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- Title
„SVOGA TELA GOSPODAR" - EUROPSKA SLOŽENA REPUBLIKA I KONTROLA ULTRA VIRES DJELOVANJA TIJELA EU-a.
- Authors
Vuković, Ana Horvat
- Abstract
The paper presents a range of options at the disposal of the EU Member States in their efforts to use the ultra vires doctrine in enforcing the principle of limited transfer of power to European bodies. Part 1 of the paper lays out a theory of the EU as a compound republic, founded upon the principles of the equality of its members and respect for their individual autonomies. The need is stressed to embrace the federalist theory in order to ensure mutual accommodation between the EU (as a derivative legal entity) and its Member States as masters of its structure and competences. Part 2 analyses the misplaced idea of the EU's immunity from the basic tenets of federalist theory, which require consensual decision-making and preclude the possibility of acquiring competences through arrogation. The author rejects the claim of the (supposedly spontaneously developed) independent normative authority of the Union as a legal order non-contingent on national legitimising instruments, questions the "constitutional pluralism" approach, and argues in favour of resolving the problem of "constitutional heterarchy" by accepting the fact that Member States retain ultimate normative and political authority. Part 3 summarises the case law of selected highest national courts of the Member States, primarily that of the German Federal Constitutional Court, as well as the procedural and substantive criteria of the ultra vires review that they employ. Finally, the paper concludes that the ultra vires review as practised by these national courts should be greeted as a shield against the illegitimate expansion of Union powers, i.e. as a tool to ensure both the values of the rule of law and constitutionalism, and the long-term stability of European integration.
- Subjects
CONSTITUTIONAL courts; FEDERAL courts; EUROPEAN integration; POLITICAL succession; LEGAL authorities; CONSTITUTIONALISM
- Publication
Zagreb Law Review, 2019, Vol 8, Issue 2, p77
- ISSN
1848-6118
- Publication type
Article