We, The Court

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The need to balance power between the Member States and the Union, and between public power and the market, has created powerful constitutional dilemmas for the European Union. This new book describes and analyzes the new Economic Constitution developed by the European Court of Justice. In doing so it discusses different constitutional models and forms of legitimacy and evaluates the limits to state and public intervention in the market, the division of competences between Member States and the EU, the principle of non-discrimination, and the notion of fundamental rights. This leads to a critical examination of the process of constitution-making in the EU, and the role of the Court of Justice in this process.
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Product Details

  • ISBN-13: 9781901362251
  • Publisher: Hart Publishing (UK)
  • Publication date: 2/1/1998
  • Edition description: New Edition
  • Pages: 208
  • Product dimensions: 6.14 (w) x 9.21 (h) x 0.50 (d)

Table of Contents

Table of Cases
Introduction 1
1 The Creation 7
The Constitutionalisation of Community Law: The Legitimacy of the European Court of Justice and Community Law 7
The European Court Among Reasons, Rules and Institutions 12
Framing the Constitution I: Legal Reasoning 16
Framing the Constitution II: Litigation 25
Framing the Constitution III: Legal Discourse and Legal Pluralism 30
2 The Classical Readings of Article 30 and the European Economic Constitution 35
The Classical Readings of Article 30: Discrimination versus Balancing 35
The Underlying Conflict: Economic Liberalism versus Anti-Protectionism 58
3 The Judicial Model of the European Economic Constitution and Article 30: Majoritarian Activism 61
The Expansion of Article 30 and the Limits to State Regulation of the Market 61
The European Court of Justice: Majoritarian Activism 68
After Keck 78
Market Maintenance and Market Building 88
The European Court's Market Building and Market Maintenance: Different Approaches to the European Economic Constitution 98
4 The Alternative Models of the European Economic Constitution 103
The Debate on Article 30 and European Regulation: Institutional Choices, Constitutional Models and the Legitimacy of European Law 103
The Centralised Model of the European Economic Constitution (Harmonisation) 110
The Competitive Model of the European Economic Constitution (Competition Among Rules) 126
The Decentralised Model of the European Economic Constitution (State Regulation under Non-discrimination) 143
5 Article 30 and the European Economic Constitution: Reforming the Market or the State? 150
Constitutional Models, Goals and Institutions 150
Economic Due Process versus Anti-protectionism 158
The Open Character of the European Economic Constitution 159
The European Economic Constitution and Anti-Protectionism 162
Beyond Anti-protectionism: the Political Aspects of European Integration and the Constitutionalisation of European Community Law 164
A Constitutional Law Approach to Article 30 166
Constitutional Models and the Legitimacy of European Law 174
Bibliography 176
Index 187
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