Central European Judges Under the European Influence: The Transformative Power of the EU Revisited (EU Law in the Member States Book 2)

"The onset of the 2004 EU enlargement witnessed a number of predictions being made about the approaches, capacity and ability of Central European judges who were soon to join the Union. Optimistic voices, foreshadowing the deep transformative power that Europe was bound to exercise with respect to the judicial mentality and practice in the new Member States, were intertwined with gloomy pictures of post-Communist limited formalism and mechanical jurisprudence that could not be reformed, which were likely to undermine the very foundations of mutual trust and recognition the judicial system of the Union is built upon. Ten years later, this volume revisits these predictions and critically assesses the evolution of Central European judicial mentality, institutions, and constitutionality under the influence of the EU membership. Comparatively evaluating the situation in a number of Central European Member States in their socio-legal contexts, notably Poland, the Czech Republic, Slovakia, Hungary, Slovenia, Bulgaria and Romania, the volume offers unique insights into the process of (non)Europeanisation of national legal systems and cultures."--Bloomsbury Publishing. Cover Half-title Title Copyright Contents Notes on Contributors List of Abbreviations Prologue: The Westernisation of the East and the Easternisation of the West I. Paying Tribute to Eastern Enlargement II. The Wessi Discovering the East III. A Wessi’s View 25 Years Later 1. Introduction: Revisiting the Transformative Power of Europe I. The Topic II. The Structure III. The Caveats IV. Acknowledgements Part I: Judicial Reasoning 2. Formalism in Judicial Reasoning: Is Central and Eastern Europe a Special Case? I. Introduction II. Two Symptomatic Narratives on Formalism III. Formalism as a Matter for Legal Scholarship IV. How to Grasp Formalism? A Plea for Moderate Functionalism V. Judicial Formalism in Heterogeneous and Dynamic Legal Cultures VI. Conclusion 3. EU Law and Central European Judges: Administrative Judiciaries in the Czech Republic, Hungary and Poland Ten Years after Accession I. Introduction II. Research Methodology III. Research Results IV. Interpretation of Results V. Conclusions 4. The Impact of EU Membership on Private Law Adjudication in Poland: A Case Study of the Polish Supreme Court’s Case Law on Unfair Terms in Consumer Contracts I. Introduction II. Institutional Background: Formalism in Polish Legal Culture III. Regulatory Background: The Unfair Terms Directive and its Implementation in Poland IV. Quantitative Analysis of Sąd Najwyższy’s CaseLaw on Unfair Terms V. Qualitative Analysis of SN Case Law on Unfair Terms VI. Conclusions 5. The Aversion to Judicial Discretion in Civil Procedure in Post-Communist Countries: Can the Influence of EU Law Change it? I. Introduction II. Can a Diagnosis for Slovenia be Generalised to All Post-Communist Countries? III. Reasons for Resentment with Regard to Judicial Discretion: A Look at the Past IV. Introduction of Sanctions Against Late Submissions of Facts and Evidence Labelledas ‘Excessive Formalisation of Procedure’ V. Resentment Regarding Judicial Discretionin Slovenia Today: Why won’t it Fade Away? VI. Judicial Discretion in European Civil Procedure Law VII. The Impact of the European Civil Procedure on the Legal Method and Mentality of National Judges VIII. Conclusions 6. The Remains of the Authoritarian Mentality within the Slovene Judiciary I. Introduction II. Legal (Dis-)Continuity III. The State of the Judiciary During Transition: The Absence of Lustration IV. The Remnants of the Old Judiciary Culture V. Conclusion 7. From a Discourse on ‘Communist Legacy’ Towards Capacity Building to Better Manage the Rule of Law I. Introduction: The ‘Communist Legacy’ of the Past? II. Is Central and Eastern Europe a Special Case in Judicial Reasoning? III. Different (Mis)Conceptions on Judicial Self-Government IV. To what Extent Should Empirical Methodology Examine (the Quality of) Judicial Reasoning? V. Conclusion: Towards Professionalised Quality Management in Judiciaries Part II: Institutions and Procedures 8. ‘Euro-products’ and Institutional Reform in Central and Eastern Europe: A Critical Study in Judicial Councils I. Introduction II. How do European Standards of Court Administration Emerge? III. What was in the Package? The Core Requirements of the Euro-model IV. What was not Included? Competing Models of Court Administration V. One Size Fits All? A Critique of Euro-models VI. Promoting the Euro-model in the New Europe VII. What was the Euro-model Supposed to Deliver? VIII. What did the Euro-model in Fact Deliver? IX. Conclusions 9. The Impossibility of Being a National and a European Judge at the Same Time: Doctrinal Rifts Between Hungarian and EU Administrative Law I. Introduction II. Theories of Legal Integration and National Court’s Dilemmas III. Judicial Review in Hungary and its Doctrinal Basis IV. Judicial Review and EU Requirements V. The Reception of EU Law Requirements by Hungarian Administrative Courts VI. Doctrinal Rifts Between Domestic and EU Administrative Law VII. Conclusions 10. Changes in the Level of the National Judicial Protection Under the EU Infl uence on the Example of the Polish Legal System I. Preliminary Remarks II. Europeanisation of Competences of Polish Courts III. Polish Legal Remedies and Effective Legal Protection IV. Conclusions 11. When David Teaches EU Law to Goliath: A Generational Upheaval in the Making I. Introduction II. A Fairy Tale III. Behind the Curtains IV. David versus Goliath V. Judicial Style Post-Accession: A Missed Opportunity VI. Conclusions 12. Who are the Actors Mobilising Discourse among Courts? I. Escaping into Formalism? II. Measuring Arguments in ‘Motivations’ of Judgements III. Explicit References to European Law are Rare Events Even Among West European Judges IV. Requesting a Preliminary Ruling from the Court of Justice V. Central European Actors Challenging Judges for Requests to the ECJ VI. Discourse Between Civil Society, the National Courts and the ECJ 13. Transformation in the Eye of the Beholder I. The West– East or the Old–New Divide II. The Hungarian Back-sliding III. The Missing Case of Slovenia IV. Beyond Hungary and Slovenia: Undoing the Illiberal Past V. In the Eye of the Beholder and Looking Ahead Part III: Constitutional Courts 14. Invalidity of EU Law before the Polish Constitutional Tribunal: Court of Old Closure(s) or New Opening(s)? I. Polish Trybuna ł Konstytucyjny and European law. What Kind of Court? II. Invalidity of EU Law before the TK III. Polish Trybunał Konstytucyjny: Still Court of Old Closures or of Already New Openings? 15. Constitutional Sovereignty in Post-Sovereign Jurisprudence of the Czech Constitutional Court: From the Lisbon Judgments to the Landtová Ultra Vires Controversy I. Introduction II. A Sort of European Prelude: On Sovereign Nations, Constitutional Nationalisms and the Nation States of the EU III. Sovereignty as Part of European Political and Constitutional Semantics IV. A Brief History of the Ústavn ísoud’s Doctrine of Constitutional Sovereignty and the Delegation of Powers on the European Union V. The Lisbon Treaty Ratification and its Political Context in the Czech Republic VI. From Adopted Doctrines to the Complex Jurisprudence of Constitutional Sovereignty:The Ústavní soud’s Reflections on Globalisationand Sovereignty VII. Sovereignty as a Post-Sovereign Technique VIII. Beyond the Dualistic View of the EU and its Member State: Comparative Remarks on the ÚS and BVerfGs’ Lisbon Judgments IX. ... and now for Something Completely Different: The ÚS Reasserting its Kompetenzder Kompetenz X. Conclusion 16. ‘Keeping the Faith’: The Trials and Tribulations of the Hungarian Constitutional Court in Following its European Vocation I. Introduction II. Constitutional Change and its Impact on the Europe Clause III. Constitutional Court Acts 1989 and 2011 IV. Principle of Primacy of EU Law V. Limitations to the Primacy of EU Law VI. Conclusion 17. Central and Eastern European Constitutional Courts Facing New Challenges: Ten Years of Experience I. The Context II. The Ambiguities III. Field of Confrontation IV. Is the Very Dialogue Possible? V. Constitutional Identity VI. European Federalism and Constitutional Pluralism—conditions Necessary for a New Dimension of the Dialogue 18. Conclusions: Of Form and Substance in Central European Judicial Transitions I. Introduction II. Preliminary Points III. Judicial Reasoning: Formalism, Textualism and other Insults IV. Institutions and Structures: How Much Europe is Europe Enough? V. Constitutional Courts and EU Law: Uneasy Bedfellows? VI. Conclusion: The Success and the End of a Transition Select Bibliography Index La 4e de couverture indique : "The onset of the 2004 EU enlargement witnessed a number of predictions being made about the approaches, capacity and ability of Central European judges who were soon to join the Union. Optimistic voices, foreshadowing the deep transformative power that Europe was bound to exercise with respect to the judicial mentality and practice in the new Member States, were intertwined with gloomy pictures of post-Communist limited formalism and mechanical jurisprudence that could not be reformed, which were likely to undermine the very foundations of mutual trust and recognition the judicial system of the Union is built upon. Ten years later, this volume revisits these predictions and critically assesses the evolution of Central European judicial mentality, institutions, and constitutionality under the influence of the EU membership. Comparatively evaluating the situation in a number of Central European Member States in their socio-legal contexts, notably Poland, the Czech Republic, Slovakia, Hungary, Slovenia, Bulgaria and Romania, the volume offers unique insights into the process of (non)Europeanisation of national legal systems and cultures." The onset of the 2004 EU enlargement witnessed a number of predictions being made about the approaches, capacity and ability of Central European judges who were soon to join the Union. Optimistic voices, foreshadowing the deep transformative power that Europe was bound to exercise with respect to the judicial mentality and practice in the new Member States, were intertwined with gloomy pictures of post-Communist limited formalism and mechanical jurisprudence that could not be reformed, which were likely to undermine the very foundations of mutual trust and recognition the judicial system of the Union is built upon. Ten years later, this volume revisits these predictions and critically assesses the evolution of Central European judicial mentality, institutions, and constitutionality under the influence of the EU membership. Comparatively evaluating the situation in a number of Central European Member States in their socio-legal contexts, notably Poland, the Czech Republic, Slovakia, Hungary, Slovenia, Bulgaria and Romania, the volume offers unique insights into the process of (non)Europeanisation of national legal systems and cultures.-- Provided by Publisher The onset of the 2004 EU enlargement witnessed a number of predictions being made about the approaches, capacity and ability of Central European judges who were soon to join the Union. Optimistic voices, foreshadowing the deep transformative power that Europe was bound to exercise with respect to the judicial mentality and practice in the new Member States, were intertwined with gloomy pictures of post-Communist limited formalism and mechanical jurisprudence that could not be reformed, which were likely to undermine the very foundations of mutual trust and recognition the judicial system of the Union is built upon. Ten years later, this volume revisits these predictions and critically assesses the evolution of Central European judicial mentality, institutions and constitutionality under the influence of the EU membership. Comparatively evaluating the situation in a number of Central European Member States in their socio-legal contexts, notably Poland, the Czech Republic, Slovakia, Hungary, Slovenia, Bulgaria and Romania, the volume offers unique insights into the process of (non) Europeanisation of national legal systems and cultures.