In June 2005, the European Court of Justice held that national courts have a duty to interpret national law insofar as possible in conformity with framework deci-sions. In order to reach its conclusions, the Court extended first pillar doctrines to the ambit of the third pillar. Whilst one can well agree with both the reasoning and the result reached by the Court, this cross-pillarisation opens up a new range of constitutional questions, from the true relationship between third (and second) pillar instruments with national law, to issues of fundamental rights protection, democratic accountability, judicial protection and so on. If those questions echo familiar debates that have already taken place in the context of the first pillar, the very subject-matter of law-making in the third pillar renders the debate much more complex: our perception of the legitimacy of criminal law is inherently in-fluenced by a ‘national’ mode of thinking, whereby the State’s power to impose and execute criminal sanctions is seen both as being at the very core of sovereignty, and to be the area where democratic and judicial scrutiny is most needed. Both these assumptions must be reconsidered when we devise the possibility to take action in this area at Union level; and when such action is capable of producing independent legal effects in the national context. In this contribution, I will examine these issues. In particular, after having recalled the peculiarities of the third pillar institutional structure, I will focus on the effect of the Pupino ruling and in particular on its scope; on the extent to which other Community law doctrines (and in particular fundamental rights and Francovich damages) are applicable in relation to third pillar matters; and on the extent to which the reasoning in Pupino can be extended to second pillar legisla-tion.

Opening Pandora's Box: some reflections on the constitutional effects of the ruling in Pupino

Eleanor Spaventa
2007

Abstract

In June 2005, the European Court of Justice held that national courts have a duty to interpret national law insofar as possible in conformity with framework deci-sions. In order to reach its conclusions, the Court extended first pillar doctrines to the ambit of the third pillar. Whilst one can well agree with both the reasoning and the result reached by the Court, this cross-pillarisation opens up a new range of constitutional questions, from the true relationship between third (and second) pillar instruments with national law, to issues of fundamental rights protection, democratic accountability, judicial protection and so on. If those questions echo familiar debates that have already taken place in the context of the first pillar, the very subject-matter of law-making in the third pillar renders the debate much more complex: our perception of the legitimacy of criminal law is inherently in-fluenced by a ‘national’ mode of thinking, whereby the State’s power to impose and execute criminal sanctions is seen both as being at the very core of sovereignty, and to be the area where democratic and judicial scrutiny is most needed. Both these assumptions must be reconsidered when we devise the possibility to take action in this area at Union level; and when such action is capable of producing independent legal effects in the national context. In this contribution, I will examine these issues. In particular, after having recalled the peculiarities of the third pillar institutional structure, I will focus on the effect of the Pupino ruling and in particular on its scope; on the extent to which other Community law doctrines (and in particular fundamental rights and Francovich damages) are applicable in relation to third pillar matters; and on the extent to which the reasoning in Pupino can be extended to second pillar legisla-tion.
2007
2007
Spaventa, Eleanor
File in questo prodotto:
File Dimensione Formato  
Spaventa Pandora E Const Law Review.pdf

non disponibili

Tipologia: Pdf editoriale (Publisher's layout)
Licenza: NON PUBBLICO - Accesso privato/ristretto
Dimensione 92.74 kB
Formato Adobe PDF
92.74 kB Adobe PDF   Visualizza/Apri

I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.

Utilizza questo identificativo per citare o creare un link a questo documento: https://hdl.handle.net/11565/4025893
Citazioni
  • ???jsp.display-item.citation.pmc??? ND
  • Scopus 48
  • ???jsp.display-item.citation.isi??? 24
social impact