Fundamental Rights and Democratic Sovereignty in the EU: The Role of the Charter of Fundamental Rights of the EU (CFREU) in Regulating the European Social Market Economy

The EU, in its present configuration, has often been accused of a persistent and deep structural bias in favour of economic integration to the detriment of the democratic and social values of its Member States. In response to that accusation, can the Charter of Fundamental Rights of the EU (CFREU) come to the rescue and be mobilized, ultimately before a judicially-activist Court of Justice of the EU (CJEU), as a vehicle of social justice, in an effort to correct bias and to counter-balance the expansive economic liberties of the European single market? Exploring this question is a timely topic given a clearly discernable new constitutional turn in the jurisprudence of the CJEU’s Grand Chamber, especially now under the current presidency of Koen Lenaerts. The ‘Lenaerts-Court’, as this article will argue, has embarked on a new EU fundamental-rights jurisprudence, visibly aimed at strengthening the dignitarian-social dimension of EU integration and at adding flesh to the bones of the commitment to a European social market economy in Article 3(3) of the Treaty of European Union (TEU). Yet proposals in support of greater reliance on the substantive, but open-textured, provisions of the CFREU, in the pursuit of a ‘fair balance’ between the EU’s economic and dignitarian-social dimensions, immediately run into democratic-minded concerns about sovereignty passing from the Member States to the courts, and ultimately to the CJEU itself. The persistent worry is that democratic sovereignty over constitutionally sensitive—but morally and politically divisive—choices is being turned into a ‘sovereignty of law’—in ways that not only risk foreclosure of democratic debate over yet unsettled key societal matters but gives up democratic legitimation as a central element of modern constitutionalism (‘over-constitutionalisation’, Dieter Grimm). Thus, the CJEU is being simultaneously criticized for its alleged economic bias and for its efforts to overcome that bias. In an effort to address—and disarm—this democratic-minded concern, this article argues that judicial emphasis on the CFREU’s dignitarian-social values need not per se lead to the consequence of over-constitutionalisation. Rather, this article proposes to look at the Grand Chamber’s new fundamental-rights jurisprudence in the single-market context as creating a framework for plural and inclusive democratic deliberation on key societal choices and values. To that end, the article proposes a new reading of the Grand Chamber’s jurisprudence on the efficacy of fundamental rights in the economic sphere and, in particular, on the horizontal direct effect of CFREU rights

The Uncertain Structure of Process Review in the EU: Beyond the Debate on the CJEU’s Weiss Ruling and the German Federal Constitutional Court’s PSPP Ruling

The obligation to provide reasons (e.g. in Art. 296 TFEU) may appear rather a simple and straightforward, but in actual practice—as the mutually antagonistic Weiss rulings of the CJEU and the German Bundesverfassungsgericht (“BVG”) amply demonstrate—is fraught with constitutional complication. On the one side, there lies the concern with a deeply intrusive form of judicial review which substitutes judicially determined “good” reasons for those of the reviewee decisionmaker—legislatures, administrative agencies, or, as in Weiss, the European Central Bank (ECB). On the other side lies the concern with judicial abdication in the face of technical expertise, uncertainty and complexity, turning the reason-giving requirement into a mere façade thereby placing democratic accountability in the modern administrative state beyond law’s remit. Either way, normatively and conceptually, we seem left with a half-way house only. Drawing on the recent US administrative law discourse—the neo-Fullerian concept of an “internal morality of law” (Sunstein / Vermeule) and democratic experimentalism (Sabel / Kessler)—this paper explores the concept of process review as tertium datur. Process review responds to concerns over the rule of law and administrative discretion through indirect, procedural safeguards, by imposing requirements of reasoned justification, rather than through wholesale invalidation or aggressive substantive review

Learning in the European Union: Theoretical Lenses and Meta-Theory

notes: This paper is based on research carried out with the support of the European Research Council grant on Analysis of Learning in Regulatory Governance, ALREG http://centres.exeter.ac.uk/ceg/research/ALREG/index.php. The authors wish to express their gratitude to the other authors in this special edition and in particular its editor, Nikos Zaharaidis and X anonymous referees.publication-status: AcceptedThe European Union may well be a learning organization, yet there is still confusion about the nature of learning, its causal structure and the normative implications. In this article we select four perspectives that address complexity, governance, the agency-structure nexus, and how learning occurs or may be blocked by institutional features. They are transactional theory, purposeful opportunism, experimental governance, and the joint decision trap. We use the four cases to investigate how history and disciplinary traditions inform theory; the core causal arguments about learning; the normative implications of the analysis; the types of learning that are theoretically predicted; the meta-theoretical aspects and the lessons for better theories of the policy process and political scientists more generally

Systematizing Policy Learning: From Monolith to Dimensions

notes: The authors wish to express their gratitude to the Norwegian Political Science Association Annual Conference, 6 January 2010, University of Agder, Kristiansand, participants of the ‘Establishing Causality in Policy Learning’ panel at the American Political Science Association (APSA) annual meeting,2–5 September 2010,Washington DC, and the European Consortium of Political Research (ECPR) Joint Sessions, St Gallen, 12–17 April 2011, workshop 2. Dunlop and Radaelli gratefully acknowledge the support of the European Research Council, grant on Analysis of Learning in Regulatory Governance, ALREG, http://centres.exeter.ac.uk/ceg/research/ALREG/index.php.publication-status: AcceptedThe definitive version is available at www.blackwell-synergy.com and also from DOI: 10.1111/j.1467-9248.2012.00982.xThe field of policy learning is characterised by concept stretching and lack of systematic findings. To systematize them, we combine the classic Sartorian approach to classification with the more recent insights on explanatory typologies. At the outset, we classify per genus et differentiam – distinguishing between the genus and the different species within it. By drawing on the technique of explanatory typologies to introduce a basic model of policy learning, we identify four major genera in the literature. We then generate variation within each cell by using rigorous concepts drawn from adult education research. Specifically, we conceptualize learning as control over the contents and goals of knowledge. By looking at learning through the lenses of knowledge utilization, we show that the basic model can be expanded to reveal sixteen different species. These types are all conceptually possible, but are not all empirically established in the literature. Up until now the scope conditions and connections among types have not been clarified. Our reconstruction of the field sheds light on mechanisms and relations associated with alternatives operationalizations of learning and the role of actors in the process of knowledge construction and utilization. By providing a comprehensive typology, we mitigate concept stretching problems and aim to lay the foundations for the systematic comparison across and within cases of policy learning.European Research Council, grant no 230267 on Analysis of Learning in Regulatory Governance, ALREG

What Constitutions Can Do (but Courts Sometimes Don’t): Property, Speech, and the Influence of Constitutional Norms on Private Law

In this paper I want to address, against the background of the ECtHR’s recent attempt to resolve the clash between property rights and the right to freedom of expression in its decision in Appleby v. UK, two questions, both of which I take to be related to the overarching theme of “social democracy”. First, there is the problem of the influence of “higher law”-of human rights norms and constitutional norms-on private law norms; second, the question of the role of adjudication in “constitutionalizing” private law, in other words, the question of the “judicial cognizability” of constitutional norms within private law