- Catalonia, Spain
Aida Torres Perez
Pompeu Fabra University, Law, Faculty Member
- Yale University, Yale Law School, Graduate Studentadd
- European Constitutional Law, Judicial Dialogue, Constitutional Pluralism, Fundamental Rights, Judicial independence, Constitutional Court, and 6 moreImmigration and Citizenship, Federalism, International Courts And Tribunals, EU Law, European Court of Human Rights, and European Union Citizenshipedit
- Aida Torres Pérez is Professor of Constitutional Law, Deputy Director of the Law Department, and Coordinator of the P... moreAida Torres Pérez is Professor of Constitutional Law, Deputy Director of the Law Department, and Coordinator of the PhD Program in Law at Pompeu Fabra University (Barcelona). She holds and LL.M (2002) and a JSD (2006) from the Yale Law School. She has been a visiting scholar at the European University Institute (Florence 2009), the University of Trento (2011), the University of Maastricht (2012), the Max Planck Institute for Comparative Public Law and International Law (Heidelberg 2013), and the The Danish National Research Foundation’s Centre of Excellence for International Courts, iCourts (Copenhagen 2014).edit
Research Interests:
This contribution will tackle a central question for the architecture of fundamental rights protection in the EU: can we envision a Charter that fully applies to the Member States, even beyond the limits of its scope of application? To... more
This contribution will tackle a central question for the architecture of fundamental rights protection in the EU: can we envision a Charter that fully applies to the Member States, even beyond the limits of its scope of application? To improve our understanding of the boundaries of the Charter and the potential for further expansion, I will examine the legal avenues through which the CJEU has extended the scope of application of EU fundamental rights in fields of state powers. While the latent pull of citizenship towards a more expansive application of the Charter has not been fully realized, the principle of effective judicial protection (Article 19(1) TEU) has recently shown potential for protection under EU law beyond the boundaries of the Charter. As will be argued, effective judicial protection may well become a doorway for full application of the Charter to the Member States. While such an outcome might currently seem politically unsound, I contend that a progressive case-by-case expansion of the applicability of the Charter to the Member States would be welcome from the standpoint of a robust notion of the rule of law in the EU.
Research Interests:
The General Council of the Judiciary is the main institution of judicial self-government in Spain. It was established to ensure the external independence of the judiciary, and in particular the independence of the judiciary vis-à-vis the... more
The General Council of the Judiciary is the main institution of judicial self-government in Spain. It was established to ensure the external independence of the judiciary, and in particular the independence of the judiciary vis-à-vis the executive branch of government. To what extent does the Judicial Council manage to fulfill its goal? The creation and evolution of the Judicial Council will first be presented to understand the principal reforms and reasons behind them. Next, the impact of the Judicial Council upon judicial independence, as well as accountability, transparency, and public confidence will be critically examined in order to assess its contribution to judicial legitimacy. In the end, it will be argued that the politicization of the Judicial Council has hindered it from securing judicial independence from partisan interests, and has contributed to undermining public confidence in the judiciary.
Research Interests:
National courts all over Europe have faced the challenge of how to protect rights in times of crisis. In the context of the Spanish housing crisis, judges adopted an activist role by mobilizing the Court of Justice of the EU in multiple... more
National courts all over Europe have faced the challenge of how to protect rights in times of crisis. In the context of the Spanish housing crisis, judges adopted an activist role by mobilizing the Court of Justice of the EU in multiple cases to challenge national legislation. This forced the Spanish government to adopt reforms to strengthen the position of mortgage debtors to fulfil the obligations under EU consumer law. This article discerns the factors that lead Spanish judges to cooperate with the CJEU. We show that, although political and legal opportunities and resources play a role for the judicial mobilization of EU law, the degree to which they matter vary when we consider: the role of 'judicial entrepre-neurs' who introduce EU law as a novel legal strategy, and the impact of this tactic on how judicial actors frame EU law, with important consequences for the politics within the judiciary.
Research Interests:
In the EU, fundamental rights are inextricably intertwined with the federal structure of such a uniquely divided power composite. This article examines the structure of fundamental rights' protection and the continuous bargaining over the... more
In the EU, fundamental rights are inextricably intertwined with the federal structure of such a uniquely divided power composite. This article examines the structure of fundamental rights' protection and the continuous bargaining over the allocation of judicial tasks between domestic and EU courts regarding the interpretation and enforcement of fundamental rights. First, I will analyze the latest Court of Justice case law to show how, since the Charter of Fundamental Rights entered into force, it has had a centralizing effect. Next, I will reflect upon how the " nationalist school of federalism " developed in the US literature might provide valuable insights for an argument grounding supranational authority while acknowledging the contribution of state constitutions and state courts to the supranational system of rights' protection. In the end, it will be argued that the growing self-empowerment of the Court of Justice in the field of fundamental rights needs to be tempered by an understanding of how state courts and rights could actually promote supranational ends in this context.
Research Interests:
Within the framework set by the Spanish Constitution and the Statutes of Autonomy, the social state is developed to a great extent through the autonomic state. The goal of this work is to understand the extent to which and through what... more
Within the framework set by the Spanish Constitution and the
Statutes of Autonomy, the social state is developed to a great extent through the autonomic state. The goal of this work is to understand the extent to which and through what mechanisms the constitutional case-law has endorsed the trend towards the centralization of power and normative homogenization in the context of the economic crisis, in such a way that the allocation of powers has been redesigned to undermine the principle of autonomy and the capacity of the Autonomous Communities to develop social policies. This analysis will focus on two case studies: the right to health and to housing. In both fields, on the one
hand, the central state has adopted legislation in response to the crisis, and on the other the Autonomous Communities have developed diverse policies in the exercise of their respective powers. As a consequence, constitutional conflicts have increased in a context in which several core elements are intertwined: political autonomy, equality and the social state in the framework of the economic crisis.
Statutes of Autonomy, the social state is developed to a great extent through the autonomic state. The goal of this work is to understand the extent to which and through what mechanisms the constitutional case-law has endorsed the trend towards the centralization of power and normative homogenization in the context of the economic crisis, in such a way that the allocation of powers has been redesigned to undermine the principle of autonomy and the capacity of the Autonomous Communities to develop social policies. This analysis will focus on two case studies: the right to health and to housing. In both fields, on the one
hand, the central state has adopted legislation in response to the crisis, and on the other the Autonomous Communities have developed diverse policies in the exercise of their respective powers. As a consequence, constitutional conflicts have increased in a context in which several core elements are intertwined: political autonomy, equality and the social state in the framework of the economic crisis.
Research Interests:
The goal of this article is to develop an analytical framework for the conceptualization of international judicial independence. First, it will be argued that judicial independence is not to be conceived as an end in itself but rather as... more
The goal of this article is to develop an analytical framework for the conceptualization of international judicial independence. First, it will be argued that judicial independence is not to be conceived as an end in itself but rather as a condition for the legitimacy of international courts (ICs). Also, independence is not a monolithic concept, but one of degree and the optimal degree of independence might vary according to the function and type of ICs. Second, I will provide a taxonomy of judicial independence in the international sphere and identify and systematize the relevant actors and variables. While studies about international judicial independence tend to focus on the mechanisms available to state governments, this work will take into account a broader set of actors and variables. Finally, a notion of interdependence will be advanced as a framework for institutional design that combines the need to enable adjudication free from undue influence or pressure with mechanisms to counterbalance judicial power. Forms of interdependence on the grounds of the principles of accountability and checks and balances might contribute to the overall legitimacy of ICs.
Research Interests:
In "In Whose Name?", Armin von Bogdandy and Ingo Venzke have singled out one of the most pressing challenges in current debates regarding international courts: the source of their legitimacy. Given the current structure and limits of... more
In "In Whose Name?", Armin von Bogdandy and Ingo Venzke have singled out one of the most pressing challenges in current debates regarding international courts: the source of their legitimacy. Given the current structure and limits of international law, instead of expecting international courts to speak in the name of peoples and citizens, this paper contends that international courts should speak in nobody’s name and shifts the focus to judicial independence as a necessary (but not sufficient) condition for the legitimacy of international adjudication. It is argued that judicial independence cannot be understood in terms of the courts’ insularity and appropriate constraining mechanisms ought to be put in place. At first, we reflect upon the differences between domestic and international courts in framing a notion of judicial independence adequate for the international sphere. Thereafter, we flesh out the notion of judicial interdependence and map the actors that might provide appropriate constraints following a checks and balance approach to the institutional design of international courts.
Research Interests:
Research Interests:
Research Interests:
Research Interests:
Research Interests:
The Draft agreement on the accession of the European Union (EU) to the European Convention on Human Rights (ECHR) envisages the possibility for the Court of Justice of the European Union (CJEU) to review EU law provisions in light of... more
The Draft agreement on the accession of the European Union (EU) to the European Convention on Human Rights (ECHR) envisages the possibility for the Court of Justice of the European Union (CJEU) to review EU law provisions in light of fundamental rights, before the European Court of Human Rights (ECtHR) carries out an external review (article 3, § 6). This paper
aims at answering the following question: Is the prior involvement of the CJEU justified? First, the grounds that might justify the creation of this mechanism will be critically
analyzed: the autonomy of EU law and the subsidiarity of the ECtHR. Next, a range of reasons to oppose this mechanism
will be examined. While a fruitful dialogue between Strasbourg and Luxembourg has developed over the years, any attempt to
institutionalize it could be exhausting and lead to undesired results. Eventually, it will be concluded that this is an overly complex, time-consuming proceeding that should be abandoned. In any event, since the CJEU’s prior involvement has now been agreed to as part of the package deal on accession, a constructive proposal will be offered in search for a balance between the interests of the EU and individual protection.
aims at answering the following question: Is the prior involvement of the CJEU justified? First, the grounds that might justify the creation of this mechanism will be critically
analyzed: the autonomy of EU law and the subsidiarity of the ECtHR. Next, a range of reasons to oppose this mechanism
will be examined. While a fruitful dialogue between Strasbourg and Luxembourg has developed over the years, any attempt to
institutionalize it could be exhausting and lead to undesired results. Eventually, it will be concluded that this is an overly complex, time-consuming proceeding that should be abandoned. In any event, since the CJEU’s prior involvement has now been agreed to as part of the package deal on accession, a constructive proposal will be offered in search for a balance between the interests of the EU and individual protection.
Research Interests:
Research Interests:
Research Interests:
Research Interests:
Research Interests:
Research Interests:
En España, la Ley 13/2005, que reconoció el matrimonio entre personas del mismo sexo, fue objeto de un recurso de inconstitucionalidad ante el Tribunal Constitucional, que todavía está pendiente de resolución. Nuestro objetivo es examinar... more
En España, la Ley 13/2005, que reconoció el matrimonio entre personas del mismo sexo, fue objeto de un recurso de inconstitucionalidad ante el Tribunal Constitucional, que todavía está pendiente de resolución. Nuestro objetivo es examinar qué conclusiones pueden extraerse para el debate sobre el matrimonio homosexual a partir del análisis del Convenio Europeo de Derechos Humanos y la Unión Europea. Aunque en estos ordenamientos no se establece como obligación el reconocimiento del matrimonio entre personas del mismo sexo, tampoco se prohíbe. Además, la reciente jurisprudencia del Tribunal Europeo de Derechos Humanos y del Tribunal de Justicia de la Unión Europea sobre el principio de igualdad en este ámbito puede tener un importante potencial para el futuro. Al final, se defiende que la Constitución no sólo no prohíbe el reconocimiento legislativo del matrimonio entre personas del mismo sexo, sino que el acceso de los homosexuales al matrimonio es un imperativo derivado del derecho a la no discriminación por razón de orientación sexual.
Research Interests:
Research Interests:
Research Interests:
Research Interests:
El objeto de este trabajo es realizar una valoración crítica de la STC 235/2007, de 7 de noviembre, que resuelve la cuestión de inconstitucionalidad planteada por la Audiencia Provincial de Barcelona sobre el artículo 607.2 CP. El... more
El objeto de este trabajo es realizar una valoración crítica de la STC 235/2007, de 7 de noviembre, que resuelve la cuestión de inconstitucionalidad planteada por la Audiencia Provincial de Barcelona sobre el artículo 607.2 CP. El Tribunal Constitucional (TC) declara inconstitucional la cláusula que prohíbe la negación del genocidio por vulneración de la libertad de expresión y reinterpreta la cláusula que prohíbe la justificación. En primer lugar, se exponen los antecedentes de este tipo penal y la crítica doctrinal sobre el mismo. A continuación, se analiza la argumentación del TC sobre el alcance de la libertad de expresión en relación con la tipificación de la difusión de ideas negadoras o justificadoras del genocidio, para después proceder a su valoración. El objetivo es poner de manifiesto las inconsistencias de orden interno, derivadas de la propia argumentación del TC, y externo, derivadas de su contraposición con la jurisprudencia del Tribunal Europeo de Derechos Humanos (TEDH) y el ordenamiento de la Unión Europea (UE). Se sugiere una propuesta de reconstrucción que contribuya a una mejor comprensión del pronunciamiento del TC y de sus implicaciones desde la doctrina de la «sobreinclusión»
Research Interests:
Research Interests:
Exploring the main developments and challenges for the right to family life in the context of European integration, this book examines the right to family life in the EU Charter of Fundamental Rights and the interplay between family life,... more
Exploring the main developments and challenges for the right to family life in the context of European integration, this book examines the right to family life in the EU Charter of Fundamental Rights and the interplay between family life, citizenship, and free movement; it analyzes the combined impact of the EU and the European Convention on Human Rights on the concept of the family protected by the law in light of recent case law. Considering the broadening understanding of what constitutes family, the challenges for the right to family life in the context of immigration, and the protection of families and social rights it provides a comprehensive overview of the current state of family life in the European Union.