Edited by Antonina Bakardjieva Engelbrekt and Joakim Nergelius
Chapter 7: European Constitutional Law: Its Notion, Scope and Finalities
Rainer Arnold I. THE NOTION OF EUROPEAN CONSTITUTIONAL LAW 1. ECL in Various Perspectives European constitutional law (ECL) is not a confirmed, undisputed term. Mostly it is used for the primary law of the European Community (EC), written or also unwritten, such as the judge-made general principles with the function of Fundamental Rights and of the Rule of Law guarantees, either for its totality or for its basic norms. But this term could also be used for the whole of the national constitutional laws in Europe insofar as they correspond to the same or to similar features resulting from convergent concepts. A third version is that of three constitutional levels in Europe – national constitutional law, European Community law in its basics and the European Convention on Human Rights (ECHR) – which are, despite their independence, interacting with considerable convergences. In the following chapter, the third variant is used for qualifying ECL in a narrow sense, a concept which takes into account the numerous processes of mutual influences of these three levels and therefore complies with legal reality more than the two other versions (Arnold, 1995). 2. The Term ‘Constitutional’ Constitutional law is traditionally used for the basic legal order of a state (Grimm, 1995). If we regard ECL, in part, as a matter of plurinational bodies, it is indispensable to justify why the term ‘constitutional’ can be shifted from the state to the pluristate levels. A functional approach is indispensable: if a document at the EC side fulfils the same functions...
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