The European Union act 2011: a failed statute

If there was one area in which the two coalition parties needed to produce a workable agreement as a matter of priority after the May 2010 election, it was the European Union. The European Union Act (EUA) 2011 builds on a political guarantee in the coalition agreement that there will be no transfers of sovereign powers until the next election (in 2015). That undertaking was intended to pacify the Europhobic wing of the Conservative party that had demanded but failed to get a national referendum on the hated Lisbon Treaty. As a result, the EUA contains all sorts of compromises: it delivers a referendum requirement, but not on the Lisbon Treaty; it affirms that the source of the validity of EU law is a domestic statute, but without mentioning the sovereignty of Parliament; it introduces constitutional safeguards, but without entrenching them against repeal by a future Parliament. Unfortunately, the EUA does not reflect the politics of compromise in a consensus democracy: it reflects dissent between the governing parties and within the Conservative party and, in most respects, is a compromised and failed statute

The Strengthening of the Commission Competences by the Constitutional Treaty and the Principle of Balance of Power

A lot has been written about the European Commission as the main administrative institution of the European Community: about its work, competences, its organisational problems and the administrative reform initiated by President Prodi after the resignation en masse of the Commission of President Jaques Santer. This paper will, therefore, not attempt to repeat what has been explained about an institution which has been the motor of European integration representing the Community interest against the national interests of the Member States of the European Union. The aim of this paper is to analyse the reform of the Commission in the context of the work on the Treaty to establish a Constitution for Europe (hereinafter the Constitutional Treaty) and the potential effect of the strengthening of the Commission in the European constitutional process with regard to the principle of the balance of powers among the Community institutions. The new powers of control of the European Parliament with respect to the Commission, along with the Commission's political accountability to the European Parliament at constitutional level, are decisive factors which lead to the conclusion that there is no immediate risk of an infringement of the principle of the balance of powers by the constitutional process.European Commission; Constitution for Europe; institutions

The interface between the area of freedom, security and justice and the common foreign and security policy of the European Union: legal constraints to political objectives

This paper argues that the objective of increased foreign policy coherence, as expressed in the Treaty of Lisbon and the Stockholm Programme of the European Union (EU), faces significant legal obstacles. In particular, the blurred boundaries between situations falling within the EU’s competence regarding the so-called Area of Freedom, Security and Justice (AFSJ), on the one hand, and its Common Foreign and Security Policy (CFSP) on the other hand, may give rise to inter-institutional turf battles. This is illustrated with the practice of adopting restrictive sanctions against individuals and non-State entities in the context of the EU’s fight against terrorism

The European Union: A Comparative Perspective

This chapter, to be included in the Oxford Principles of EU Law volume, compares the federalisms of Europe and the United States. It argues that Europe can be sensibly viewed from both federal and intergovernmental perspectives, and that particular aspects of the European Union’s structure fit each model. In particular, the EU is federal—that is, integrated to a comparable degree to the U.S.—with respect to its distribution of competences and the sovereignty attributed to EU law and institutions. But it is intergovernmental—that is, it preserves a center of gravity within the individual member states—with respect to the allocation of governmental capacity to enforce the law as well as to tax and spend, and also because Europeans continue to identify primarily with their member states. The chapter also addresses two sets of questions about the EU’s future. One concerns the possibility of “creeping centralization” that one observes in the United States, and which one might also detect in the EU’s slogan of “ever closer union.” I argue that any such tendency will be limited by the fact that the modern regulatory and welfare bureaucracies that have spurred centralization in the America instead developed at the member state level in Europe, prior to the advent of the EU. I also consider the impact of exogenous shocks, especially the euro crisis but also parallel crises over migration and terrorism. The response to these crises so far seems to have strengthened the EU’s intergovernmental tendencies. Comparing Europe and the United States can provide helpful insights about both systems-and federal systems in general. As is often true, the primary value of comparative law here is in the questions it raises, not the answers it may provide. Many aspects of federalism taken for granted in one system are considered nonobvious or even controversial in the other, and an appreciation of this fact can enrich federalism debates on both sides of the Atlantic

Reflections on the institutional balance, the Community Method and the interplay between jurisdictions after Lisbon. Research Papers in Law, 04/2012

[Introduction.] Over the last two years, not only inside but also outside the framework of the EU treaties, far reaching measures have been taken at the highest political level in order to address the financial and economic crisis in Europe and in particular the sovereign debt crisis in the Euro area. This has triggered debates forecasting the “renationalisation of European politics.” Herman Van Rompuy, the President of the European Council, countered the prediction that Europe is doomed because of such a renationalisation: “If national politics have a prominent place in our Union, why would this not strengthen it?” He took the view that not a renationalisation of European politics was at stake, but an Europeanization of national politics emphasising that post war Europe was never developed in contradiction with nation states.1 Indeed, the European project is based on a mobilisation of bundled, national forces which are of vital importance to a democratically structured and robust Union that is capable of acting in a globalised world. To that end, the Treaty of Lisbon created a legal basis. The new legal framework redefines the balance between the Union institutions and confirms the central role of the Community method in the EU legislative and judiciary process. This contribution critically discusses the development of the EU's institutional balance after the entry into force of the Treaty of Lisbon, with a particular emphasis on the use of the Community Method and the current interplay between national constitutional courts and the Court of Justice. This interplay has to date been characterised by suspicion and mistrust, rather than by a genuine dialogue between the pertinent judicial actors

The (Reform) Treaty of Lisbon: What’s in it? How Significant. Jean Monnet/Robert Schuman Paper Series Vol. 9 No. 1, January 2009

[From the Introduction]. The European Union is currently based on the treaty framework which emerged as the Treaty of Nice entered into force in 2003 (European Union, 2003). The Constitutional Treaty elaborated during the Convention on the Future of Europe, 2002-2003, and finally negotiated during the Intergovernmental Conference (IGC), 2003-2004, proposed a number of changes in that framework, but the treaty was rejected in referenda in France and the Netherlands in May and June 2005 (Laursen, 2008). After a reflection period it was decided to negotiate a so-called Reform Treaty. The German Presidency played an important role in securing agreement on a mandate for a new IGC in June 2007. During the Portuguese Presidency in the autumn of 2007 that IGC then produced a new treaty, the Lisbon Treaty (European Union 2007). In this paper we shall outline the most important provisions of the Lisbon Treaty. Will the Lisbon Treaty improve the efficiency, democratic legitimacy “as well as the coherence of its external action,” as the mandate from June 2007 claimed it should? (Council of the European Union, 2007)

The democratic legitimacy of international human rights conventions: Political constitutionalism and the European convention on human rights

International Human Rights Courts (IHRCts), such as the European Court of Human Rights (ECtHR), have come under increasing criticism as being incompatible with domestic judicial and legislative mechanisms for upholding rights. These domestic instruments are said to possess greater democratic legitimacy than international instruments do or could do. Within the UK this critique has led some prominent judges and politicians to propose withdrawing from the European Convention on Human Rights (ECHR). Legal cosmopolitans respond by denying the validity of this democratic critique. By contrast this article argues that such criticisms are defensible from a political constitutionalist perspective but that International Human Rights Conventions (IHRCs) can nevertheless be understood in ways that meet them. To do so, IHRC must be conceived as legislated for and controlled by an international association of democratic states, which authorizes IHRCts and holds them accountable, limiting them to 'weak review'. The resulting model of IHRC is that of a 'two level' political constitution. The ECHR is shown to largely accord with this model, which is argued to be both more plausible and desirable than a legal cosmopolitan model that sidelines democracy and advocates 'strong' review

Law and Institutions: two reasons for Sicilian backwardness?

Many reasons for the low level of local development in Sicily have been advanced through the years, often connected to historical and geographical explanations. More frequently the reasons of the backwardness (better low rate of development) is connected to high level of crime and of mafia phenomenon, or to structural grounds (first of all, Sicily is an island) and intra regional markets’ dimensions. Little space, instead, has been devoted to institutions and law and to the effectiveness of legislative self-government. In ours paper we will slight the constitutional profile trying, instead, to answer, with the typical approach of the economic analysis if is it possible that some reasons of the backwardness of Sicilian economic development are hidden just in this constitutional diversity of Sicily.

Brexit and Devolution in the United Kingdom

This work was carried out as part of the UK in a Changing Europe programme of the Economic and Social Research Council.Peer reviewedPublisher PD