Teaching the Political Context of EC Law

Books reviewed in this article: D. Dinan, Ever Closer Union? An Introduction to the European Community J. Greenwood, Representing Interests in the European Union F. Hayes-Renshaw and H. Wallace, The Council of Ministers S. Hix and C. Lord, Political Parties in the European Union N. Nugent, The Government and Politics of the European Union R. Dehousse, The European Court of Justice: The Politics of Judicial Integration P. Craig and G. de Burca, EC Law, Text, Cases, & Materials D. Chalmers and E. Szyszczak, European Union Law. Volume One. Law and EU Government     

On the Technology of Collective Identity: Normative Reconstructions of the Concept of EU Citizenship

The unsatisfactory present of European Union Citizenship and the unclear integration telos have given rise to many questions regarding the future of the European Citizen and the possibility of a European demos. On what sort of foundation can such a demos be constructed, and what will its relationship with national demoi be? This article presents the theoretical approaches on the future of EU citizenship, varying from civic‐centered thesis to social models, with a view to exploring the potential and dynamics of a different European identity based, not on supposedly common history and culture, but on newly‐founded shared political values. The aim is to go beyond the classic federation–confederation dilemma and look deeper into the process of creating an actual European demos.     

European criminal law and European identity

This contribution aims to explain how European Criminal Law can be understood as constitutive of European identity. Instead of starting from European identity as a given, it provides a philosophical analysis of the construction of self-identity in relation to criminal law and legal tradition. The argument will be that the self-identity of those that share jurisdiction depends on and nourishes the legal tradition they adhere to and develop, while criminal jurisdiction is of crucial importance in this process of mutual constitution. This analysis will be complemented with a discussion of the integration of the first and the third pillar as aimed for by the Constitutional Treaty (TE), which would bring criminal law under majority rule and European democratic control. Attention will be paid to two ground breaking judgements of the European Court of Justice (ECJ) that seem to boil down to the fact that the Court actually manages to achieve some of the objectives of the CT even if this is not in force. This gives rise to a discussion of how the CT (and related judgements of the ECJ) may transform European criminal law in the Union to EU criminal law of the Union, thus producing an identity of the Union next to the identities prevalent in the Union. The contribution concludes with some normative questions about the kind of European identity we should aim to establish, given the fact that such identity will arise with further integration of criminal law into the first pillar.

Should Europe disturb historians? On the importance of methodology and interdisciplinarity

Does the emergence of the European Union (EU) disrupt the frames of reference of the contemporary history of Europe to such an extent that historians distrust it? It would seem that methodological Euroscepticism exists. European integration arouses scepticism among some in the community of historians of contemporary Europe, since the conceptual underpinnings of that history cannot in themselves account for European integration. This billet expresses, more than a word of caution, a call for enhanced dialogue on the EU as an object of study among the different strands of historical studies and different disciplines. On the one hand, some of the analyses provided by historical studies on contemporary Europe constitute a fertile source for the study and understanding of European integration, notably in the field of history. Using them can stimulate the development in the European studies field of new concepts, new representations and new hypotheses for grasping the EU as a reality and a comparatively new object of academic interest. On the other hand, the critical study of the EU conducted in the specific field of the history of the EU questions and sheds a new light on the analytical categories of contemporary European history. In this regard, the fruitful interaction between history, political geography, law and political science can enrich contemporary European history. Interdisciplinary studies on European integration notably enable us to decentre notions of sovereignty, territory and democracy, which have classically taken the nation state as their reference in broad explanatory narratives of contemporary European history. Research mutualisation would offer all the potential interpretative and analytical benefits of the conceptual and methodological rethink of our various disciplines and of European integration as an object of study.     

The Management of New Forms of Governance by Former Accession Countries of the European Union: Institutional Twinning in Estonia and Hungary

Abstract: At the Copenhagen summit of 1993, the European Union introduced three criteria for accession to the European Union—political, economic, and adoption of the acquis—combined in 1995 with the necessity, for the candidate states, to have the institutional capacity to implement the acquis.?Until the reform of the PHARE programme in 1997, the European Union did not have any cooperation programme for institution‐building. Conceived as an innovative instrument in European external cooperation, institutional twinnings are inspired, in their design and their implementation, by new methods of governance emerging from the internal policies of the European Union (new public management, open method of coordination). How did the candidate countries interpret and implement institutional twinnings? Can one simply speak of institutional transfers or are the results of cooperation between Western and Eastern élites and experts of a more complex nature? This article attempts to draw some lessons from the experience of twinning on the basis of sectoral case studies in two countries, Estonia and Hungary, which took part to the EU enlargement of May 2004.     

The Paradox of Constituent Power.The Ambiguous Self‐Constitution of the European Union

Abstract. The French and Dutch referenda on the adoption of a European Constitutional Treaty highlight a remarkable ambiguity in the self‐constitution of a polity, which can be viewed as both constitution by and of a collective self. This ambiguity is a fundamental feature of polities in general, and the European Union in particular. Rather than suppressing this ambiguity, democracy—and a fortiori a European democracy worth its name—institutionalises it as the guiding principle of political action. As will transpire, the conceptual and normative problems raised by political self‐constitution are linked to self‐attribution, i.e., the conditions under which a collective ascribes legislation to itself.     

Overview of Criminology in Europe

The editors of the European Journal on Criminal Policy and Research wanted to include an article with an overview of European criminology in this special issue on European criminology. But in order to discover whether there is such a thing as European criminology, one should first look at the state of affairs of criminology in the individual countries of Europe. This article is an attempt to do so. It is based on a short questionnaire posted to individuals in 34 European countries, a report by Walgrave and Goris, entitled An Overview of University Institutions of Criminology (1996), an Internet search on selected keywords, and some background material available in the WODC library. It gives an overview of criminological research and research institutes; European co-operation, comparative research and European networks; criminological training; national societies of criminology and criminological periodicals.     

A Geometric Morphometric Approach to Sex Determination of the Human Adult Os Coxa

Abstract: Sex determination of the human skeleton is best assessed from the os coxa. The present study explored the possibility of using three‐dimensional landmark coordinate data collected from various landmarks located over the entire bone to determine whether there were significant sex differences local to the landmarks. Thirty‐six landmarks were digitized on 200 African American and European American male and female adult human os coxae. MANCOVA results show that sex and size have a significant effect on shape for both European Americans (Sex, F = 17.50, d.f. = 36, 63, p > F = 0.0001; Size, F = 2.56, d.f. = 36, 63, p > F = 0.0022) and African Americans (Sex, F = 21.18, d.f. = 36, 63, p > F = 0.0001; Size, F = 2.59, d.f. = 36, 63, p > F = 0.0005). The discriminant analysis shows that sexing accuracy for European Americans is 98% for both males and females, 98% for African American females, and 100% for African American males.     

Adverse Possession and Article 1 of the European Convention

In the post-human rights era the question has arisen on several occasions as to whether the automatic and arbitrary termination of the registered owner’s title through the common law and statutory principles governing adverse possession of land is contrary to the Article 1, Protocol 1 of the European Convention. The matter fell to be decided in J.A. Pye (Oxford) Ltd v United Kingdom ([2005] 3 EGLR 1) where the European Court of Human Rights held that the automatic termination of a registered owners title after 12 years possession was indeed a violation of Article 1, Protocol 1. More recently, the decision of the European Court has been overturned by the Grand Chamber of the European Court of Human Rights where the Grand Chamber has held that a squatters’ right to another persons land are not disproportionate (J. A. Pye (Oxford) Ltd and Another v United Kingdom, The Times, October 1st 2007). This short article examines the decision of the Grand Chamber.

REVIEW

Joxerrumon Bengoetxeu, The Legal Reasoning of the European Court of Justice Andrew Grubb (ed), Choices and Decisions in Health Care     

REVIEWS

Book reviewed in this article: Stephen Guest, Ronald Dworkin Jürgen Schwarze, European Administrative Law     

‘Delegated’ Legislation in the (new) European Union: A Constitutional Analysis

This article brings classic constitutionalism to an analysis of delegated legislation in the European Union. To facilitate such a constitutional analysis, it starts with a comparative excursion introducing the judicial and political safeguards on executive legislation in American constitutionalism. In the European legal order, similar constitutional safeguards emerged in the last fifty years. First, the Court of Justice developed judicial safeguards in the form of a European non‐delegation doctrine. Second, the European legislator has also insisted on political safeguards within delegated legislation. Under the Rome Treaty, ‘comitology’ was the defining characteristic of executive legislation. The Lisbon Treaty represents a revolutionary restructuring of the regulatory process. The (old) Community regime for delegated legislation is split into two halves. Article 290 of the Treaty on the Functioning of the European Union (TFEU) henceforth governs delegations of legislative power, while Article 291 TFEU establishes the constitutional regime for delegations of executive power.     

The Value of ‘Integration’ in European Law—The Implications of the Förster Case on Legal Assessment of Integration Conditions for Third‐Country Nationals

The European Court of Justice's Förster judgment can lead to a reduction of legal uncertainty caused by integration requirements for third‐country nationals. The judgment has created a strong ‘assumption of integration’ after five years of legal residence because it equalised integration requirements for European students to access the welfare system of host Member States with a requirement of five years legal residence. Almost all pieces of European legal migration law also contain five‐year residence requirements after which the status of third‐country nationals improves. However, these improvements are mostly subjected to the fulfilment of additional integration requirements. To keep coherence with European law, courts will not be able to disregard the Förster‘assumption of integration’ when assessing the legality of integration conditions for third‐country nationals put in place in addition to residence requirements.     

Post‐Secularism and the European Court of Human Rights: Or How God Never Really Went Away

This article analyses the critical yet elusive notions of state neutrality, secularism and religious coercion under the European Convention in light of the European Court of Human Rights recent decision in Lautsi v Italy. We contend that the real concern in the Italian crucifix case was not the infringement of the school pupils’ religious freedom nor the proselytising or coercive effect of the ‘passive’ religious symbols. Rather, opponents of the longstanding symbols were animated by desire for strict religious equality, a notion that is, correctly in our view, not guaranteed under the Convention. Lautsi has significantly cleared the conceptual undergrowth surrounding state neutrality and the varieties of secularism, reined in the elastic notion of religious coercion and eschewed attempts to squeeze the constitutional diversity of European religion‐state frameworks into a strict American‐style separationist mould. The Convention jurisprudence on freedom of religion has finally come of age.     

Out of Many,One? Strasbourg's Ibrahim Decision on Article 6

This case comment considers the European Court of Human Rights decision of Ibrahim v United Kingdom on 13 September 2016. Relying on Salduz v Turkey, the applicants claimed, largely unsuccessfully, that denial of access to a lawyer during police questioning, and subsequent admission into evidence of statements made in the course of that questioning, violated fair trial rights protected by Article 6 of the European Convention on Human Rights. The comment suggests that the decision's unusually emphatic statements about Article 6's ‘internal structure’ have consequences for assessing violations in future applications. Further, the decision creates greater room for public interest balancing in Article 6 cases. The decision may thus undermine the Article 6 guarantees.     

The evolution of European legal integration

This article contributes to the development of theories on European integration by testing and exploring statistical models on the long-term development of legislative activity of the European Commission. Drawing on legal information gained from the European Union’s PreLex database and analyzing it with the help of statistical analyses, we map out growth patterns of EU law between 1976 and 2003. We construct time-series models and models based on non-linear regression. While the performance of models based on the traditional theoretical approaches, intergovernmentalism and neo-functionalism, is rather poor, the analysis suggests that nonlinear dynamic models might be an interesting avenue for future conceptualizations of the EU integration process. This article is based on a paper presented at the ECPR Standing Group on the European Union Second Pan-European Conference on EU Politics, “Implications of a Wider Europe: Politics, Institutions and Diversity”, 24–26 June 2004, Bologna, Italy. We would like to thank the seminar participants for useful comments.     

All Bark and No Bite: Notes on the Federal Constitutional Court's 'Banana Decision'

The Federal Constitutional Court's banana decision of 7 June 2000 continues the complex theme of national fundamental‐rights control over Community law. Whereas in the ‘Solange II’ decision (BVerfGE 73, 339) the Federal Constitutional Court had lowered its standard of review to the general guarantee of the constitutionally mandatorily required minimum, the Maastricht judgment (BVerfGE 89, 155) had raised doubts as to the continued validity of this case law. In the banana decision, which was based on the submission of the EC banana market regulation by the Frankfurt‐am‐Main administrative court for constitutional review, the Federal Constitutional Court has now confirmed the ‘Solange II’decision and restrictively specified the admissibility conditions for constitutional review of Community law as follows. Constitutional complaints and judicial applications for review of European legislation alleging fundamental‐rights infringements are inadmissible unless they show that the development of European law including Court of Justice case law has since the ‘Solange II’ decision generally fallen below the mandatorily required fundamental‐rights standard of the Basic Law in a given field. This would require a comprehensive comparison of European and national fundamental‐rights protection. This paper criticises this formula as being logically problematic and scarcely compatible with the Basic Law. Starting from the position that national constitutional courts active even in European matters should be among the essential vertical ‘checks and balances’ in the European multi‐level system, a practical alternative to the Federal Constitutional Court's retreat is developed. This involves at the first stage a submission by the Federal Constitutional Court to the Court of Justice, something that in the banana case might have taken up questions on the method of fundamental‐rights review and the internal Community effect of WTO dispute settlement decisions. Should national constitutional identity not be upheld even by this, then at a second stage, as ultima ratio taking recourse to general international law, the call is made for the decision of constitutional conflicts by an independent mediating body.     

Constrained Waiver of Trial Rights? Incentives to Plead Guilty and the Right to a Fair Trial

This article develops an interpretative framework to examine when incentives to plead guilty should be found to constrain defendant choice to waive fair trial rights under the European Convention on Human Rights. This framework is informed by existing jurisprudence, specifically the judgments of the European Court of Human Rights in Natsvlishvili and Togonidze v. Georgia and Deweer v. Belgium, and socio‐legal literature. According to the framework, an incentive to plead guilty should be found to violate fair trial rights where it makes it unreasonable to expect defendants to exercise their right to a full trial, is independent of the projected outcome at trial, and causes the defendant to plead guilty. An empirical analysis of guilty‐plea practice in England and Wales informed by this new framework identifies problematic incentives and suggests such incentives may disproportionately influence vulnerable defendants.     

Does Europe Need a Constitution? Demos,Telos and the German Maastricht Decision

Abstract: Through a close reading of the Maastricht Decision of the German Federal Constitutional Court Weiler examines critically the so-called No-Demos Thesis according to which the absence of a European Demos precludes democratisation of the Union at the European level and requires the mediation of Member State institutions. He traces the roots of this thesis to Carl Schmitt and argues that it represents a failure of the Court to understand the Union in terms different from the Schmittian strand in German constitutional theory. He claims, inter alia, that the No Demos thesis is premised on an organic understanding of peoplehood deriving from the European Nation-State tradition which conflates nationality and citizenship and can, as a result, conceive of Demos only in statal terms. Weiler first presents an alternative view of the Union and of supranationalism and then offers a non organic view of Demos and argues for a ‘European’ notion of membership in which each individual would belong to multiple demoi defined in different ways.     

The policy origins of the European economic constitution

This article traces the origins of the European economic constitution in the debate on Article 30 of the EC Treaty (general rule on the free movement of goods) between 1966 and 1969, which resulted in Directive 70/50. In this, the first archive‐based analysis of the policy origins of the Court's Dassonville (1974) decision, the article demonstrates that there was a strong continuity in the investment by a number of key actors in focusing on Article 30 to create the single market from the mid‐1960s. These civil servants and lawyers provided the backbone for the Commission's transformation of the Cassis de Dijon judgment (1979) into a powerful tool, driving back the need for legislative harmonisation and making it a cornerstone of the Single European Act of 1986. The article therefore analyses one of the key moments in the transformation of European law.