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The Formation of a Constitutional Tradition in Continental Europe since World War II

The Formation of a Constitutional Tradition in Continental Europe since World War II Cesare PINELLI· 1 INTRODUCTION `Constitutional traditions common to the Member States' is a well-known formula firstly adopted by the European Court of Justice (ECJ) in response to the Italian and the German Constitutional Courts who had warned that, given the absence of a catalogue of fundamental rights in the EC Treaty, they would verify the compatibility of EC regulations with their respective constitutional provisions.The Luxembourg Court observed that it was `bound to draw inspiration from constitutional traditions common to the Member States', and that it could not therefore uphold measures which are incompatible with fundamental rights as recognized and protected by the Constitutions of those States.1 While we may wish to criticize the manner in which the formula was deployed by the ECJ, it is however prima facie difficult to deny that certain fundamental rights have been commonly recognized and granted in the EU countries over the second half of the last century.The 1950 European Convention of Human Rights was drafted upon the premise that a catalogue of fundamental rights could be shared among the High Contracting Parties. Even the exclusion of social rights from that catalogue was not due to insurmountable differences between the signatory States, but http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png European Public Law Kluwer Law International

The Formation of a Constitutional Tradition in Continental Europe since World War II

European Public Law , Volume 22 (2) – Apr 1, 2016

The Formation of a Constitutional Tradition in Continental Europe since World War II


Cesare PINELLI· 1 INTRODUCTION `Constitutional traditions common to the Member States' is a well-known formula firstly adopted by the European Court of Justice (ECJ) in response to the Italian and the German Constitutional Courts who had warned that, given the absence of a catalogue of fundamental rights in the EC Treaty, they would verify the compatibility of EC regulations with their respective constitutional provisions.The Luxembourg Court observed that it was `bound to draw inspiration from constitutional traditions common to the Member States', and that it could not therefore uphold measures which are incompatible with fundamental rights as recognized and protected by the Constitutions of those States.1 While we may wish to criticize the manner in which the formula was deployed by the ECJ, it is however prima facie difficult to deny that certain fundamental rights have been commonly recognized and granted in the EU countries over the second half of the last century.The 1950 European Convention of Human Rights was drafted upon the premise that a catalogue of fundamental rights could be shared among the High Contracting Parties. Even the exclusion of social rights from that catalogue was not due to insurmountable differences between the signatory States, but rather to the political climate of the Cold War. And, from a theoretical standpoint, it is somewhat ironic to note that it was not a post-Hegelian philosopher, but Thomas Marshall, a British sociologist, who observed that the concept of citizenship was progressively broadened as civil rights were recognized in the eighteenth century, political rights in the nineteenth and social rights, finally, in the twentieth.2 Although referred to the United Kingdom, · 1 2 Full Professor (Ordinario) of Constitutional Law, Department of Law, La Sapienza, Rome. ECJ, Nold KG / Commission, case 4/73, Judgment of 14 May 1974. T.H. Marshall, Citizenship and Social Class (1949), in T.H. Marshall,...
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Abstract

Cesare PINELLI· 1 INTRODUCTION `Constitutional traditions common to the Member States' is a well-known formula firstly adopted by the European Court of Justice (ECJ) in response to the Italian and the German Constitutional Courts who had warned that, given the absence of a catalogue of fundamental rights in the EC Treaty, they would verify the compatibility of EC regulations with their respective constitutional provisions.The Luxembourg Court observed that it was `bound to draw inspiration from constitutional traditions common to the Member States', and that it could not therefore uphold measures which are incompatible with fundamental rights as recognized and protected by the Constitutions of those States.1 While we may wish to criticize the manner in which the formula was deployed by the ECJ, it is however prima facie difficult to deny that certain fundamental rights have been commonly recognized and granted in the EU countries over the second half of the last century.The 1950 European Convention of Human Rights was drafted upon the premise that a catalogue of fundamental rights could be shared among the High Contracting Parties. Even the exclusion of social rights from that catalogue was not due to insurmountable differences between the signatory States, but

Journal

European Public LawKluwer Law International

Published: Apr 1, 2016

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