Published in Europe


Forthcoming and Work in Progress

Articles

Case Notes

Book Reviews

Others

Published in the Czech Republic



Forthcoming and Work in Progress

Reasoning with Previous Decisions: Beyond a Doctrine of Precedent, work in progress


Constitutional Pluralism in Europe and Beyond, co-edited with M Avbelj, forthcoming in Hart


From Comparing “Precedent” to “Reasoning with Previous Decisions”, forthcoming in M Adams and J Bomhoff (eds), The Study of Comparative Law (Cambridge, Cambridge University Press)



Articles

Judicial Lawmaking and Precedent in Supreme Courts, LSE Legal Studies Working Paper No. 4/2011, available here [SSRN]
This is a significantly updated version of the article published two years earlier in Cambridge Yearbook of European Legal Studies (see below).


Institutional Dimension of Constitutional Pluralism, forthcoming in M Avbelj and J Komárek (eds), Constitutional Pluralism in Europe and Beyond (Hart, Oxford 2011), published as Eric Stein Working Paper No. 3/2010
Constitutional pluralism, through its contestation of finality and conclusiveness, highlights the role of particular institutions which take decisions of constitutional significance. This paper argues that this institutional dimension is one of constitutional pluralism’s principal virtues. Most theories of European constitutionalism do not recognize this and leave important questions unexplored. Those that do so focus too much on conflict and choice. The paper proposes the reorientation of institutional analysis toward communication and involvement.


Judicial Lawmaking and Precedent in Supreme Courts: The European Court of Justice Compared to the US Supreme Court and the French Cour de cassation, (2008-2009) 11 Cambridge Yearbook of European Legal Studies 399
What does it mean for a supreme court to “make law”? When is it possible to say that its decisions are “precedents?” To what extent should a supreme court’s pronouncements be taken into account by others – lower courts and political branches? And how should these other actors reason with such precedents? This article shows how a particular approach to judicial lawmaking and precedent shapes answers to these questions and examines them in relation to the US Supreme Court and the French Cour de cassation. The findings are then used for a critical analysis of the European Court of Justice’s case law. It is suggested that while the US and French systems have found some ways of reconciling judicial lawmaking with the basic premises of their constitutional and political systems (although they are not entirely satisfactory), the EU system is still waiting for a satisfactory account of the Court’s lawmaking and precedent. The concluding part indicates directions of possible further research, which would address the problems encountered by the Court’s case law.


Questioning Judicial Deliberations, (2009) 29 Oxford Journal of Legal Studies 805, final draft available here [SSRN]
Mitchel Lasser’s Judicial Deliberations compares the argumentative practices of the French Cour de cassation, the US Supreme Court, and the European Court of Justice, and examines how they achieve judicial legitimacy. In this review I firstly question the models of judicial legitimacy presented by Lasser. I believe that the French ‘institutional’ model relies far more on the interplay between the Cour de cassation and the legislature than on the system of selection of those who take part in the judicial discourse or on their conception of law which would deny judicial decision a place among the sources of law. I also have doubts about the lack of institutional means of judicial control and the emphasis on ‘argumentative transparency,’ which lies at the core of Lasser’s presentation of the US system. Finally the Court of Justice, somewhat included rather as an afterthought in the book’s central analysis, in my opinion faces rather different problems from those identified in the book. Secondly, I discuss a deeper problem of Judicial Deliberations: its lack of conceptual clarity and the rather scant evidence it provides for some of its bold claims. In conclusion I make the case for a ‘comparative jurisprudence’ approach, suggested some time ago by William Ewald, which in my view Judicial Deliberations follows only in name.


"In the Court(s) We Trust?" On the need for hierarchy and differentiation in the preliminary ruling procedure, (2007) 32 European Law Review 467, final draft available here [SSRN]
The article advocates limitation of national lower courts' power to send preliminary references according to Article 234 of the EC Treaty. It shows that many arguments against this are not sufficiently thought out and are used rather mechanically. It proposes the following: 1. Limiting preliminary ruling procedure to courts of last instance as a rule; 2. As a necessary exception to 1, when a lower court considers that one or more arguments for invalidity, put forward by the parties or as the case may be raised by it of its own motion, are well founded, it must stay proceedings and make a reference to the Court for a preliminary ruling on the act's validity; 3. As a possible exception to 1, the Council can decide which EU law measures may be subject to preliminary references from lower courts. The proposal sees national judicial hierarchy as an important element of the Union judicial process, which can make the preliminary ruling procedure rational and effective, while keeping its original purpose. At the same time it suggests some measures that strike the balance between judicial protection of individuals and effectiveness. The key idea behind the proposal is the need for more trust in national courts, if they are to be truly considered as Union courts.


European Constitutionalism and the European Arrest Warrant: In Search of the Limits of "Contrapunctual Principles", (2007) 44 Common Market Law Review 9, available here [pdf]
Substantively revised version of my previous article "European Constitutionalism and the European Arrest Warrant: Contrapunctual Principles in Disharmony" (see below). Adds a discussion of the "EAW Decision" of the Czech Constitutional Court and complements the original analysis, which questioned Kumm's "principle of best fit", by insights from general jurisprudence. It identifies the principle as a version of Dworkin's "law as integrity" and criticizes it from the standpoint of its jurisprudential opponents. The article highlights the importance of institutional choice amongst various processes - the judicial and political.


European Constitutionalism and the European Arrest Warrant: Contrapunctual Principles in Disharmony, Jean Monnet Working Paper No. 10/2005, available here [SSRN]
This paper examines two recent decisions of the Polish Constitutional Tribunal and the German Federal Constitutional Court, which both annulled national implementation of the EAW Framework Decision. After a brief discussion of these courts' reasoning and pointing out some of their questionable elements, the decisions are put into the context of contrapunctual law principles designed by M. P. Maduro to guide national courts when applying EU law. This serves a twofold aim: firstly to show that although both decisions' outcome was the same, each court took a fundamentally different approach in reaching its conclusion. Secondly the discussion aims at showing that contrapunctual law principles have their limits that correspond to the limits of legal interpretation and reasoning. M. Kumm's principle of best fit and his analysis of constitutional conflict help to find reasons supporting this contention. It is highlighted by the particular context of each decision: the fact that constitutional courts may be increasingly protecting the sovereignty of their constitutions (which is even more true in case of post-communistic Member States) and the special character of the Area of Freedom Security and Justice. It is proposed however that since this limitation of contrapunctual law principles can lead to involvement of broad set of actors - politicians, constitutional doctrine and also the general public, it could be beneficial for creating a genuine EU constitution - may be not written, but not having to mask itself behind the word "treaty".


Pluralismo constitucional Europeo tras la ampliación. Un análisis de la jurisprudencia comunitaria del Tribunal Constitucional Polaco, translated to Spanish by D. Sarmiento, Revista Espanola de Derecho Europeo No 16/2005, English version available here [pdf]
Reviews the Polish Constitutional Tribunal's approach to European law in light of its two decisions: one concerning the European Arrest Warrant and the second Polish Accession Treaty. It puts the decisions into the context of current debates on the European constitutional treaty. The English version of the article entitled 'European Constitutional Pluralism in Action after the Enlargement: defending the constitutional identities of the new Member States' was presented at a conference Designing the European Union - 4th International Workshop for Young Scholars (WISH) organized by European Law Journal together with Centre d’Études et de Recherches Internationales et Communautaires Université Paul Cézanne (Aix-Marseille III) Faculté de droit et de science politique and College d’Europe de Natolin, 18 and 19 November 2005.


Federal Elements in the Community Judicial System – Building Coherence in the Community Legal Order, (2005) 42 Common Market Law Review 9, final draft available here [pdf]
Discusses the traces of hierarchisation in the EU judicial system, in the light of three decisions delivered by the Court of Justice at the turn of the year 2003 - Köbler, Kühne & Heitz and Commission v. Italy. By these decisions the ECJ implemented into the judicial system a kind of appeal and supported authority of its judgments by a sanction of liability in case of their not following by national supreme courts. The ECJ has made its judgments similar to precedents in federal judicial systems. The article however also shows some weaknesses of thus created system.


Creating a Quasi-Federal Judicial System of the European Communities, Institute for European Law at Stockholm University, No. 54, 2006, available here [SSRN]
Discusses the traces of hierarchisation in the EU judicial system, in the light of three decisions delivered by the Court of Justice at the turn of the year 2003 - Köbler, Kühne & Heitz and Commission v. Italy. By these decisions the ECJ implemented into the judicial system a kind of appeal and supported authority of its judgments by a sanction of liability in case of their not following by national supreme courts. The ECJ has made its judgments similar to precedents in federal judicial systems. The article however also shows some weaknesses of thus created system.


Inter-Court Constitutional Dialogue After the Enlargement – Implications of the Case of Professor Köbler, (2005) 1 Croatian Yearbook of European Law and Policy 75, available here [SSRN]
Discusses the traces of hierarchisation in the EU judicial system, in the light of three decisions delivered by the Court of Justice at the turn of the year 2003 - Köbler, Kühne & Heitz and Commission v. Italy. By these decisions the ECJ implemented into the judicial system a kind of appeal and supported authority of its judgments by a sanction of liability in case of their not following by national supreme courts. The ECJ has made its judgments similar to precedents in federal judicial systems. The article however also shows some weaknesses of thus created system.



Case Notes

Legal Professional Privilege and the EU's Fight Against Money Laundering, (2008) 27 Civil Justice Quarterly 13, available here [SSRN]
The article comments on a recent judgment of the European Court of Justice in Case C-305/05, Ordre des barreaux francophones and germanophone & Others v Conseil des Ministres, where the Court reviewed the legality of the obligation to inform and cooperate with competent authorities, which is imposed on the legal profession by Directive 91/308/EEC (the 1991 Directive) in respect of money laundering. The case comment is divided into four sections. First, it gives a brief comparison of the scope of LPP provided by the English courts and by the ECJ's previous case law. Secondly, the context of the case is set out. Thirdly, it examines a particular problem that arose in the case, namely that too narrow a question was referred to the ECJ by the Belgian court. Because of this the ECJ was able to limit its review of the 1991 Directive's legality to its compatibility with LPP in light of the right to a fair trial and the respect of rights of defence. As a necessary corollary the ECJ did not examine other aspects of the rationale which underlies LPP i.e., that it protects rights, such as the right to privacy and serves to fulfil a number of different aims i.e., better administration of justice or compliance with law. As a consequence the ECJ has left the exact scope of LPP in the EU ambiguous. This could lead to further difficulties, since it is not clear whether e.g. United Kingdom's implementation of the Directive is compatible with its requirements.


Infringements in Application of Community Law: Some Problems and (Im)possible Solutions, (2007) Zero Issue of the Review of European Administrative Law 87, available here [pdf]
On the basis of Case C-508/03 Commission v. United Kingdom [2006] ECR I-3969 this article shows some problems brought by an infringement procedure, concerning a particular case of misapplication of EC law by Member State’s public authorities. Firstly, some individuals can benefit from the infringement. How is their legal position affected by the ECJ’s judgment? Secondly, is it appropriate for the Commission to bring the action to the ECJ before the case has been finally settled on the national level? Thirdly, are these individuals properly represented before the Court?



Book Reviews

Book Review of The Fundamentals of EU Law Revisited: Assessing the Impact of the Constitutional Debate?, Collected Courses of the Academy of European Law, edited by Catherine Barnard, (2008) 45 Common Market Law Review 597, available here [pdf]


Book Review of L'autorité de l'Union européenne, edited by Loic Azoulai and Laurence Burgorgue-Larsen, (2007) 44 Common Market Law Review 1529 (2007), available here [SSRN]


Book Review of The National Courts' Mandate in the European Constitution, by Monica Claes, (2006) 25 Yearbook of European Law 661, available here [SSRN]


Others

The Czech Constitutional Court's Second Decision on the Lisbon Treaty of 3 November 2009, edited translated excerpts from the decision, published in (2009) 5 European Constitutional Law Review 345


Four Visions of Constitutional Pluralism, transcript from a symposium organized together with Matej Avbelj, with Julio Baquero Cruz, Mattias Kumm, Miguel Poiares Maduro and Neil Walker, EUI Working Paper Law No. 2008/21 available here [SSRN], also published in (2008) 2 European Journal of Legal Studies 325; a short report was published also in (2008) 4 European Constitutional Law Review 524
What is constitutional pluralism? What does it stand for? What does it want to achieve, contribute, or change in the European integration? Is it a viable, desirable or perhaps even an indispensable theoretical take on it? These were the leading questions discussed in the Symposium "Four Visions of Constitutional Pluralism" at the European University Institute in January of this year. Within the framework of the Legal Theory Working Group and under the auspices of the Academy of European Law, the organizers, Matej Avbelj and Jan Komarek, hosted four key scholars from the field of the EU legal and constitutional theory. Julio Baquero Cruz, Mattias Kumm, Miguel Poiares Maduro, and Neil Walker engaged in a groundbreaking three-hour discussion of their respective theoretical visions of the European integration. This working paper contains a full transcript of the Symposium.




Anonymous US scholar: "Publish or perish!"