The present chapter analyses the normative response of Portugal to the coronavirus crisis. As in ... more The present chapter analyses the normative response of Portugal to the coronavirus crisis. As in other European Member States, the reaction to the pandemic was developed through a combination of enactment of the constitutional state of emergency, in the first and third phases, with the resort to the statutory administrative emergency regime. Under both frameworks, there has been a strengthening of the role of the executive at the expense of a parliamentary retreat. This chapter covers both responses to the pandemic and their shortcomings mainly concerning the lack of democratic legitimation of the fight against the pandemic in the face of a parliamentary circumvention and abdication.
This chapter investigates legal accountability of financial assistance from the perspective of bo... more This chapter investigates legal accountability of financial assistance from the perspective of borrower countries. It adopts an empirical approach taking the Portuguese case to test how accountability of the financial assistance programme, on the one hand, and of the national measures implementing conditionality, on the other, was exercised. The investigation focuses on the judicial review of austerity measures in different institutional contexts comprising the domestic constitutional court, the Court of Justice of the European Union (CJEU), and the European Court of Human Rights. It aims at assessing how far these judicial fora have delivered the accountability goods identified in the introductory chapter, particularly publicness, as the good oriented towards ensuring that public action is guided by common goods, namely that it respects the constitutional principles of equality and proportionality.
This special section features four comments concerning the impact of the Euro-crisis, ten years a... more This special section features four comments concerning the impact of the Euro-crisis, ten years after the start of the subprime mortgage crisis in the US, on the four Eurozone countries that probably have been affected the most. In fact, the year 2018 marked the end of the financial assistance programmes activated between 2010 and 2015 in favour of Ireland, Portugal, Spain Cyprus and Greece (which benefited from three rescue packages). These programmes were primarily financed through funds established within the European Union framework at large, by means of international agreements and having the Eurozone Member State as shareholders, as occurred in the case of the European Financial Stability Facility (EFSF) and of the European Stability Mechanism (ESM). To a lesser extent, the rescue of those Eurozone countries depended on the contribution of the International Monetary Fund (IMF) that has lent 26 billion euro to Portugal, 22.5 billion euro to Ireland, 1 billion euro to Cyprus and over 60 billion euro to Greece on the whole. Financial assistance was also conceded through bilateral loans (also by non-Eurozone countries): 80 billion euro in the framework of the first rescue package to Greece and 4.8 billion euro to Portugal. In comparison with the IMF and the bilateral assistance, the loans provided through the “European funds” was more generous by far. The European Financial Stabilisation Mechanism (EFSM), the only fund purely financed by the Union budget and regulated by EU law, in particular by Council Regulation (EU) No 407/2010 of 11 May 2010, provided for financial assistance to Portugal and Ireland for 26 and 22.5 billion euro, respectively. The EFSF contributed to the rescue of Portugal with 26 billion euro, of Ireland with 17.7 billion and of Greece, in the context of the second package of financial assistance, for a good 144 billion euro. Finally, the ESM, still in operation unlike the other funds, lent Spain 41.3 billion, Cyprus 9 billion and Greece over 60 billion euro, just in between 2015 and 2018. On the one hand, it is undeniable that these rescue packages to a great extent met the objectives of cutting public deficits and debts – or, at least, to slow down their sharp increase, like in Greece, where nonetheless the public debt rose from 299.7 in 2009 to 357.25 billion euro in 2018. On the other hand, the figures related to the GDP and to the employment are certainly not encouraging and the social costs have been and, in a number of cases still are, alarming. A report of the Commissioner for Human Rights of the Council of Europe, published in November 2018, shows the dramatic effects of the austerity measures on social rights in Greece. The national health care system is on the edge of collapse: from 2009 to 2012 pediatric health care services were cut down of 73%, in 2015 the percentage of those who cannot get access to medical treatments was four times higher than the European average, while the request of mental health treatments has grown exponentially and the number of those – parents who could no longer look after their children, bankrupt and unemployed people – who were subject to a mandatory psychiatric hospitalization has substantially increased. Workers’ rights and trade unions’ freedoms have been severely limited and the unemployment rate reached the peak of 23%; the number of homeless has quadrupled since 2009; the suicides have grown by 40% between 2010 and 2015 and the education system has been deeply affected as well as the level of preparation of the students due to the cut in the public spending. An analysis published by the OCSE in 2018 confirms that a million and a half people, above all young unemployed people, lives below the poverty line (in a country of around 11 million inhabitants). Moreover, of the 700000 people who are believed to have left Greece to look for job opportunities abroad since 2010, the greatest majority are young and very well educated, 92% of whom with a university degree; a serious loss for the future of the country in terms of skills and productivity. To make the situation even worse, it cannot be neglected that the birth rate has significantly dropped. A recent study hypothesizes that the size of the Greek population could decrease in a range between
The present chapter analyses the normative response of Portugal to the coronavirus crisis. As in ... more The present chapter analyses the normative response of Portugal to the coronavirus crisis. As in other European Member States, the reaction to the pandemic was developed through a combination of enactment of the constitutional state of emergency, in the first and third phases, with the resort to the statutory administrative emergency regime. Under both frameworks, there has been a strengthening of the role of the executive at the expense of a parliamentary retreat. This chapter covers both responses to the pandemic and their shortcomings mainly concerning the lack of democratic legitimation of the fight against the pandemic in the face of a parliamentary circumvention and abdication.
Themis - Revista da Faculdade de Direito da UNL, 2010
Este artigo analisa o debate que, ao longo de várias décadas, Ronald Dowrkin e Richard Posner têm... more Este artigo analisa o debate que, ao longo de várias décadas, Ronald Dowrkin e Richard Posner têm estabelecido, tocando diversas questões da Teoria do Direito. Focando as críticas mútuas, respostas e contra-respostas, numa perspetiva eminentemente cronológica, examinam-se os principais argumentos que orbita(ra)m em torno da análise económica do direito, do direito como integridade, do pragmatismo jurídico e da relação entre o direito e a moral. Na função judicial - enquanto modo como os juízes devem aplicar o direito - reside o fio condutor da análise.
This special section features four comments concerning the impact of the Euro-crisis, ten years a... more This special section features four comments concerning the impact of the Euro-crisis, ten years after the start of the subprime mortgage crisis in the US, on the four Eurozone countries that probably have been affected the most. In fact, the year 2018 marked the end of the financial assistance programmes activated between 2010 and 2015 in favour of Ireland, Portugal, Spain Cyprus and Greece (which benefited from three rescue packages). These programmes were primarily financed through funds established within the European Union framework at large, by means of international agreements and having the Eurozone Member State as shareholders, as occurred in the case of the European Financial Stability Facility (EFSF) and of the European Stability Mechanism (ESM). To a lesser extent, the rescue of those Eurozone countries depended on the contribution of the International Monetary Fund (IMF) that has lent 26 billion euro to Portugal, 22.5 billion euro to Ireland, 1 billion euro to Cyprus and...
The present chapter analyses the normative response of Portugal to the coronavirus crisis. As in ... more The present chapter analyses the normative response of Portugal to the coronavirus crisis. As in other European Member States, the reaction to the pandemic was developed through a combination of enactment of the constitutional state of emergency, in the first and third phases, with the resort to the statutory administrative emergency regime. Under both frameworks, there has been a strengthening of the role of the executive at the expense of a parliamentary retreat. This chapter covers both responses to the pandemic and their shortcomings mainly concerning the lack of democratic legitimation of the fight against the pandemic in the face of a parliamentary circumvention and abdication.
This chapter investigates legal accountability of financial assistance from the perspective of bo... more This chapter investigates legal accountability of financial assistance from the perspective of borrower countries. It adopts an empirical approach taking the Portuguese case to test how accountability of the financial assistance programme, on the one hand, and of the national measures implementing conditionality, on the other, was exercised. The investigation focuses on the judicial review of austerity measures in different institutional contexts comprising the domestic constitutional court, the Court of Justice of the European Union (CJEU), and the European Court of Human Rights. It aims at assessing how far these judicial fora have delivered the accountability goods identified in the introductory chapter, particularly publicness, as the good oriented towards ensuring that public action is guided by common goods, namely that it respects the constitutional principles of equality and proportionality.
This special section features four comments concerning the impact of the Euro-crisis, ten years a... more This special section features four comments concerning the impact of the Euro-crisis, ten years after the start of the subprime mortgage crisis in the US, on the four Eurozone countries that probably have been affected the most. In fact, the year 2018 marked the end of the financial assistance programmes activated between 2010 and 2015 in favour of Ireland, Portugal, Spain Cyprus and Greece (which benefited from three rescue packages). These programmes were primarily financed through funds established within the European Union framework at large, by means of international agreements and having the Eurozone Member State as shareholders, as occurred in the case of the European Financial Stability Facility (EFSF) and of the European Stability Mechanism (ESM). To a lesser extent, the rescue of those Eurozone countries depended on the contribution of the International Monetary Fund (IMF) that has lent 26 billion euro to Portugal, 22.5 billion euro to Ireland, 1 billion euro to Cyprus and over 60 billion euro to Greece on the whole. Financial assistance was also conceded through bilateral loans (also by non-Eurozone countries): 80 billion euro in the framework of the first rescue package to Greece and 4.8 billion euro to Portugal. In comparison with the IMF and the bilateral assistance, the loans provided through the “European funds” was more generous by far. The European Financial Stabilisation Mechanism (EFSM), the only fund purely financed by the Union budget and regulated by EU law, in particular by Council Regulation (EU) No 407/2010 of 11 May 2010, provided for financial assistance to Portugal and Ireland for 26 and 22.5 billion euro, respectively. The EFSF contributed to the rescue of Portugal with 26 billion euro, of Ireland with 17.7 billion and of Greece, in the context of the second package of financial assistance, for a good 144 billion euro. Finally, the ESM, still in operation unlike the other funds, lent Spain 41.3 billion, Cyprus 9 billion and Greece over 60 billion euro, just in between 2015 and 2018. On the one hand, it is undeniable that these rescue packages to a great extent met the objectives of cutting public deficits and debts – or, at least, to slow down their sharp increase, like in Greece, where nonetheless the public debt rose from 299.7 in 2009 to 357.25 billion euro in 2018. On the other hand, the figures related to the GDP and to the employment are certainly not encouraging and the social costs have been and, in a number of cases still are, alarming. A report of the Commissioner for Human Rights of the Council of Europe, published in November 2018, shows the dramatic effects of the austerity measures on social rights in Greece. The national health care system is on the edge of collapse: from 2009 to 2012 pediatric health care services were cut down of 73%, in 2015 the percentage of those who cannot get access to medical treatments was four times higher than the European average, while the request of mental health treatments has grown exponentially and the number of those – parents who could no longer look after their children, bankrupt and unemployed people – who were subject to a mandatory psychiatric hospitalization has substantially increased. Workers’ rights and trade unions’ freedoms have been severely limited and the unemployment rate reached the peak of 23%; the number of homeless has quadrupled since 2009; the suicides have grown by 40% between 2010 and 2015 and the education system has been deeply affected as well as the level of preparation of the students due to the cut in the public spending. An analysis published by the OCSE in 2018 confirms that a million and a half people, above all young unemployed people, lives below the poverty line (in a country of around 11 million inhabitants). Moreover, of the 700000 people who are believed to have left Greece to look for job opportunities abroad since 2010, the greatest majority are young and very well educated, 92% of whom with a university degree; a serious loss for the future of the country in terms of skills and productivity. To make the situation even worse, it cannot be neglected that the birth rate has significantly dropped. A recent study hypothesizes that the size of the Greek population could decrease in a range between
The present chapter analyses the normative response of Portugal to the coronavirus crisis. As in ... more The present chapter analyses the normative response of Portugal to the coronavirus crisis. As in other European Member States, the reaction to the pandemic was developed through a combination of enactment of the constitutional state of emergency, in the first and third phases, with the resort to the statutory administrative emergency regime. Under both frameworks, there has been a strengthening of the role of the executive at the expense of a parliamentary retreat. This chapter covers both responses to the pandemic and their shortcomings mainly concerning the lack of democratic legitimation of the fight against the pandemic in the face of a parliamentary circumvention and abdication.
Themis - Revista da Faculdade de Direito da UNL, 2010
Este artigo analisa o debate que, ao longo de várias décadas, Ronald Dowrkin e Richard Posner têm... more Este artigo analisa o debate que, ao longo de várias décadas, Ronald Dowrkin e Richard Posner têm estabelecido, tocando diversas questões da Teoria do Direito. Focando as críticas mútuas, respostas e contra-respostas, numa perspetiva eminentemente cronológica, examinam-se os principais argumentos que orbita(ra)m em torno da análise económica do direito, do direito como integridade, do pragmatismo jurídico e da relação entre o direito e a moral. Na função judicial - enquanto modo como os juízes devem aplicar o direito - reside o fio condutor da análise.
This special section features four comments concerning the impact of the Euro-crisis, ten years a... more This special section features four comments concerning the impact of the Euro-crisis, ten years after the start of the subprime mortgage crisis in the US, on the four Eurozone countries that probably have been affected the most. In fact, the year 2018 marked the end of the financial assistance programmes activated between 2010 and 2015 in favour of Ireland, Portugal, Spain Cyprus and Greece (which benefited from three rescue packages). These programmes were primarily financed through funds established within the European Union framework at large, by means of international agreements and having the Eurozone Member State as shareholders, as occurred in the case of the European Financial Stability Facility (EFSF) and of the European Stability Mechanism (ESM). To a lesser extent, the rescue of those Eurozone countries depended on the contribution of the International Monetary Fund (IMF) that has lent 26 billion euro to Portugal, 22.5 billion euro to Ireland, 1 billion euro to Cyprus and...
Springer Nature, Heidelberg & New York; Part of the Law, Governance and Technology Series book series (LGTS, volume 45) Also part of the Issues in Privacy and Data Protection book sub series (ISDP, volume 45), 2020
The book analyses the impact the jurisprudence of the constitutional courts of EU Member States a... more The book analyses the impact the jurisprudence of the constitutional courts of EU Member States and the Court of Justice of the European Union has had on the perception of freedom of communications in the digital era with respect to these courts’ judgments regarding regulating storage and access to telecommunications data (known as telecommunications data retention) from 2008 to 2017. To do so, it examines the jurisprudence of the constitutional courts of Austria, Bulgaria, Cyprus, Czech Republic, Ireland, Germany, Poland, Portugal, Romania, Slovenia, and Slovakia, i.e. those courts that have already ruled on domestic provisions regulating telecommunications data retention. Further, it investigates the judgments of the Court of Justice of European Union regarding directive 2006/24/EC regulating telecommunications data retention along with relevant jurisprudence of the European Court of Human Rights. As such, the book provides a comparative study of jurisprudence and national measures to implement the Data Retention Directive.
Moreover, the book discusses whether our current understanding of protection of freedom of communications guaranteed by the constitutions of EU member states and the EU Charter of Fundamental Rights, which was developed in the era of analogue communications, remains accurate in the era of digital technologies and mass surveillance (simultaneously applied by states and private corporations). In this context, the book reconstructs constitutional standards that currently apply in the EU towards data retention.
This book presents a unique comparative analysis of all judgments concerning Directive 2006/24/EC, which can be used in the legislative process on the EU forum aimed at introducing new principles of data retention and by constitutional courts in the context of comparative argumentation.
Este estudo constitui uma investigação sobre o modo como os tribunais portugueses reagiram, no pl... more Este estudo constitui uma investigação sobre o modo como os tribunais portugueses reagiram, no plano das decisões proferidas, aos efeitos da crise económica e financeira, tanto na circunstância da aplicação de legislação decorrente da crise, como em casos em que o contexto de emergência se repercutiu nas múltiplas situações de facto que, a partir de 2008, incorporaram algumas das dramáticas consequências económicas e sociais deste período. Partindo da análise de 557 decisões proferidas pelos tribunais superiores portugueses, descrevem-se as variações e diferentes dinâmicas da forma como a crise conseguiu entrar no discurso judicial e, eventualmente, influenciá-lo. Este estudo propõe um retrato detalhado e fundamentado do impacto da crise no discurso judicial e de como as decisões dos diversos tribunais se comportaram perante este fenómeno transformador da nossa vida coletiva.
The present chapter analyses the normative response of Portugal to the coronavirus crisis. As in ... more The present chapter analyses the normative response of Portugal to the coronavirus crisis. As in other European Member States, the reaction to the pandemic was developed through a combination of enactment of the constitutional state of emergency, in the first and third phases, with the resort to the statutory administrative emergency regime. Under both frameworks, there has been a strengthening of the role of the executive at the expense of a parliamentary retreat. This chapter covers both responses to the pandemic and their shortcomings mainly concerning the lack of democratic legitimation of the fight against the pandemic in the face of a parliamentary circumvention and abdication.
This chapter deals with the influence of foreign and international sources of law in the opinions... more This chapter deals with the influence of foreign and international sources of law in the opinions delivered by the Portuguese Constitutional Commission between 1976 and 1982. The Commission was created by the Constitution enacted in 1976, and extinguished in the first constitution revision (1982) which introduced the Portuguese Constitutional Court. In fact, it was designed and accordingly acted as the embryo of the future Constitutional Court.
To fully understand the influence of external sources of law in the constitutional interpretation processes of the Commission, in the first part I analyze the evolution of the Portuguese system of constitutional review between 1911 and 1976. I also provide a contextual and institutional analysis of the Commission to clarify the importance of its opinions on the system of constitutional review. The second part deals with the analysis of foreign and international law (taken as extra-systemic elements) in the opinions delivered by the Commission. Quantitative results prove the initial suspicion that those works were considerably generous towards external sources of law even when conditions were less favorable for such openness. Qualitative analysis shows that the willingness to resort to external sources of law is justified by several factors such as the influence of comparative and international law in the constitution-drafting process, the desire to break with a tainted past regarding the protection of individual rights and freedoms and the fact that the Commission worked as a mere advisory body, deprived of authoritative power and thus committed to drafting more persuasive and academic-styled opinions. Overall, we now have compelling empirical evidence that can substantiate previous arguments regarding an alleged openness of Portuguese constitutional-adjudicating bodies towards external sources of law.
The Legitimacy of European Constitutional Orders: A Comparative Enquiry, 2023
The purpose of this chapter is to test the specificity of the Portuguese pathway to constitution-... more The purpose of this chapter is to test the specificity of the Portuguese pathway to constitution-making against the background provided by Bruce Ackerman’s legitimacy pathway theory. Despite its original roots, Portugal represents a truncated case of revolutionary pathway. After the constituent period, and during the early years of democratization, revolutionary constitutionalism was tamed by “open constitutionalism”. Both European integration and the Portuguese Constitutional Court played key roles in that taming process. European integration is deeply intertwined with national constitutionalism. Accession to the EEC propelled the collapse of revolutionary constitutionalism and its mechanisms aimed at ensuring that Portugal would never succumb to another authoritarian oligarchization of the economy. Later, during the Euro crisis, it pressed the welfare state to fiscal stability demands. Ackerman’s intuition that the stabilization of a revolutionary pathway comes in the form of judicial supremacy is finally tested when the Constitutional Court stood as the gatekeeper of the revolutionary legacy of the welfare state, revived during the financial crisis.
Chrysogonos, K., Tsiftsoglou, A. (eds) Democracy after Covid. Springer, Cham., 2022
The present chapter analyses the normative response of Portugal to the coronavirus crisis. As in ... more The present chapter analyses the normative response of Portugal to the coronavirus crisis. As in other European Member States, the reaction to the pandemic was developed through a combination of enactment of the constitutional state of emergency with the statutory administrative emergency regime. Under both frameworks, there has been a strengthening of the executive at the expense of a parliamentary retreat. This chapter covers both responses to the pandemic and their shortcomings, mainly regarding the lack of democratic legitimation of the fight against the pandemic in face of a parliamentary circumvention and abdication. The research leading to this chapter has been funded by the German Research Foundation/Deutsche Forschungsgemeinschaft (DFG) in the framework of the Emmy-Noether-Project on "Transnational Solidarity Conflicts".
The European Court of Justice has been
one of the primary actors in the construction of the “Euro... more The European Court of Justice has been one of the primary actors in the construction of the “European project”. Much has been written regarding its contribution to the creation of a common market as well as the leadership it has assumed in the de facto constitutionalisation of the EU. The legitimacy of the ECJ and the methods through which it has taken upon itself such an incumbency in the absence of an unequivocal legislative mandate, has also been the object of considerable debate. The legal community (practitioners as well as some national, mainly constitutional, court), representatives of national political institutions and even some of the EU’s political representatives have occasionally leveled a great deal of criticism at the ECJ, its doctrine, and judicial philosophy. Accusations of illegitimate judicial activism, which sees the ECJ as a wild runner, face on the other hand a permissive defense of its judicial practice based on the consideration that the ECJ is in an optimal position to decisively contribute to the consolidation of the EU’s acquis by means of judicious hermeneutics. This latter view mainly includes descriptive approaches to the role that the ECJ has progressively taken within the European framework, and chiefly focuses on integration through law.
The present chapter analyses the normative response of Portugal to the coronavirus crisis. As in ... more The present chapter analyses the normative response of Portugal to the coronavirus crisis. As in other European Member States, the reaction to the pandemic was developed through a combination of enactment of the constitutional state of emergency, in the first and third phases, with the resort to the statutory administrative emergency regime. Under both frameworks, there has been a strengthening of the role of the executive at the expense of a parliamentary retreat. This chapter covers both responses to the pandemic and their shortcomings mainly concerning the lack of democratic legitimation of the fight against the pandemic in the face of a parliamentary circumvention and abdication.
Constitutions in Times of Financial Crisis, Jun 2019
The aim of this chapter is to analyze how a specific constitutional regime dealt with an impendin... more The aim of this chapter is to analyze how a specific constitutional regime dealt with an impending financial emergency. To assess the constitution’s constraining effects on the legislator’s margin of choice within an economic crisis, we will focus on the Portuguese constitutional case law that has reviewed austerity measures. For this purpose, we define “austerity legislation” as law that was adopted to cope with budgetary deficit reduction following the great recession and that affects individual rights and freedoms. We begin by briefly describing the domestic and international events that lead to the adoption of several packages of austerity and the formal financial rescue program. In section III, we go through the crisis constitutional case law. The Portuguese Constitutional Court (CC) has dealt with financial emergencies since its early days. After reviewing that initial jurisprudence, we analyze the case law on austerity which comprises not only legislation enacted before the bailout, but also the policies required by the formal program.
In Jorge M. Fernandes y Cristina Leston-Bandeira (eds.), The Iberian Legislatures in Comparative ... more In Jorge M. Fernandes y Cristina Leston-Bandeira (eds.), The Iberian Legislatures in Comparative Perspective.
Uploads
Papers by Teresa Violante
Moreover, the book discusses whether our current understanding of protection of freedom of communications guaranteed by the constitutions of EU member states and the EU Charter of Fundamental Rights, which was developed in the era of analogue communications, remains accurate in the era of digital technologies and mass surveillance (simultaneously applied by states and private corporations). In this context, the book reconstructs constitutional standards that currently apply in the EU towards data retention.
This book presents a unique comparative analysis of all judgments concerning Directive 2006/24/EC, which can be used in the legislative process on the EU forum aimed at introducing new principles of data retention and by constitutional courts in the context of comparative argumentation.
Partindo da análise de 557 decisões proferidas pelos tribunais superiores portugueses, descrevem-se as variações e diferentes dinâmicas da forma como a crise conseguiu entrar no discurso judicial e, eventualmente, influenciá-lo. Este estudo propõe um retrato detalhado e fundamentado do impacto da crise no discurso judicial e de como as decisões dos diversos tribunais se comportaram perante este fenómeno transformador da nossa vida coletiva.
To fully understand the influence of external sources of law in the constitutional interpretation processes of the Commission, in the first part I analyze the evolution of the Portuguese system of constitutional review between 1911 and 1976. I also provide a contextual and institutional analysis of the Commission to clarify the importance of its opinions on the system of constitutional review. The second part deals with the analysis of foreign and international law (taken as extra-systemic elements) in the opinions delivered by the Commission. Quantitative results prove the initial suspicion that those works were considerably generous towards external sources of law even when conditions were less favorable for such openness. Qualitative analysis shows that the willingness to resort to external sources of law is justified by several factors such as the influence of comparative and international law in the constitution-drafting process, the desire to break with a tainted past regarding the protection of individual rights and freedoms and the fact that the Commission worked as a mere advisory body, deprived of authoritative power and thus committed to drafting more persuasive and academic-styled opinions. Overall, we now have compelling empirical evidence that can substantiate previous arguments regarding an alleged openness of Portuguese constitutional-adjudicating bodies towards external sources of law.
European integration is deeply intertwined with national constitutionalism. Accession to the EEC propelled the collapse of revolutionary constitutionalism and its mechanisms aimed at ensuring that Portugal would never succumb to another authoritarian oligarchization of the economy. Later, during the Euro crisis, it pressed the welfare state to fiscal stability demands. Ackerman’s intuition that the stabilization of a revolutionary pathway comes in the form of judicial supremacy is finally tested when the Constitutional Court stood as the gatekeeper of the revolutionary legacy of the welfare state, revived during the financial crisis.
one of the primary actors in the construction of the “European
project”. Much has been written regarding its contribution to the
creation of a common market as well as the leadership it has
assumed in the de facto constitutionalisation of the EU.
The legitimacy of the ECJ and the methods through which it
has taken upon itself such an incumbency in the absence of an
unequivocal legislative mandate, has also been the object of considerable
debate. The legal community (practitioners as well as
some national, mainly constitutional, court), representatives of
national political institutions and even some of the EU’s political
representatives have occasionally leveled a great deal of criticism at the ECJ, its doctrine, and judicial philosophy. Accusations of illegitimate judicial activism, which sees the ECJ as a wild runner, face on the other hand a permissive defense of its judicial practice based on the consideration that the ECJ is in an optimal position to decisively contribute to the consolidation of the EU’s acquis by means of judicious hermeneutics. This latter view mainly includes descriptive approaches to the role that the ECJ has progressively taken within the European framework, and chiefly focuses on integration through law.