Michaela Hailbronner

The European Court of Justice and Citizenship of the European Union: New Developments Towards a Truly Fundamental Status

Abstract In two recent, revolutionary decisions, - Janko Rottmann C-135/08 and Ruiz Zambrano C-34/09 - the European Court of Justice has firmly emancipated the status of citizenship of the Union from the “cross-border” requirement and has inaugurated a new area for the protection of rights closely linked to the core of sovereignty of States, - nationality and residence. This Article examines these two judgments and argues that they take the construction of citizenship towards a federal status. The “genuine enjoyment of the substance of citizenship rights” has emerged as a new legal category that is capable of providing a uniform and general protection and entails the affirmation of a core of rights of a supranational nature. This new development raises questions as to whether the ECJs expansionist reading of citizenship constitutes a legitimate exercise of judicial power and as to what will be the relationship between citizenship and EU fundamental rights. We conclude by exploring the potential of the judgments analyzed in terms of placing Union citizenship at the center of the emergence of a constitutional patriotism in Europe.

Traditions and Transformations: The Rise of German Constitutionalism

German constitutionalism has gained a central place in the global comparative debate, but what underpins it remains imperfectly understood. Its distinctive conception of the rule of law and the widespread support for its powerful Constitutional Court are typically explained in one of two ways: as a story of change in reaction to National Socialism, or as the continuation of an older nineteenth-century line of constitutional thought that emphasizes the function of constitutional law as a constraint on state power. But while both narratives account for some important features, their explanatory value is ultimately overrated.This book adopts a broader comparative perspective to understand the rise of the German Constitutional Court. It interprets the particular features of German constitutional jurisprudence and the Courts strength as a reconciliation of two different legal paradigms: first, a hierarchical legal culture as described by Mirjan Damaska, building on Max Weber, as opposed to a more co-ordinate understanding of legal authority such as prevails in the United States, and secondly, the turn towards a transformative understanding of constitutionalism, as it is today most often associated with countries such as South Africa and India.Using post-war legal history and sociological and empirical research in addition to case law, this book demonstrates how German constitutionalism has harmonized the frequently conflicting demands of these two legal paradigms, resulting in a distinctive type of constitutional reasoning, at once open, pragmatic, formalist, and technical, which this book labels Value Formalism. Value Formalism, however, also comes with serious drawbacks, such as a lack of institutional self-reflection in the Courts jurisprudence and a closure of constitutional discourse to laymen, whom it excludes from the realm of legitimate interpreters.

Overcoming obstacles to North-South dialogue: Transformative constitutionalism and the fight against poverty and institutional failure

Global South legal comparison is taking off, and transformative constitutionalism has become one of its key slogans as a description of the expansive constitutional jurisprudence of many Global South courts. This is an important development. But its celebration as a distinctively Southern model risks foreclosing debate with the North/West, whose supposedly more traditional liberal model of constitutionalism is treated as an unappealing counterpoint by Southern scholars. This paper sets out to challenge this conceptual bifurcation, calling on both Northern and Southern scholars to engage more seriously with each other. In particular, it argues that a number of perceived obstacles to North-South exchanges, such as more widespread problems of poverty and institutional failure in Southern countries, should not be understood as obstacles to mutual learning.

Das letzte Wort im Vergleich

„Wer das letzte Wort hat? Das ist einfach: Meine Frau.“ – Launig eröffnete der AltPräsident des Schweizer Bundesgerichtes, Lorenz Meyer, seinen Festvortrag zur – von den Gastgebern exzellent organisierten – 53. Assistententagung Öffentliches Recht in Bern. Weniger einfach zu beantworten waren die rechtswissenschaftlichen Fragen, die das Tagungsthema „Das letzte Wort – Rechtssetzung und Rechtskontrolle in der Demokratie“ aufwarf. Die Wechselwirkungen zwischen Verfassungsgerichtsbarkeit und demokratischen Entscheidungsprozessen beschäftigen die Rechtswissenschaft seit langem, bereiten aber angesichts von Verfassungswandel, Europäisierung und Internationalisierung stets neue Herausforderungen. Wie sehr sich das Nachdenken über diese Herausforderungen heute rechtsvergleichend vollzieht, machte die Assistententagung einmal mehr deutlich. Rechtsvergleichende Überlegungen waren in nahezu allen Beiträgen und Diskussionen präsent – bedingt gleichermaßen durch das Thema, den Tagungsort im deutschsprachigen Ausland und das internationale Referentenund Teilnehmerfeld.

Werner Heun, The Constitution of Germany: A contextual analysis, Hart Publishing, 2011, ISBN 978-1841138688, 241 pp.

Werner Heun’s 2011 book ‘The Constitution of Germany: A contextual analysis’ forms part of a series ‘Constitutional Systems of the World’, consisting so far of 15 volumes on different countries, with more forthcoming. The series aims to provide ‘accessible introductions to the constitutional systems of the world (...) both a road map for the novice and, at the same time, a deeper understanding of the key historical, political, and legal events which have shaped the constitutional landscape of each country’.1 No doubt, a propitious enterprise in the German context: Since German legal discourse traditionally focuses on doctrinal scholarship designed to improve the functioning of the system, both political context and deeper cultural analysis are often neglected. A short contextual analysis of the Court therefore promises to fill a gap in both the German and English literature on the German Constitution. (Kommers and Millers’ now-classic ‘Constitutional Jurisprudence’ offers a good introduction to the topic, but it is lengthy.) The German Court’s rise to its current position of authority also offers rich material for such a book. We might learn, for example, about the Court’s cautious first steps and its initial controversies with the Adenauer administration over the question of German rearmament and the Court’s self-authorization in its Statusdenkschrift.2 Case studies of the Court’s early landmarks, such the now-famous Lüth decision with its importance as a symbol for engaging with the recent Nazi past, make for potentially fascinating reading.3 Heun’s book offers a decent short introduction to German constitutional law for any outsider, and it will certainly be helpful as a basis for further reading, but it only scratches the surface when it comes to context or presenting a bigger picture. The author offers a good way in to some of the peculiarities of German constitutional law with its particular tradition and idea of the state and a brief overview of the historical evolution of constitutionalism in Germany up until the debates of the German framers about the Basic Law. Generally, however, he presents a summary of standard textbook accounts of constitutional law, accompanied by some political background – useful for an outsider, but mostly well-known to anyone reasonably acquainted with the German political system. After a short discussion of questions of legitimacy, the author digs deep into constitutional doctrine, first setting out the basic principles of the Basic Law such as democracy and the idea of the Rechtsstaat. The next chapter on federalism, one of the book’s highlights, emphasizes the cooperative and executive nature of the German federal system as opposed to the more competitive US model. Since party political lines often dominate the relationship between federation and states, this frequently leads to political