From Balance to Conflict: A New Constitution for the EU

As the crisis (and the Union's response to it) further develops, one thing appears clear: the European Union post‐crisis will be a very different animal from the pre‐crisis EU. This article offers an alternative model for the EU's constitutional future. Its objective is to invert the Union's current path‐dependency: changes to the way in which the Union works should serve to question, rather than entrench, its future objectives and trajectory. The paper argues that the post‐crisis EU requires a quite different normative, institutional and juridical framework. Such a framework must focus on reproducing the social and political cleavages that underlie authority on the national level and that allow divisive political choices to be legitimised. This reform project implies reshaping the prerogatives of the European institutions. Rather than seeking to prevent or bracket political conflict, the division of institutional competences and tasks should be rethought in order to allow the EU institutions to internalise within their decision‐making process the conflicts reproduced by social and political cleavages. Finally, a reformed legal order must play an active role as a facilitator and container of conflict over the ends of the integration project.     

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.     

The Effectiveness of the EU's Ozone Policy

Has the EU's ozone policy been effective? In other words: What caused the 90 per cent phase-out of ozone depleting substances (ODS) within the EU? Was it due to an EU-wide regulatory approach, to national circumstances, or to the Montreal Protocol? As EU's environmental policy has not been overly successful so far, it would interesting to know why ozone policy is an area where the EU and its Member States have reached targets effectively over a relatively short time. We suggest that the effectiveness of EU's ozone policy is due to two factors that together secured this rapid phase-out. First, the ozone policy was enacted by means of an EU regulation – rather than by directives – which required all Member States and all larger ODS-generating corporations to implement a ban simultaneously. Second, with the US administration making a u-turn and the increased availability of ODS-substitute chemicals, Europe saw a political opportunity to speed up the phase-out process. A limited study of the phase-out of ODS in Spain supports this argument. While the EU's ozone policy has been effective, its success owes much to particular economic and political circumstances associated with the issue of ozone depletion.     

EU Climate Change Litigation,the Role of the European Courts,and the Importance of Legal Culture

The purpose of this article is to show it is only in light of legal culture that climate change jurisprudence in the European Union can be explained. Examining the case law concerning the EU Emissions Trading Scheme, this article demonstrates that climate change proceedings in the European Union raise questions that stand at the heart of the EU legal order; that is, they demand that the boundaries of the EU's regulatory competences are drawn. In effect, the EU courts focus on ensuring that EU climate change laws are in accord with the rule of law or, in the context of EU law, the borders of the EU's environmental regulatory powers. As such, this article shows that attention needs to be given to the interaction between climate change laws and the constitutional role of the EU judiciary. These interactions are considered here together with the contingency of EU climate change litigation on EU legal culture.     

Constitutional Review in the Mega‐Leviathan: A Democratic Foundation for the European Court of Justice

The European Court of Justice (ECJ) serves, among other things, as a constitutional court for the EU. This means that it possesses the legal right to strike down both EU and national laws it deems irreconcilable with treaty provisions. In the present article, we shall draw on Hans Kelsen's theory of democracy to argue that the ECJ's competence to review and invalidate legislation is, in fact, indispensable for the democratic legitimacy of the EU's legal system as a whole.     

The EU ‘Stress Tests’: The Basis for a New Regulatory Framework for Nuclear Safety

Among the constitutional tensions at the heart of the European integration process, the relationship between ‘mainstream’ EU Law (framed by the Treaty on European Union) and Euratom Law has often been overlooked. Nonetheless, the EU's response to the nuclear power plant accident in Fukushima provides an opportunity to revisit this relationship. This article specifically aims to highlight the dysfunctions of the prevailing understanding of the Euratom's provisions on nuclear safety matters as well as to identify, under a joint interpretation of all EU Treaties, how to develop a European nuclear safety regime that reinforces the compensatory role of EU law and contributes to enhance the EU's legitimacy.     

Tailoring Representative Democracy to the European Union: Does the European Constitution Reduce the Democratic Deficit?

Abstract Even if the institutions of representative democracy that have developed in the nation‐state context cannot be simply transposed to the European Union, for practical and normative reasons they do provide the main starting point for any reflection on the EU's ‘democratic deficit’. This article draws upon the Constitution prepared by the European Convention to reconstruct the concept of representative democracy in the EU. Drawing on the proposals put forward, it identifies two distinctive challenges that need to be overcome if the concept of representative democracy is to be successfully applied to the EU: the multilevel character of the polity and the shift of the centre of political gravity from legislative to executive politics. The article then examines the extent to which the institutional proposals contained in the Constitution go to meet these two challenges and also highlights some aspects in which these proposals fall short.     

Staring into the abyss: A crisis of the rule of law in the EU

Acceptance of the meaning, operation and enforcement of the rule of law in the EU by its Member States is critical to the Union's legitimacy. Any perceived or real crisis in the rule of law thus merits careful consideration. This article focuses on how a crisis in the rule of law occurred within the EU and how the intended ambiguity of the rule of law has entrenched this crisis. This article argues that the primary cause of the crisis has been the EU's development of a unique ideation of the rule of law ‐ as a constitutional norm, policy instrument and value ‐ that 'hollowed out' the rule of law from a constitutional principle to an expedient policy tool. The EU institutions have entrenched the crisis in the rule of law and then tried to manage the chasm between what it deems as respect for the rule of law and certain Member States' conduct.     

The Perils of ‘As If’ European Constitutionalism

This review article offers thoughts on Kaarlo Tuori's recent book, European Constitutionalism, and more particularly on what he calls the ‘disciplinary contest over the legal characterisation of the EU and its law’. As the book's title suggests, Tuori privileges the constitutional perspective in that contest, so much so—he freely admits—that his analysis ‘predetermine[s] how the EU and its law will be portrayed’. And therein also lies the book's main weakness. Tuori's predetermined ‘constitutional’ interpretation, like so much of the dominant legal discourse in the EU today, ultimately obscures the core contradiction in EU public law. National institutions are increasingly constrained in the exercise of their own constitutional authority but supranational institutions are unable to fill the void because Europeans refuse to endow them with the sine qua non of genuine constitutionalism: the autonomous capacity to mobilise fiscal and human resources in a compulsory fashion. The EU's lack of constitutional power in this robust sense derives from the absence of the necessary socio‐political underpinnings for genuine constitutional legitimacy—what we can call the power‐legitimacy nexus in EU public law. To borrow Tuori's own evocative phrase, the EU possesses at best a ‘parasitic legitimacy’ derived from the more robust constitutionalism of the Member States as well as from the positive connotations that using ‘constitutional’ terminology evokes regardless of its ultimate aptness. The result is an ‘as if’ constitutionalism, the core feature of which is an increasingly untenable principal‐agent inversion between the EU and the Member States, one with profound consequences for the democratic life of Europeans. The sustainability of integration over the long term depends on confronting these adverse features of ‘European constitutionalism’ directly, something that legal elites—whether EU judges, lawyers, or legal scholars—ignore at their peril.     

Post‐Sovereignty and the European Legal Space

The political constitution of the European polity has become strained in recent years by insistent pressures on its institutional capacity to resolve social problems. The article examines the EU's polity crisis in the context of the development of a distinctive modern conception of secular constitutional authority, focused on the ideal of sovereign self‐determination. As the work of Neil MacCormick illustrates, the EU provides a radical challenge to the on‐going capacity of the concept of sovereignty to provide a framework to address problems of legitimacy. The article explores the nature of this challenge, its historical context and its consequences with reference to debates over the nature of constitutional pluralism. It sets out a path to the renewal of the European constitutional debate through a re‐consideration of secular constitutional authority and the necessity of its connection to the idea of sovereignty. The article seeks to re‐engage in the task of ‘questioning sovereignty’.     

Reasoned ‘Balance’ in Europe's Area of Freedom,Security and Justice

This article considers how we might understand a constitutional ‘balancing’ of goods. In doing so, the article considers the EU's ‘Area of Freedom, Security and Justice’ (AFSJ) which poses the challenge as to how we balance our desire to feel secure with commitments to freedom and justice. The approach taken will be to argue that a ‘balance’ is a reasoned judgment, which must be understood in both a symbolic sense but, at the same time, also rooted in the practice of our constitutional decision making. This enables a political community to make sense of its value commitments so as to achieve a reflective balance between them. The article concludes that if the EU is to achieve an area of freedom, security and justice then it must be capable of developing a balance that can be a reasoned understanding of this constitutional commitment.     

The Lisbon Judgment of the German Constitutional Court,the Primacy of EU Law and the Problem of Kompetenz‐Kompetenz: A Conflict between Right and Right in Which There is No Praetor1

The ECJ has long asserted its Kompetenz‐Kompetenz (the question of who has the authority to decide where the borders of EU authority end) based on the Union treaties which have always defined its role as the final interpreter of EU law. Yet, no national constitutional court has accepted this position, and in its Lisbon Judgment of 2009 the German Constitutional Court (FCC) has asserted its own jurisdiction of the final resort' to review future EU treaty changes and transfers of powers to the EU on two grounds: (i) ultra vires review, and (ii) identity review. The FCC justifies its claim to constitutional review with reference to its role as guardian of the national constitution whose requirements will constrain the integration process as a standing proviso and limitation on all transfers of national power to the EU for as long as the EU has not acquired the indispensable core of sovereignty, i.e. autochthonous law‐making under its own sovereign powers and constitution, and instead continues to derive its own power from the Member States under the principle of conferral. Formally therefore, at least until such time, the problem of Kompetenz‐Kompetenz affords of no solution. It can only be ‘managed’, which requires the mutual forbearance of both the ECJ and FCC which both claim the ultimate jurisdiction to decide the limits of the EU's powers—a prerogative which, if asserted by both parties without political sensitivity, would inevitably result in a constitutional crisis. The fact that no such crisis has occurred, illustrates the astute political acumen of both the FCC and the ECJ.     

Reforming the United Kingdom Constitution: Law,Convention, Soft Law

The Governance of Britain Green Paper continues the programme of constitutional reform begun in 1997, and appears to reinforce the juridification of the UK's constitution. Nevertheless, several key reforms will be implemented not by legislation, but by creating new conventions. This article argues that such ‘declared’ conventions are best understood as a form of constitutional ‘soft law’, which attempt to influence constitutional behaviour rather than generating binding norms. Applying a regulatory analysis, it then argues that the case for a soft, rather than hard law approach to constitutional reform is weaker than its widespread use in the UK suggests. Finally, the article challenges the thesis that the political constitution is being replaced by a legal constitution, arguing that the government's attitude to constitutional reform still exhibits basic characteristics of political constitutionalism. Moreover, there is more to contemporary constitutional developments than a bipolar contest between political and legal constitutionalism.     

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.     

European Studies and the European Crisis: Legal and Political Science between Critique and Complacency

European Studies used to be dominated by legal and political science approaches which hailed the progress of European integration and its reliance on law. The recent set of crises that struck the EU have highlighted fundamental problems in the ways and means by which European integration unfolds. The quasi‐authoritarian emergency politics deployed in the euro crisis is a radical expression of the fading prevalence of democratic processes to accommodate economic and social diversity in the Union. As we argue in this paper, however, the mainstreams in both disciplines retain a largely affirmative and apologetic stance on the EU's post‐democratic and extra‐constitutional development. While political science contributions mostly content themselves with a revival of conventional integration theories and thus turn a blind eye to normatively critical aspects of European crisis governance, legal scholarship is in short supply of normatively convincing theoretical paradigms and thus aligns itself with the functionalist reasoning of the EU's Court of Justice. Yet, we also identify critical peripheries in both disciplines which intersect in their critical appraisal of the authoritarian tendencies that inhere in the crisis‐ridden state of European integration. Their results curb the prevailing optimism and underline that the need for fundamental reorientations in both the theory and practice of European integration has become irrefutable.     

The Log in Your Eye: Is Europe's External Promotion of Religious Freedom Consistent With its Internal Practice?

The commitment of the EU to the external promotion of the respect for human rights allegedly distinguishes its foreign policy from that of traditional powers. Yet there is the perception that EU's statements are not always consistent with internal practices. This article analyses one set of EU's inconsistencies that has not been sufficiently studied: the discrepancy between internal and external human rights standards. The article focuses on the promotion and protection of freedom of religion or belief, which has become a priority of the EU's foreign policy. It is submitted that the EU's external position generally reflects values common to the Member States, but is sometimes contradicted by the practice of domestic authorities. The human rights standards identified in the EU's foreign policy may arguably serve as a reference for legal reform and the interpretation of fundamental rights in Europe.     

Constitutional Balance in the EU after the Euro‐Crisis

This article analyses how the European Union's response to the euro‐crisis has altered the constitutional balance upon which its stability is based. It argues that the stability and legitimacy of any political system requires the structural incorporation of individual and political self‐determination. In the context of the EU, this requirement is met through the idea of constitutional balance, with ‘substantive’, ‘institutional’ and ‘spatial’ dimensions. Analysing reforms to EU law and institutional structure in the wake of the crisis – such as the establishment of the ESM, the growing influence of the European Council and the creation of a stand‐alone Fiscal Compact – it is argued that recent reforms are likely to have a lasting impact on the ability of the EU to mediate conflicting interests in all three areas. By undermining its constitutional balance, the response to the crisis is likely to dampen the long‐term stability and legitimacy of the EU project.     

EMU and the Shift in the European Labour Law Agenda: From ‘Social Policy’ to ‘Employment Policy’

This article examines the interaction between EMU and the European Union (EU) employment strategy and its implications for law. It focuses on the importance of EMU as a catalyst in the development of the EU's social and employment policy in the years following the Treaty on European Union in 1992, up to the inauguration of a new employment policy in the Treaty of Amsterdam. In analysing the EU's discourse on labour market regulation, it is arguable that a shift has occurred in the EU's position on the ‘labour market flexibility’ debate: that the EU institutions are more readily accepting of the orthodoxy that labour market regulation and labour market institutions are a major cause of unemployment within EU countries and that a deregulatory approach, which emphasises greater ‘flexibility’ in labour markets, is the key to solving Europe's unemployment ills, along with macroeconomic stability, restrictive fiscal policy and wage restraint. As the EU's employment strategy has matured, this increased emphasis on employment policy has come to displace discourses around social policy. This change in emphasis has important implications for EMU since it signals a re‐orientation from an approach to labour market regulation which had as its core a strong concept of employment protection and high labour standards, to an approach which prioritises employment creation, and minimises the role of social policy, since social policy is seen as potentially increasing the regulatory burden.     

European Union Constitution-Making, Political Identity and Central European Reflections

Abstract: This article focuses on the European Union's constitution‐making efforts and their specific reflections in the Central European accession states. It analyses both the temporal and spatial dimensions of constitution‐making and addresses the problems of political identity related to ethnic divisions and civic demos. It starts by summarising the major arguments supporting the Union's constitution‐making project and emphasises the Union's symbolic power as a polity built on the principles of civil society and parliamentary democracy. The EU's official rejection of ethnically based political identity played an important symbolic role in post‐Communist constitutional and legal transformations in Central Europe in the 1990s. In the following part, the text analyses the temporal dimension of the EU's identity‐building and constitution‐making and emphasises its profoundly future‐oriented structure. The concept of identity as the ‘future in process’ is the only option of how to deal with the absence of the European demos. Furthermore, it initiates the politically much‐needed constitution‐making process. The following spatial analysis of this process emphasises positive aspects of the horizontal model of constitution‐making, its elements in the Convention's deliberation and their positive effect on the Central European accession states. The article concludes by understanding the emerging European identity as a multi‐level identity of civil political virtues surrounded by old loyalties and traditions, which supports the conversational model of liberal democratic politics, reflects the continent's heterogeneity and leads to the beneficial combination of universal principles and political realism.     

EU Accession to the ECHR: Between Autonomy and Adaptation

After the European Union's accession to the European Convention on Human Rights the EU will become subject to legally binding judicial decisions of the European Court of Human Rights (ECtHR) and participate in statutory bodies of the Council of Europe (Parliamentary Assembly; Committee of Ministers) when they act under the Convention. Convention rights and their interpretation by the ECtHR will be directly enforceable against the EU institutions and against Member States when acting within the scope of EU law. This will vest the ECHR with additional force in a number of Member States, including Germany and the UK. All Member States will further be subject to additional constraints when acting under the Convention system. The article considers the reasons for, and consequences of the EU's primus inter pares position under the Convention and within the Council of Europe, and the likely practical effect of the EU's accession for its Member States.