case. In that decision, the Supreme Court stated that all basic laws – even if not entrenched – have constitutional status, and therefore the currently accepted approach is that the Knesset indeed dons two hats, functioning as both a legislature and a constituent authority. The novelty of the Bank Hamizrahi decision lies in its notion of a permanent, ongoing constituent authority. The Knesset actually holds the powers of a constitutional assembly, and legislation titled ‘Basic-Law’ is the product of constituent power. Though it is neither complete nor perfect, Israel’s constitution – that is, basic laws – addresses a substantial number of the issues covered by formal constitutions of other democratic states. Furthermore, though this formal constitution is weak and limited, it is nonetheless a constitution that defends the most important human rights through effective judicial review.
    Still, given the ease with which changes can be made to basic laws, the special standing of basic laws differs from the standing generally conferred on a constitution. Most basic laws are not entrenched, which means that the Knesset can alter a basic law by a regular majority. Over the past few years, there has been a tendency towards ad casum amendments of basic laws. These amendments are usually adopted against a background of political events that demand an immediate response on the part of the Knesset. The latter then chooses the path of constitutional – not regular – legislation, which is governed by a relatively smooth legislative passage procedure. Even provisional constitutional amendments were passed with relative ease followed by petitions presented to the Supreme Court, arguing that the Knesset’s constituent power is actually being ‘abused’.
    These petitions, as well as Israel’s peculiar constitutional development, presented the Supreme Court with several questions as to the power for judicial review of basic laws. Thus far, the Court’s endorsement of judicial review was based on the limitation clause found in both basic laws on human rights, but limitation clauses do not establish the criteria for a constitutional violation by constitution provisions. Does this mean that the Knesset’s constituent power is omnipotent?
    This article examines the almost unique position of Israeli jurisprudence in relation to the doctrine of ‘unconstitutional constitutional amendments’. It focuses on the possibility of applying the doctrine in the Israeli case laws, the often-raised notion of ‘supra-constitutional’ values that would limit the Knesset’s constituent power, and a third – newly created – doctrine of abuse (or misuse) of constituent power. A central claim of this article is that in light of the unbearable ease with which basic laws can be amended in Israel, there is an increased justification for judicial review of basic laws.


Suzie Navot
Suzie Navot is Full Professor, the Haim Striks School of Law, College of Management Academic Studies, Rishon Lezion.

Yaniv Roznai
Yaniv Roznai is Senior Lecturer, Harry Radzyner Law School, Interdisciplinary Center (IDC) Herzliya.
Article

Limited Constitutional Amendment Powers in Austria?

Journal European Journal of Law Reform, Issue 3 2019
Keywords total revision, amendment, constitutional principles
Authors Manfred Stelzer
AbstractAuthor's information

    In Austria, constitutional amendments can be attained rather easily. A two-thirds majority in parliament allows for engineering constitutional amendments. The Austrian constitution only knows one exception to its flexibility: the principles of the constitution (‘Verfassungsprinzipien’). When the constitutional principles were to be affected by formal amendment in terms of a ‘total revision’ (‘Gesamtänderung’), a higher threshold needs to be met in order to engineer an amendment. In addition to a two-thirds majority in parliament, a referendum is required. Two questions are of particular interest: First, when does a constitutional amendment amount to a total revision and what are its limits? Second, and even more important, which core principles are recognized by the Austrian constitution and what is their content? These questions may be briefly outlined.


Manfred Stelzer
Manfred Stelzer is Professor of Public Law at the University of Vienna.
Article

Unamendability and Constitutional Identity in the Italian Constitutional Experience

Journal European Journal of Law Reform, Issue 3 2019
Keywords Unamendability, constitutional identity, republic, counterlimits, European integration, Italy
Authors Pietro Faraguna
AbstractAuthor's information

    The article explores the historical roots of the explicit unamendable clause(s) in the Italian Constitution. Following, it explores the scholarly debate over the interpretation of unamendable provisions. The article investigates theories of implicit unamendability of the Italian Constitution, and, in particular, it analyses the crucial role played by the Constitutional Court of Italy (ICC) and the principles that characterize Italian constitutional identity. Furthermore, the article explores the other side of constitutional identity, namely the theory of ‘counterlimits.’ The ICC specified that constitutional identity not only sets a limit to constitutional amendment powers but also sets ‘counterlimits’ to the entry of external norms (i.e., supranational and international law) in the domestic legal system. Finally, the article draws some conclusions and argues that the two sides of constitutional identity, although legally and logically independent, mutually reinforce each other and, ultimately, reinforce the counter-majoritarian nature of unamendability.


Pietro Faraguna
Pietro Faraguna is Assistant professor of constitutional law, University of Trieste.
Article

Constitutional Narcissism on the Couch of Psychoanalysis

Constitutional Unamendability in Portugal and Spain

Journal European Journal of Law Reform, Issue 3 2019
Keywords unamendable/ eternity clauses, de jure and de facto constitutional change, constitutional narcissism, foundational design, helicopter founding fathers, constitutional alma mater
Authors Catarina Santos Botelho
AbstractAuthor's information

    Comparing the Portuguese Constitution, which has the longest unamendable clause in the world, with the silence of the Spanish Constitution regarding the language of eternity is indeed a fascinating exercise. Each state’s quantum of constitutional change seems to be quite different. One can wonder how two neighbouring states that share a heavy history of right-wing dictatorships and transitioned to democracy forty years ago opted for such dissimilar constitutional designs. However, appearances are often misleading, and an effort should be done to unveil this curious mismatch.
    Both legal orders suffer from what I call constitutional narcissism, which manifests itself through the urge to perpetuate the foundational constitutional moment. Unamendable clauses (Portugal) and quasi-unamendable clauses (Spain) recast one of constitutional theory’s inner paradoxes: Can the constituent power of the people be petrified in one historical constituent decision and constrain future democratic transitions? And what if a volatile contemporary majority seeks to undermine the democratic process and run against the constitutional DNA achievements of the last centuries?
    Even if the original version of the Portuguese Constitution prohibited several provisions from ever being amended, some of these provisions were indeed modified or removed in the 1989 constitutional amendment process. This occurred without major disagreement from the political organs, scholars, or the judiciary. Therefore, the vexata quaestio remains unanswered: Given their obsolescence or hindrance towards good governance, should entrenchment clauses be eliminated de jure (through a channelled constitutional amendment process, such as the double amendment procedure) or de facto (through a revolutionary process materialized outside of the constitutional framework)?


Catarina Santos Botelho
Assistant Professor and Department Chair of Constitutional Law at the Porto Faculty of Law, Universidade Católica Portuguesa. Email: cbotelho@porto.ucp.pt. I thank Paul Kahn, Nuno Garoupa, Richard Albert, Gonçalo Almeida Ribeiro, Yaniv Roznai, Ana Teresa Ribeiro, and Luís Heleno Terrinha for their very helpful comments.
Article

Constitutional Unamendability in the Nordic Countries

Journal European Journal of Law Reform, Issue 3 2019
Keywords the Nordic constitutions, constitutional unamendability, explicit limits, implicit limits, supra-constitutional limits, review of constitutional amendments
Authors Tuomas Ojanen
AbstractAuthor's information

    With the exception of the Constitution of Norway, the Constitutions of Denmark, Finland, Iceland and Sweden are silent on any substantive limits to the power of constitutional amendment. Until now, the topic of constitutional unamendability has also attracted very little attention in Nordic constitutional scholarship.
    However, some idiosyncrasies making up the identity of the Nordic constitutions, as well as constitutional limits to Nordic participation in European integration, may implicate the existence of some implicit limits to amendment powers. Similarly, international human rights obligations binding upon the Nordic countries, as well as European Union law and European Economic Area law, may impose some external, supra-constitutional limitations on the powers of Nordic constitutional amenders. However, the existence of any implicit or supra-constitutional unamendability is speculative in the current state of evolution of Nordic constitutionalism. This is even more so since the use of constitutional amendment powers are beyond judicial review by the Nordic courts.


Tuomas Ojanen
Tuomas Ojanen is Professor of Constitutional Law, University of Helsinki, contact: tuomas.ojanen@helsinki.fi.

Lech Garlicki
Lech Garlicki is a Former Judge of the European Court of Human Rights and a Professor of constitutional law at the University of Warsaw.

Yaniv Roznai
Yaniv Roznai is Senior Lecturer, Harry Radzyner Law School, IDC Herzliya.
Article

A View on the Future of Judicial Review of Constitutional Amendments in Turkey

An Invitation to Judicial Dialogue

Journal European Journal of Law Reform, Issue 3 2019
Keywords basic structure doctrine, Constitutional Court of Turkey, constitutional identity, judicial dialogue, immunity amendment, unconstitutional constitutional amendments
Authors Ali Acar
AbstractAuthor's information

    In this article, I discuss and analyse the Turkish case concerning judicial review of constitutional amendments in light of a recent decision by the Constitutional Court of Turkey (CCT). In the said decision, the CCT rejected carrying out judicial review over a controversial constitutional amendment, which lifted MPs’ parliamentary immunity. This decision urges to consider its implications for the possible future cases. I refer to comparative constitutional law with the hope to shed more light on the Turkish example and grasp it comprehensively. In this respect, I illustrate the most crucial arguments developed by the Supreme Court of India (SCI), the Bundesverfassungsgericht (BVG), and the Conseil Constitutionnel (FCC) in their case law. Based on the comparative account, I draw some lessons for the CCT and invite it to get into a judicial dialogue with other supreme/constitutional courts with regard to the issue.


Ali Acar
Cankaya University Faculty of Law and visiting researcher at Osgoode Hall Law School. I thank Richard Albert, Vicente F. Benítez-Rojas, and Mehmet Turhan for their comments and critiques, which were insightful to develop the ideas in this article.
Article

Judicial Review of Constitutional Amendments in Turkey

The Question of Unamendability

Journal European Journal of Law Reform, Issue 3 2019
Keywords judicial review of constitutional amendments, constitutional unamendability, judicial activism, competitive authoritarianism, abusive constitutionalism
Authors Ergun Özbudun
AbstractAuthor's information

    This article deals with the judicial review of constitutional amendments, which has been a hotly debated constitutional and political issue in Turkey, particularly with regard to the unamendable provisions of the constitution. Since its creation by the Constitution of 1961, the Turkish Constitutional Court has followed a markedly activist and tutelarist approach regarding this issue and annulled several constitutional amendments arguing that they violated the unamendable provisions of the Constitution. Recently, however, the Court adopted a self-restraining approach. This shift can be explained as part of the political regime’s drift towards competitive authoritarianism and the governing party’s (AKP) capturing almost total control over the entire judiciary.


Ergun Özbudun
Ergun Özbudun is Professor of Constitutional Law at İstanbul Şehir University. This is an enlarged and updated version of my article ‘Judicial Review of Constitutional Amendments in Turkey’, European Public Law, Vol. 15, No. 4, 2009, pp. 533-538.
Article

Transitional Constitutional Unamendability?

Journal European Journal of Law Reform, Issue 3 2019
Keywords transitional constitutionalism, constitutional unamendability, decline of constitutional democracy, constitution-making in Hungary, the Hungarian Constitutional Court
Authors Gábor Halmai
AbstractAuthor's information

    This article discusses the pros and cons for a suggestion to use unamendable provisions in transitional constitutions to protect the integrity and identity of constitutions drafted after a democratic transition. The presumption for such a suggestion could be that most democratic constitution-making processes are elite-driven exercises in countries with no or very little constitutional culture. The article tries to answer the question, whether in such situations unamendable constitutional provisions can help to entrench basic principles and values of constitutionalism with the help of constitutional courts reviewing amendments aimed at violating the core of constitutionalism. The article investigates the experiences of some backsliding constitutional democracies, especially Hungary, and raises the question, whether unamendable constitutional provision could have prevented the decline of constitutionalism.
    In order to discuss the issue of transitional unamendability, the article engages in the scholarly discussion on transitional constitutionalism in general, and deals with the relationship of constitutional law and constitutional culture. Another side topic of the article is whether such transitional unamendability provisions should also contain international or transnational values and principles, and what happens if those are not in conformity with the unamendable provisions that serve to build up a national constitutional identity. Again, the example of Hungary can be important here, how national constitutional identity protected by the Constitutional Court can serve to abandon the European constitutional whole.


Gábor Halmai
Gábor Halmai is Professor and Chair of Comparative Constitutional Law, European University Institute, Florence; email: gabor.halmai@eui.eu.
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