Time appears in the development of law in several capacities. One of its powers is to provide relief for courts gridlocked in contradictory claims of hierarchy. That is the topic of this editorial. A showcase is provided by the Melki saga, as it recently unfolded in a rich and rushed contention between the French courts and the Court of Justice of the European Union.

Lisbon decisions of the constitutional courts in Austria, the Czech Republic, France, Germany, Hungary, Latvia and Poland from a comparative perspective – Democracy, sovereignty and identity – Permeability of national and supranational law – Ratification of the Lisbon Treaty and its constitutional foundations – Procedural background and legal outcome of the Lisbon decisions – Differences of institutional self-conception – Parliamentary responsibility for integration – Prior parliamentary assent to the future application of ‘dynamic treaty provisions’ – Different conceptions of national and multi-levelled democracy – Popular vote – Constitutional limits to European integration – Limits indicating the necessity of an amendment and limits protecting the inalienable substantial core of a constitutional order – German Bundesverfassungsgericht only court in Europe spelling out an eternity clause in a detailed, catalogue style manner – Judicial restraint – Ultra vires and identity review – Article 4.2 TEU as an integration clause of EU law and not a derogation clause – Comparative dialectics

Modern age technology spurs legal development – Temporal coincidence of conflicting national and Union legislative processes triggers interdependence between EU and member states – French Loi Hadopi cuts Internet without recourse to a court – Conseil constitutionnel enshrines Internet as fundamental freedom – EU telecoms reform incorporates several French fundamental rights safeguards

Constituent power of the courts, in dialogue, accommodation or even collaboration, has become undeniable. It raises at least two points for scholarship to contemplate. First, what is the foundation of this power in terms of classical constitutional theory? Second, instead of or apart from the courts and their interactions: what is the relationship, in this constituent activity, between the courts and the political institutions, including the people?

1958: a priori review of parliamentary legislation to keep Parliament within its limited legislative competences – 2008: a posteriori review to protect citizens' rights and freedoms – Varieties of concrete review – Originality of the new French procedure – An indirect constitutional complaint: raised by a litigating party, transmitted by an ordinary court and decided by the Constitutional Council – Obstacle to transmission: declaration of conformity in the motives of an earlier decision by Constitutional Council – Conceptual, logical and legal reasons for a strict distinction between normative content and justificatory discourse in judgments – Setting on par of motives and operative part transforms French legal system into a specific form of common law and weakens the Rule of Law

German Constitutional Court decision of 30 June 2009 on the compatibility of the Lisbon Treaty with the German Constitution – ‘Identity’ key word of the Lissabon-Urteil – The national identity clause in the current Union Treaty – Nation: people and state; diachronic and synchronic identity – Constitutional patriotism – The national identity clause in the Lisbon Union Treaty – Volksidentität and state identity – Verfassungsidentität: diachronic identity – Identité constitutionnelle de la France: synchronic identity – confidence and diffidence in the Union

One of the most remarkable results of the elections for the European Parliament on 4–7 June 2009 is that the Swedish Piratpartiet won one seat, to which another will be added if the Treaty of Lisbon enters into force. One of the aims of this party is a reform of copyright law to restore the, in its eyes, lost balance between the potentially conflicting interests of creating and spreading culture. The party strives for, among other things, the decriminalisation of all non-commercial copying and use of copyrighted material on the internet.

Constitutionality of ethnic and racial statistics for research purposes – Principles of indivisibility and equality in Article 1 of the French Constitution – Visible minorities, discrimination and positive action measures – French republican conception of citizenship – Use of the word ‘race’ – Fear of misuse of ethnic and racial statistics – French alternative of territorial measures – Educational and fiscal advantages – Violation of the right to equal access to education – Ghettoisation – Problems in consideration of Directive 2000/43 (the Race Directive)

Conseil constitutionnel and Conseil d'Etat now both hold that Article 88-1 of the French Constitution contains the duty to implement Community law – The Conseil constitutionnel tests whether acts of parliament manifestly contravene unconditional and precisely phrased provisions of Community law – Duty to implement Community law limited by France's constitutional identity for the Conseil constitutionnel, by the absence of equivalent protection on the Community level for the Conseil d'Etat – Supremacy of the Constitution not affected

The Conseil constitutionnel has spoken again. In a decision of 27 July 2006, no. 2006-540 DC, the French constitutional court has further and significantly elaborated on earlier rulings on the status of Community directives in the French legal order. In the summer of 2004, it had ruled, in cases in which it was asked to declare unconstitutional an act of parliament implementing Community directives, that ‘the transposing of a Community directive results from a constitutional requirement with which non-compliance is only possible by reason of an express contrary provision of the Constitution’ (decisions of, inter alia, 10 June 2004, no. 2004-496 DC and 29 July 2004, no. 2004-498 DC). Very recently, the Conseil d'Etat, France's highest administrative court, took a similar stance in a case in which the constitutionality of a government decree implementing a directive was at stake (Decision of 8 February 2007, Société Arcelor Atlantique et Lorraine et autres).

Shortly before the European Council reached political agreement on the European Constitutional Treaty (18 June 2004), the Conseil constitutionnel [the French constitutional court], rendered a decision on the relationship between (secondary) community law and the French Constitution that will still be pivotal once the Constitutional Treaty has entered into force. Taken on 10 June 2004, the decision was only made public five days later. The Conseil feared that it would be presented as ‘a French abdication in the face of the European institutions’ and might influence the elections for the European Parliament of 13 June 2004.

The only real surprise of the recent decision of the French Conseil constitutionnel [constitutional Council] concerning the compatibility between the European and the French Constitutions was the timing of it. According to Article 54 of the French Constitution, a treaty may be submitted for constitutional review at any time before ratification. In this instance, Jacques Chirac acted with unusual promptness, submitting his request on the very day the Treaty was signed, 29 October 2004. The Conseil itself reacted with equal speed, issuing its decision exactly three weeks later on 19 November 2004. Behind both courses of action lies the shadow of political concern related to the Socialist Party referendum on the European Constitution.