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Home » Archive » Protection Of Eu Law In Case Of Legislative Omissions: How Constitutional Courts React

Sarah Verstraelen
Protection Of Eu Law In Case Of Legislative Omissions: How Constitutional Courts React
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When a Constitutional Court declares a gap in legislation to be unconstitutional because certain categories are not included, immediately the question rises how redress can be offered to the excluded party. A mere annulment of the contested norm will often be insufficient. Therefore, Constitutional Courts developed different types of adjudication in order to eliminate a legislative lacuna, sometimes by even instructing ordinary judges to expand the contested norm’s field of application. A similar reasoning applies to legislative omissions that violate EU law. The principles of supremacy and direct effect that oblige national judges to set aside national legislation when it is contrary to EU law and the possibility of harmonious interpretation will often not suffice; a simple annulment of the contested norm does not lead to an expansion of its field of application. The principle of loyal cooperation (Article 4 (3) TEU) together with the principles of equivalence and effectiveness compel Constitutional Courts to employ the same types of adjudication they use within a national context to offer redress when EU law is violated. This research will show that the Italian and Belgian Constitutional Courts follow the practice they developed within a mere national setting, thereby often instructing ordinary courts to expand the contested norm’s field of application in accordance with EU law. By contrast, the German and French Constitutional Courts do not even review national legislation to its conformity with EU law, let alone they use the developed techniques to fill a legislative gap that violates EU law. In this way, the latter deny to offer the necessary redress to the excluded party.

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