Joelle Grogan, University of Oxford
Constitutional Review in Europe: A Comparative Analysis, Maartje de Visser (European and National Constitutional Law Series, Hart Publishing, 2014)
Constitutional discourse lies at the heart of every state’s legal system. In Europe, it is the subject of even more intense debate with the rapid process of integration in the European Union, and the apparent incursion of EU regulatory norms into sacred national constitutional space. What is always assumed, but not examined, is the fact that this is a shared experience across the EU. Each Member State grapples with the realisation of its own constitutional identity, in its domestic courts and in the EU. In her new book “Constitutional Review in Europe: a Comparative Analysis”, Maartje de Visser aims to address two questions: who (should) uphold(s) the constitution, and how is constitutional review organised. Drawing on sources from eleven representative Member States of the EU (Belgium, the Czech Republic, Finland, France, Germany, Italy, Hungary, the Netherlands, Spain, Poland and the United Kingdom), this book is a veritable tour de force as it is a tour d’Europe.
There is an inherent hazard in comparative analysis, especially one which aims to describe the constitutional frameworks of such a diverse range of states, that the analysis will be piecemeal and the narrative of the book will simply be a list of states and their associated institutions. Evaluative considerations would either require lengthy argument beyond the scope of the book, or fall to the accusation that identified distinctions are superficial, or a whole host of justifying social, historic, and cultural norms were ignored. The author firmly acknowledges and responds to all of these concerns. Dividing the veritable behemoth of comparative constitutional review into manageable sections of the representative elements, she adroitly addresses the most important practical and theoretical aspects of constitutional review.
Covering the role of non-adjudicatory actors, the rise and purposes of constitutional adjudication, sources of constitutional review, access to the courts, the composition of the constitutional bench, and the interplay between constitutional courts and other actors; this work gives excellent scope to discover the many aspects of constitutional review. In addition to the eleven representative states, the Court of Justice of the EU also features, as de Visser has explicitly adopted the convention of European scholars of labelling the Court as ‘constitutional’. Leaving aside the normative and political challenges of that assessment, it is a wise choice: the judgments and actions of the Court have a wide ranging impact on constitutional judgments of national courts.
Within each chapter, the author presents some preliminary examples from states, followed by short sections of comparative analysis. The choice of the legal systems considered is not driven by the need to represent all states, but rather by the particular thematic question asked. So, for example, discussion of the avoidance of competence collisions between state bodies is only considered from French and Belgian perspectives; whereas the identification of the sources of standards for constitutional review merits the consideration of the Constitutional Courts of all eleven states. The carefully constructed structure of the book is a necessary feature, considering the complexity of its ambitious project. De Visser handles the material deftly, however, never losing the interest or engagement. Reading like a judicial thriller at times, de Visser engages with the most politically divisive cases to come before the Constitutional Courts to demarcate the expanding (or reducing) boundaries of judicial competence. Continue reading