CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ NATIONAL SOVEREIGNTY IN THE EUROPEAN UNION integration, but he also takes account of the extensive case-law of the German Constitutional Court and, in turn, similar case-law of the Czech Constitutional Court regarding primacy of EU law and the standard of protection of fundamental human rights and freedoms at the national level. In this respect, we can agree with Hamuľák in that endowing the Charter of Fundamental Freedoms of the European Union with binding legal effect has a political and symbolic meaning. It should be emphasised that the legitimising effect of this step weighs considerably more than its practical legal impacts. Strictly speaking, the adoption of the Charter as a legally binding instrument did not bring any fundamental changes in application of EU law. On the other hand, in the constitutional perspective, the fact that the limits of the European Union’s competences towards citizens are clearly defined in a separate document of this kind, is a strong indicator of the nature of the EU. After presenting the contents of the Charter and the conditions under which it is relevant from the viewpoint of the Member States and their bodies, the publication proceeds to the Convention for the Protection of Human Rights and Basic Freedoms. Hamuľák opens his analysis by describing Opinion 2/13 of the Court of Justice which put an end to the process of EU’s accession to the above Convention. Quite understandably, in the text which follows the author does not analyse but merely recalls the reasons that led the Court of Justice of the EU to adopt the above opinion. On the other hand, he does analyse the consequences of this step, including alternative ways of ensuring that the standards of protection introduced by the Convention for the Protection of Human Rights and Fundamental Freedoms are observed in the European Union. The part dedicated to European sources of human rights protection concludes with an explanation of unwritten general principles of law. While I understand that the author wished not to burden the publication with too many detours from the main topic, this chapter could have been more extensive. From the perspective of the publication being reviewed, this particular field of law is significant in that EU law intermingles with national law at the constitutional level. The constitutional traditions of the Member States shape the European Union and subsequently, through EU law, go back and influence the Member States. The third chapter, entitled “ Shared Entitlement to Legitimate Violence in the EU and Its Theoretical Outcomes ”, deals with the European Union’s ability to independently perform the regulatory function. Hamuľák sees sovereignty as a given fact, without seeking its source or cause, to no detriment to the use of this book. 4 In legal terms – and the publication being reviewed is a legal publication – it makes more sense to examine sovereignty’s manifestations. On the other hand, Hamuľák does take interest in the Member States’ response to the arising sovereignty of the European Union. He notices that the Member States seldom used the option to intervene in key proceedings before the Court of Justice of the EU in order to 4 This, after all, is an approach typical of the Court of Justice of the EU itself and the same holds true of the Court’s approach to EU law. Scheu concludes in this respect that case-law of the Court of Justice of the EU relies on Kelsen’s legal system model rather than the empiricist approach. On the other hand, the Court of Justice of the EU provides no explanation on what it regards as the basic standard or unifying legal moment of this autonomous “constitutional” system. While the Court of Justice of the EU emphasised the term “constitutional document”, which can be considered to include the founding treaties, the question of validity of this “constitution” has not been sufficiently explained. It is seen as a fact that does not need to be discussed. SCHEU, H. C., Koncepce komunitárního práva v praxi Evropského soudního dvora a v právní teorii [in Czech] (The Concept of Community Law in the Jurisdiction of the European Court of Justice and in Legal Theory ) . Mezinárodní vztahy , Vol. 2002, No. 1, p. 17.

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