Referendums and the Political Constitutionalisation of the EU

Abstract:  This article argues that European integration has triggered a dual constitutionalisation process in Europe. One is the revision of national constitutions to accommodate the integration project at the national level. The other is the construction of transnational rules to regulate novel inter-state relationships at the European level. EU referendums are contextualised in such a duel constitutionalisation process. At the domestic level, EU referendums handle the debates on national constitutional revision. At the transnational level, these popular votes ratify supranational constitutional documents. The article comparatively analyses three types of EU referendums—membership, policy and treaty referendums—according to this analytical framework, exploring the campaign mobilisation of voters, national governments, and transnational institutions, and examining the legal and political interaction between referendums and European integration. A key finding is that, as the dual constitutionalisation process deepens and widens, entrenched domestic players and restrained transnational actors are under increasing pressure to 'voice' themselves in EU referendums.     

Directly-Deliberative Polyarchy

This essay by Joshua Cohen and Charles Sabel promotes visions of democracy, constitutionalism and institutional innovations which may help to open up new dimensions in the search for legitimate European governance structures and their constitutionalisation. Faced with Europe's legitimacy problems, proponents of the European project often react by pointing to the many institutional failings in the (national) constitutional state. These reactions, however, seem simplistic, offering no normatively convincing alternatives to the once undisputed legitimacy of a now eroding nation state. The essay by Cohen and Sabel forecloses such strategies. Summarising and endorsing critiques of both the unfettered market system and the manner of its regulatory and political correction, it concludes that the many efforts to establish new equilibria between well-functioning markets and well-ordered political institutions are doomed to fail, and opts instead for fundamental change: conservative in their strict defence of fundamental democratic ideals, such ideas are radical in their search for new institutional arrangements which bring democratic values directly to bear. How is the concept of directly-deliberative polyarchy complementary to and reconcilable with our notions of democratic constiutionalism? To this question the readers of the essay will find many fascinating answers. Equally, however, how might the debate on the normative and practical dilemmas of the European system of governance profit from these deliberations? Which European problem might be resolved with the aid of the emerging and new direct forms of democracy identified in this essay? How might direct democracy interact with the intergovernmentalist and the functionalist elements of the EU system? Although this essay contains no certain answers to these European questions, its challenging messages will be understood in European debates.     

How to enforce European law? A new history of the battle over the direct effect of Directives, 1958–1987

This article explores the well‐known saga of the European Court of Justice's introduction of direct effect of Council Directives on the basis of new comprehensive archival research. The expansion of the doctrine of direct effect to include Directives was part of a drive of the Legal Service of the European Commission and the ECJ to strengthen the enforcement of European law. This threatened the deeper balance of competences between the European Community and its Member States and consequently led to a sharp response from the national parliaments and courts. The force of these responses and the deep crisis that had evolved in the late 1970s between France and the ECJ, led to a change in the EC's case law that limited the direct effect of Directives to the vertical relation between citizens and the respective Member State and excluded any horizontal effect. The story is an example of how the activist ECJ of the 1970s ran into resistance from the Member States and had to modify its doctrinal advances. It also suggests that the successful acceptance of the constitutionalisation of the Treaties of Rome pursued by the ECJ was by no means secure by the late 1970s.     

刑事诉讼制度发展的三种模式：一个概要性的分析

从各国刑事诉讼制度变迁的基本事实出发,大致可以概括出三种不同的刑事诉讼制度发展模式,即立法修律模式、司法判例模式与试点实验模式.这三种模式具有不同的内在特质,在推动刑事诉讼制度发展上各有其独特优势与内在局限.各国刑事诉讼制度变迁的历程表明,刑事诉讼制度发展不能只依赖一种模式,应是多种模式的组合或交替使用.目前我国刑事诉讼制度发展主要依靠立法修律和试点实验,司法判例还未被有效运用.未来应该根据各国刑事诉讼制度发展的经验以及上述三种模式的实际价值与内在局限,合理确定我国刑事诉讼制度发展的模式组合。     

Transparency in the EU Council of Ministers: An Institutional Analysis

The development of access to documents and open meetings provisions by the Council of Ministers of the European Union shows an interesting pattern: before 1992 no formal transparency provisions existed, between 1992 and 2006 formal transparency provisions dramatically increased, and since 2006 this increase has come to a halt. This paper aims to enhance our understanding of these shifts by conducting a historical institutional analysis of policy change. As explanatory factors, we consider the preferences and power resources of Member States, as well as external catalysts and social structures. We conclude that the current revision deadlock is more stable than the situation before 1992 because now the pro‐transparency coalition and transparency‐sceptic Council majority have entrenched their positions. Nevertheless, and in spite of Council entrenchment, we expect that Council transparency will continue to develop in the longer term, under the pressure of increasingly influential outside actors, particularly the European Parliament.     

Between discretion and control: Reflections on the institutional position of the Commission within the European citizens' initiative process

This article considers the institutional position of the Commission within the European citizens' initiative (ECI) process, with particular emphasis on its decision regarding the admissibility/registration of a proposed ECI, and its final decision on the outcome of an ECI which has met the necessary levels of support. The purpose of this contribution is to juxtapose the case‐law of the Court on the Commission's discretion and the relevant provisions of the Treaties with the evolution of European integration and, more specifically, the evolution of the Commission's role therein. Viewed under this prism, the Commission's powers at the registration stage (which in any event clearly fall under the scope of judicial review) are compatible with the constitutionalisation of the Union, whereas the Commission's width of discretion at the follow‐up stage, while compatible with the Commission's prerogatives, cannot easily be reconciled, nonetheless, with the Commission's limited legitimacy when compared to that of the co‐legislators, the fact that it may not always represent the Union interest, and the latter's pragmatic losses within the EU institutional balance.     

Common Foreign and Security Policy: The Consequences of the Court's Extended Jurisdiction

Despite the explicit exclusion of its jurisdiction, the Court of Justice of the European Union exercises judicial control over Common Foreign and Security Policy (CFSP). This article examines and explains how the Court's extended jurisdiction contributes to the juridification, judicialisation and constitutionalisation of the EU's compound CFSP structures. It first lays the groundwork by explaining the link between constitutionalisation and democratic legitimation and setting out the Court's formal jurisdiction over CFSP under Article 40 Treaty on European Union and Articles 218(11) and 275(2) Treaty on the Functioning of the European Union. The centre piece of the article then identifies how the Court's jurisdiction has expanded since the entry into force of the Lisbon Treaty, points at additional ‘substantive’ avenues of judicial review on the basis of access to information and access to justice, and analyses the effects of the Court of Justice of the European Union's extended jurisdiction for CFSP.     

Reconsidering the Premises of Labour Law: Prolegomena to an EU Regulation on the Protection of Employees' Personal Data

With its 1985 Directive on Data Protection, the European Union highlighted its commitment to the constitutionalisation of European law and, in particular, underlined its vision of the individual European as a rights-bearing individual; empowered through 'knowledge' and thus advantaged in communicative processes of political/social/legal bargaining. As such, the move to a data protection regime founded upon notions of individual empowerment, also mirrors a recent and fundamental re‐alignment in the guiding principles of regulative labour law, which has seen the paradigm of 'collective laissez‐faire' challenged, if not superseded, by a redirected emphasis upon the communicative empowerment of the individual employee rather than the representative function of employees' representatives. Accordingly, it is less than surprising that the field of labour law has seen increasing demands placed upon the Commission to fulfil its promise in the pre-amble to the 1985 Directive, and promulgate Regulations crafted to ensure data protection in line with the specific demands of individual societal sectors. This paper is a policy statement. It re-iterates the need for a Regulation on the protection of employees' data. Building on the comparative experience of the Member States, it outlines the nature, provisions and scope which such a regulation should entail so as to reflect, both the reality of the modern employment relationship, and a new normative vision of the workplace which aims to inject such relationships with a measure of communicative participation.     

EU constitutionalisation revisited: Redressing a central assumption in European studies

The constitutionalisation of the European Union has since the early 1990s become a truism in European studies. This article revisits the constitutionalisation theory drawing on the insights from emerging historical research and new strands of political science research. We find that the conventional constitutional narrative is less convincing when confronted with the new evidence from historical and political science research. New historical research show that Member State governments, administrations and courts have generally been rather reluctant to embrace the constitutional project of the ECJ. Furthermore, at the level of European politics, the ECJ and its case law have far from judicialized European decision‐making to the extent often claimed. Concluding, we reject the notion that the ECJ has successfully constitutionalised the EU, emphasising instead the inherent tensions in the process, which continue to complicate the efficiency of European law.     

行政诉讼司法建议制度的功能衍化

行政诉讼司法建议原本是一项裁判执行措施,但随着最高人民法院司法政策的变化,其发挥的事实功能被大大扩展。实践中,行政诉讼司法建议在规范性文件修改中发挥着功能性审查的作用。从社会变迁的视角观察不难发现,维稳压力、协调和解政策与地方发展型政府的模式变迁,诱发了对于行政诉讼司法建议的制度性需求,从而迫使司法建议成为行政诉讼工具箱中的重要工具。行政诉讼司法建议制度的功能衍化,为法社会学研究提供了一个极具价值的制度样本,亦为行政诉讼法的未来发展提供了背景材料。     

The Convention Method Revisited: Does It Have a Future and Does It Matter?

Scholars have argued that the convention method has democratised the process of treaty reform and increased the legitimacy of EU constitutionalisation. This article finds that the convention method has contributed to a slightly more democratic process, but has not, in any fundamental way, improved the democratic status of the EU's treaty reform process. We should accordingly not be too concerned over the future fate of the convention method. From a democratic perspective, we should be more worried over the possible scenario that future changes to the EU's institutional structure will come about through implicit constitutional change without any formal changes being made to the treaties. The often cumbersome ratification process could thereby be bypassed, but this would also deprive EU citizens of the only real opportunity they have of influencing decisions on the overall design of the integration project.     

Explaining the process of change taking place in legal rules and social norms: The cases of institutional economics and new institutional economics

This paper deals with the phenomenon of institutional change and has been conceived as an attempt to answer the following question: Can we retain theimage of institutional change contained in a theory when we replace a methodological foundation on which the theory was built by a different and alternative one? For an answer to be developed, special attention is paid to the contributions made by institutional economists (IE) and those made by transaction cost—new institutional economists (NIE). The question clearly shows that it is a paper on applied methodology rather than a survey on institutional change contributions. Because of that, its main purpose is not to increase our knowledge about the characteristics of real changes in legal rules and social norms, their causes, their processes, or their effects, though several examples are given of those institutionalist and new institutionalist contributions that analyze those changes. Our purpose is to investigate the way in which these two groups of economists approach the object of analysis already mentioned. Our conclusion will be that institutionalist and new institutionalist contributions are built on two different and mutually exclusive approaches because their respective methods of analysis (holism versus methodological individualism) are different and, above all, because they build their respective analyses on some concepts that are mutually exclusive (concepts showing power or nonvoluntary influences versus concepts showing voluntary transactions). Their analyses contain different and mutually exclusiveimages of the changes taking place in legal rules-formal institutions and social norms-informal institutions. Some comments about the limitations of the holist method of analysis are made in the paper.     

Charter and Enlargement

Current debates about the contents, status, and the future role of the EU Charter of Fundamental Rights should have a stronger 'enlargement dimension': the constitutionalisation of Europe (with the Charter as its key element) and the EU enlargement should be seen as two interrelated (and, possibly, mutually supportive) phenomena rather than as two separate challenges which must be approached one at a time. There are two main aspects to this relationship. First, the Charter may be seen as a yardstick by which the human rights credentials of the candidate states will be tested. Second (the central focus of this article), one may ask whether the candidate states, once involved in the debate about the constitutional future of Europe, will bring any constitutional insights which may affect the articulation of Charter rights. It is argued, against the background of candidate states' recent experience of constitution-making, that these insights should be embraced rather than feared, and that the current member states should resist a temptation of adopting a paternalistic approach towards the candidate states as participants in the European constitutional debate.     

当代伊斯兰国家诉讼法律制度的特征

伊斯兰诉讼法律制度是伊斯兰法系的重要组成部分 ,由于受特殊历史条件的影响 ,众多伊斯兰国家既保留了长期以来形成的以《古兰经》、《圣训》等宗教法为根本的诉讼模式 ,又借鉴和移植了原宗主国的诉讼法模式 ,不仅包括大陆法系诉讼模式和普通法系诉讼模式 ,同时还吸收了一些社会主义国家的诉讼法的原则和制度 ,如调解制度 ,于是当代伊斯兰国家诉讼模式呈现多元化特色。尽管伊斯兰各国民族独立以后 ,相继制定了各自的诉讼法典 ,组建了各自的司法机构 ,但无论格式体例还是具体内容或司法实践大多与原宗主国的诉讼法制关系密切 ,诉讼立法西方化明显。诚然 ,民族的自尊心 ,源远流长的伊斯兰教法律文化传统以及相对落后的社会生产力 ,决定了其诉讼制度的运作大多带有浓厚的本土化风格。这样 ,随着 2 1世纪世界变革的冲击波 ,已使堡垒最为坚固的伊斯兰法迈向自我改革的里程 ,多元化、西方化、本土化与复兴伊斯兰诉讼法的趋向构成当代伊斯兰诉讼法律制度发展的主流。在改革中 ,大多数伊斯兰国家选择的是折衷主义 :使现实的伊斯兰法既不与西方世俗法体系完全挂钩 ,也不与传统的宗教制度彻底决裂 ,而是跟随物质文明发展与维护信仰不变方面达成了妥协和统一     

An Analysis of Institutional Change in the European Union

Institutional change is guided by rules. In the European Union these rules are given by Art. 250–252 of the Treaty of Amsterdam. We analyze these articles as games in extensive form and characterize and compare the equilibria of these games. The analysis identifies the decisive actors and the conditions under which it comes to institutional changes in the European Union. In addition we analyze the tendencies for centralization inherent in these decision procedures as well as their ability to guarantee conflict-minimizing compromises between the institutional actors. We show that the historical evolution from Art. 250 over Art. 252 to Art. 251 implies an improved position of the European Parliament. Contrary to part of the literature we show that the move from Art. 250 to Art. 252 may have important consequences for the policies to be implemented and that the move from Art. 252 to Art. 251 improved the position of the European Parliament. Hence, our model is able to resolve the empirical anomalies resulting in conditional-agenda setting model by Tsebelis and therefore points to the importance of the sequential structure of the decision procedures.     

From European Integration to European Integrity: Should European Law Speak with Just One Voice?

Abstract: This article examines whether and how the moral principle of legal coherence or integrity, which has recently been developed further as a response to disagreement in the national legal context, applies to European law. According to the European integrity principle, all national and European authorities should make sure their decisions cohere with the past decisions of other European and national authorities that create and implement the law of a complex but single European legal order. Only by doing so, it is argued, can the European political and legal community gain true authority and legitimacy in the eyes of the European citizens to whom all these decisions apply. Although European integrity is primarily a product of European integration, it has gradually become one of the requirements of further integration. The article suggests that the principle of European integrity would help dealing with the growing pressure for common European solutions under conditions of increasing diversity. It places disagreement at the centre of European politics, as both an incentive and a means of integration by way of comparison and self‐reflectivity. It constitutes therefore the ideal instrument for a pluralist and flexible further constitutionalisation of the European Union.     

The European Social Contract and the European Public Sphere

Abstract:  The possible existence of a European democracy does not depend on the prerequisite of a homogeneous public sphere but on the understanding of the relationship between the normative basis of a European democracy—here a social contract—the structure of the European public sphere and the corresponding institutions. The normative concept of democracy as expressed in social contract theory is neither bound to the city-state nor the nation-state, but can be transferred to the European level. To realise the normative aims of the social contract the democratic institutions have to be—and were in the city—and the nation state—adapted to the structure of the respective public sphere. Two institutional characteristics of the democratic European polity could correspond to the heterogeneous European public sphere: (1) a cooperation of institutions with clearly separated and limited competences—contrary to the ideal-type sovereign institutions with broad competences in the nation-state, and (2) the policy field-oriented structure—contrary to the more uniform and functional structure of democratic institutions in the nation states.     

A Constitution for Antidiscrimination: Exploring the Vanguard Moment of Community Law

It is a commonplace that 'non-discrimination' is a fundamental principle of Community Law. If the principle is taken to express a broader commitment to equality, however, there appears to be something quite unusual about it. When compared with the standards set by modern constitutional law, the commitment to equality is, at least with respect to Member State action, less extensive; in the context of indirect gender discrimination, however, the principle acquires remarkable scope. Although this 'vanguard moment' of Community Law is tacitly acknowledged in the practice of the ECJ, it is, at the same time, subdued; the resources of the principle might be tapped, however, by moving toward a constitution for antidiscrimination. The article explores both the philosophical presuppositions and the institutional context of what could become a constitutionalisation of antidiscrimination at the level of Community Law.     

Punctuated equilibrium and path dependency in coexistence: the Israeli health system and theories of change

Israel's enactment of national health insurance was clearly a breakthrough. However, other aspects of reform that were supposed to be implemented simultaneously were stymied, in particular, the conversion of government hospitals to independent trusts and removing the Ministry of Health from the direct provision of services such as mental health and long-term care. This article explores how punctuated equilibrium and path dependency coexist in the Israeli case. In doing so, it examines the relevance of concepts provided by various theories of social and institutional change. Aside from path dependency and punctuated equilibrium, we discuss other notions derived from related theories, such as political leadership and the role of ideas. Applying these theories to the Israeli case helps better understand the coexistence of punctuated equilibrium and path dependency.     

EU Excise Duties and Section 90 of the Australian Constitution

The constitutionalisation of the EU has been not without its challenges. However, putting aside the apparent political difficulties of the constitutional process, this article argues that, because the further constitutionalisation of the EU depends on its ability to assimilate some features of a federal state, there are, at least, two reasons why the EU is not yet ready for its constitutionalisation. The first reason is that its excise duty system, which permits discriminatory and protectionist behaviour by Member States, prevents the EU from achieving its fundamental objective of an internal market. The second reason is the EU's budget, which is so small that it is doubtful whether the EU will survive its continuing enlargement. As a solution to this problem, this article introduces section 90 of the Australian Constitution, which provides the Commonwealth of Australia with the exclusive power to levy excise duties. The article argues that the adoption, by the EU, of a similar fiscal arrangement would remove the discriminatory and protectionist operation of its excise duty system and help enlarge the size of the EU's budget by providing it with a self‐ financing mechanism.