Papers by Tomas Dumbrovsky
Social Science Research Network, May 28, 2019
SSRN Electronic Journal, 2012
The article analyzes how the Parliament’s leadership reacted to the Eastern Enlargements of the E... more The article analyzes how the Parliament’s leadership reacted to the Eastern Enlargements of the European Union between 2004 and 2011. We focus on trade-offs between efficiency and transparency in the light of the practice of trialogues. Do trialogues exclude or substantively limit the representation of new Member States in EU decision-making? Is the creation of such mechanisms in accordance with EU primary law? The analysis reveals an emerging core-periphery structure that threatens the legitimacy of Parliament and the EU political model as a whole.
SSRN Electronic Journal, 2018
The Robert Schuman Centre for Advanced Studies (RSCAS), created in 1992 and directed by Professor... more The Robert Schuman Centre for Advanced Studies (RSCAS), created in 1992 and directed by Professor Brigid Laffan, aims to develop inter-disciplinary and comparative research and to promote work on the major issues facing the process of integration and European society. The Centre is home to a large post-doctoral programme and hosts major research programmes and projects, and a range of working groups and ad hoc initiatives. The research agenda is organised around a set of core themes and is continuously evolving, reflecting the changing agenda of European integration and the expanding membership of the European Union.
Social Science Research Network, Jul 31, 2015
The article’s objective is to rethink the current understanding of the European constitutional sp... more The article’s objective is to rethink the current understanding of the European constitutional space in light of the Eastern enlargement that brings a different constitutional thoughts and language of the CEE constitutional courts (and scholars) into this space. The current scholarship understands the European constitutionalism as based on co-existence of MS constitutions and the EU ‘constitutional charter’. The peaceful co-existence is ensured through a dialogue between the constitutional interpreters (constitutional courts and the Court of Justice). This constitutional construct replaces the Kelsenian system, which has worked well in centralised sovereign state of Westphalian type, but is an obstacle for development of poly centred European Union. After the fall of the communist regimes, CEE countries were faced with re-constitutionalization. They looked into their democratic interwar past and revived old concepts, although sometimes enriched with western constitutional solutions ...
EMU Integration and Member States’ Constitutions, 2021
SSRN Electronic Journal, 2012
Nowadays, the strong political influence of highest courts is one of the features of modern gover... more Nowadays, the strong political influence of highest courts is one of the features of modern governance. While the judiciary has been largely accepted as a political actor in the American system of governance, this has been more difficult in Europe where the judiciary is still regarded as rather isolated from the other two branches of government. Discourse on the distribution of judicial competences between the European Union and the Member States shows the importance of constitutional courts, which can act as ‘providers of legitimacy’ to the European Union. For systemic reasons, the legitimizing potential of the highest courts in the ‘new’ Member States seems to be stronger than the one of the courts in the 'old' Member States. All in all, effectuating cooperative constitutionalism, the constitutional courts of the Member States, along with the Court of Justice, mutually empower and restrict each other, effecting the overall legitimacy of the system.
SSRN Electronic Journal, 2013
The article analyses the adaptation of the European judicial system on the Eastern enlargement. A... more The article analyses the adaptation of the European judicial system on the Eastern enlargement. At first, we examine changing litigation patterns in preliminary references and infringement actions, the two major inputs of Courts’ work. While the number of preliminary references increased proportionally to the increase of EU citizens, who are potential litigators, the number of infringement actions remain much behind the increase of potential wrongdoers (the Member States). Having mapped out the changes in Court’s input, we look at the internal processes at the Court after the enlargement. Twelve new judges allowed setting up new chambers. That, on the one hand, enhanced the capacity of the Court, on the other hand it has threatened the ability of the Court to provide doctrinal coherence and the ability to promote particular judicial politics. As a reaction, an inner core of judges emerged. New Member States judges were diffused in several chambers without being appointed to leadership positions. Soon, the inner circle of judges on the leadership positions was partly formalized through regular weekly meetings, which gives the core informational advantage and better planning ability. The president of the Court then has increasingly used his managerial powers in order to assure the inner-core control of the decision-making in important cases. Our findings, however, suggest that the core-periphery structure, though it temporarily discriminates new Member States judges, allows for periphery members to move to the core.
The article shows how a particular effet utile argumentation may help to overcome disagreements t... more The article shows how a particular effet utile argumentation may help to overcome disagreements that emerge among overlapping legal orders guarded by distinct “constitutional” courts – national constitutional courts, the Court of Justice of the European Union, and the European Court of Human Rights. The effectiveness of decisions of these courts depends to a great extent on domestic general courts, because it is the latter that supervise the enforcement while relying on the expertise of the former. Disagreements between several “constitutional” courts of the overlapping legal orders either confuse the domestic general courts or provide them with choice for which to make they lack the expertise (and authority). To limit these disagreements we need to search for such interpretation tools that would take into account reasonable interests of the other “constitutional” courts of the overlapping legal orders. Such concerted approach may be achieved through the concept of composite effet u...
This article deals with two intertwined processes: the formation of the Czech Constitutional Cour... more This article deals with two intertwined processes: the formation of the Czech Constitutional Court’s doctrine on the relationship between the Czech constitutional law and the European law (the European doctrine), on the one hand, and the reassessment of Court’s own role under new circumstances where it faces two interconnected but, to a certain extent, independent legal orders in its jurisdiction, on the other hand. We study two formational decisions of the Court. First, we present the Court’s reasoning and dissect essential components of its European doctrine. Second, we critically analyse these essential components and highlight weak points of the Court's doctrine. And finally, we identify the origins for the Court’s confusion that weakens its doctrine and suggest a correction to its doctrine, in the form of a more accommodating approach to a conflict between the two legal orders.
The so-called Euro-amendment of the Constitution has created a special regime for participation i... more The so-called Euro-amendment of the Constitution has created a special regime for participation in integrative international organizations and allowed for transfer of powers and resulting autonomous functioning of complex legal systems built up within such organizations in the Czech Republic. The Constitutional Court formulated the fundamental principles of constitutional adjudication prior to the accession of the Czech Republic to the European Union: primacy of teleological interpretation, material core of the Constitution and the ultra vires doctrine, radiation doctrine, principle of constitutionally conforming interpretation (indirect effect), and principle of high level of protection of fundamental rights and freedoms. Upon the accession, the Court adapted these principles to the new situation. The EU law functions autonomously in the Czech legal order and in case of conflict with constitutional provisions, a constitutional interpretation that affords the effect to EU law must t...
In this article, I confront sovereignty based attacks of constitutive units on a central governme... more In this article, I confront sovereignty based attacks of constitutive units on a central government of two entities lying on federalist foundations – the European Union and the United States. Inquiring into the development of the American Compact Theory on the one hand and into the European doctrine of the Czech Constitutional Court on the other, one may be astonished by the similarities in their reasoning. It has to be borne in mind that the Czech Constitutional Court represents a much broader group of ‘revolting’ national judiciaries. The aim of this article is to come to a normative solution to the sovereignty conundrum, which federalism might offer.
The so-called Euro-amendment of the Constitution has created a special regime for participation i... more The so-called Euro-amendment of the Constitution has created a special regime for participation in integrative international organizations and allowed for transfer of powers and resulting autonomous functioning of complex legal systems built up within such organizations in the Czech Republic. The Constitutional Court formulated the fundamental principles of constitutional adjudication prior to the accession of the Czech Republic to the European Union: primacy of teleological interpretation, material core of the Constitution and the ultra vires doctrine, radiation doctrine, principle of constitutionally conforming interpretation (indirect effect), and principle of high level of protection of fundamental rights and freedoms. Upon the accession, the Court adapted these principles to the new situation. The EU law functions autonomously in the Czech legal order and in case of conflict with constitutional provisions, a constitutional interpretation that affords the effect to EU law must t...
Charles University in Prague Faculty of Law Legal Studies Research Paper Series, 2020
Public interest, in the words of Felix Frankfurter, is a “vague, impalpable but all-controlling c... more Public interest, in the words of Felix Frankfurter, is a “vague, impalpable but all-controlling consideration”. It carries legitimacy and justifies coercion; and it has done so ever since: ‘Salus populi suprema lex esto’ rings as maxim from Cicero’s De Legibus to Locke’s Two Treatises and beyond. Its vagueness, combined with its extensive range, entails the concept’s success just as it is responsible for its failings. This paper is dedicated to the analysis of the challenges inherent to the quest of those aspirations that (claim to) unite the political community.
Common Market Law Review, Feb 1, 2014
This article assesses recent reforms of the appointment procedure for members of the Court of Jus... more This article assesses recent reforms of the appointment procedure for members of the Court of Justice and the General Court. We evaluate the effects of the establishment of the Article 255 TFEU Panel. Next to a discussion on the transparency of the Panel’s opinions, the criteria set and the role it plays in reappointments, we present case studies of the selection procedure in fourteen Member States, representing new and old, and small and large Member States. Our analysis shows that far from being a paper tiger, the Article 255 TFEU Panel has proven to have a significant impact: it has had a chilling effect on a number of national nominations but also indirectly influenced the selection processes in some Member States, thus limiting arbitrariness. However, opening up judicial appointments to scrutiny at both the EU and the national level has resulted in a subtle move into the direction of judicial self-government.
In this article, I confront sovereignty based attacks of constitutive units on a central governme... more In this article, I confront sovereignty based attacks of constitutive units on a central government of two entities lying on federalist foundations – the European Union and the United States. Inquiring into the development of the American Compact Theory on the one hand and into the European doctrine of the Czech Constitutional Court on the other, one may be astonished by the similarities in their reasoning. It has to be borne in mind that the Czech Constitutional Court represents a much broader group of ‘revolting’ national judiciaries. The aim of this article is to come to a normative solution to the sovereignty conundrum, which federalism might offer.
SSRN Electronic Journal, 2000
Any scheme for private antitrust enforcement is framed by two main questions: who will have stand... more Any scheme for private antitrust enforcement is framed by two main questions: who will have standing-direct or indirect purchasers-and will the passing-on defense be allowed. Imagine that a cartel of oil producers forces gas stations-direct purchasers-to buy petrol at a higher than competitive price. The gas stations then raise the price for the final customers-indirect purchasers. When the gas stations sue the cartel, the cartelist will claim that no damage has occurred to the gas stations, because the gas stations have passed on the overcharge to its final customers-the passing-on defense. In the United States, the ruling of the California Supreme Court in Clayworth v. Pfizer, alongside a report of the Antitrust Modernization Commission of 2007, spurred new debate on whether the 1970s Federal case law should be overruled. The situation in the European Union has been even more challenging. The Court of Justice of the EU surprised everybody with two landmark cases in the early 2000s, in which the court set up a basic scheme for private antitrust enforcement. However, neither the EU nor the Member States had the appropriate legislation in place. The article analyzes these latest developments, offering new solutions to both jurisdictions. I argue that the practice of passing on increases the total social welfare loss resulting from the existence of a cartel. To remedy the problem, I suggest a system that allows the passing-on defense, grants indirect purchasers standing, and multiplies the damages award. Such a system will lead to direct-purchaser suits being the rule, with indirect purchasers remaining subsidiary enforcers. It will also prompt the direct purchasers to commence the antitrust litigation in the proper time, thus limiting the additional social inefficiencies created by the cartel.
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Papers by Tomas Dumbrovsky