The Treaty of Nice: The Sharing of Power and the Institutional Balance in the European Union—A Continental Perspective

This paper presents an initial response to the conclusions of the Nice Summit and the new EU Treaty which emerged from it. It consists of two parts: in the first I discuss the climate in which the Intergovernmental Conference (IGC) took place and the opening positions of the Institutions, the Member States, and the applicant countries. The results achieved at Nice are set out in the second part, with special emphasis on the themes that mark a shift of power within the Community's institutional architecture; i.e. the extension of qualified‐majority voting in the Council and the co‐decision procedure with the European Parliament, the reweighting of votes and the composition of the Institutions with a view to an enlargement which is both imminent and unprecedented in the history of the EU. I conclude that while the results of the IGC and the new Treaty of Nice fall short of what is needed in an EU with ambitions on a continental scale, they do mark another stage in the process of European integration and the permanent evolution of its constitution. In this sense, the balance of power is likely to be different from what it has been in the past. The Franco‐German axis has been severely weakened, the UK and Spain seem to be determined to play a central role, and the smaller countries are seeking to retain some influence over how the process works. New alliances are likely to emerge, particularly after enlargement, with Germany in search of a dominant position, France desperately trying to preserve the status quo, and the UK wanting to influence the direction of moves towards integration from the inside. Nice seems to mark an interim stage in this process. A new IGC has already been scheduled for 2004. There is no doubt that the post‐Nice period will be one of transition towards a new distribution of power within the EU, sanctioned by a new, highly constitutional treaty.     

《欧盟宪法条约》对欧盟人权保护的影响

《欧盟宪法条约》的通过和生效将从根本上矫正欧盟经济、政治、军事和人权的不对称性,并使欧盟的人权保护从政治层面提升到司法层面。这一条约还从根本上弥补了欧盟的“人权赤字”,并使欧盟的人权保护制度与欧洲理事会的人权保护制度相连结,使欧盟的人权保护由点扩大到面。可以期待,随着条约的生效和施行,欧盟的人权保护将逐步处于区域性和全球性人权保护的领跑地位。     

从宪法条约看欧盟与成员国之间的权力分配——兼评法、荷对宪法条约的否决以及欧盟的意义

为了解《建立欧洲宪法的条约》中对于成员国与欧盟机构之间的权力分配,本文从:欧盟权限的范围、欧盟如何在其授权范围内进行立法决策、欧盟法的效力等三个角度对该条约进行了分析。可以看出,宪法在对欧盟进行广泛授权的同时,仍然从根本上维护了成员国的主权,宪法条约并没有从根本上推进原有的条约体系已经达到的一体化的程度。但兼顾了一体化和各民族特征的欧盟本身正是二十世纪政治文明最重要的创新性成果,是其他国家和地区学习的典范。     

国家安全的概念与维护国家安全的内容

“国家安全”概念是侦查保卫理论中的一个十分重要的基本概念,不同国家有着不同的解释;国家安全的概念和内容又是随着形势的发展而不断变化的,但其实质是维护国家政权和社会政治稳定。     

Rethinking UK Parliamentary Adaptation in EU Affairs: Devolution and Europeanisation

How national parliaments adapt to the European Union is an important debate. However, scholars often overlook the regional aspect. This is particularly so for the UK where, despite devolution since 1999, scholarship remains largely devolution-blind. It is assumed that evaluating UK parliamentary adaptation only requires assessing the work of Westminster committees. This article takes a first step towards rectifying this oversight through reconceptualising UK–EU parliamentary engagement as multi-territory, not state-centric. This is demonstrated by comparing the social construction of practices in Scotland, Wales and at Westminster since 1999. Acknowledging devolution, however, does not just require comparing practices. Additionally, the paper asks how the ideas of devolution have been taken up by actors, potentially transforming the meaning of UK engagement for them. This necessitates new approaches drawn from interpretivist and constructivist institutionalist theories. Ultimately, therefore, the paper goes further than arguing for devolution-aware research to promoting change more generally in how parliamentary adaptation is theorised.     

Democratic Accountability and National Parliaments: Redefining the Impact of Parliamentary Scrutiny in EU Affairs

Abstract:  The question of strengths and weaknesses of national parliaments in EU affairs, one of the most salient in the debate on the democratic legitimacy of the EU, is generally answered by assessing formal parliamentary powers which can influence their governments' EU policy. Such an evaluation, however, is flawed: Formal mandating rights are usually incompatible with the overall logic of parliamentary systems, which explains why most national parliaments make very little use of them. Even more importantly, it unduly reduces parliamentary functions to the legislative or policy-making function. Drawing on agency theory, it will instead be argued that the functions of public deliberation and of holding the government publicly to account are at least as important and therefore need to be included in a redefined concept of parliamentary strength. In particular, the article proposes a distinction between two different elements of accountability—monitoring and political scrutiny—which recognises parliamentary majority and opposition as two distinct agents of the electorate.     

论《欧洲宪法条约》对欧共体共同商业政策的改革

<欧洲宪法条约>(The Treaty Establishing a Constitution for Elarope,以下简称<宪法>)对现行欧盟法律制度进行了全方位的改革.     

The Last Bite of the BITs—Supremacy of EU Law versus Investment Treaty Arbitration

According to Article 267 TFEU, national courts of the EU Member States can (and sometimes must) ask for a preliminary ruling from the Court of Justice on the interpretation and application of Community law, including international treaties and recommendations, and on the validity of Community secondary legislation. In this way, it is ensured that EU citizens are treated equally throughout the Union. However, this is not applicable when it comes to arbitral proceedings, be they commercial or investment arbitrations. The Court does not accept references for preliminary rulings from arbitral tribunals. For this reason, respondent states in international arbitral proceedings have argued that arbitration and EU law are utterly incompatible. In their submissions as respondents in arbitral proceedings, EU Member States have argued that, as a result of EU accession, bilateral investment treaties (BITs) have been automatically terminated. In subsidiary, they sometimes claim that, due to their incompatibility with EU law, BITs cannot apply. But if BITs are not applicable anymore, there are few remedies left for investors within the EU.     

The State and Telecom Surveillance Policy: The Clipper Chip Initiative

United States law enforcement and national security agencies have claimed that the proliferation of strong private-sector encryption is eroding their ability to monitor the electronic communications of terrorists, drug traffickers and the like. In response, the "Clipper Chip" initiative was launched. The aim of the initiative was to guarantee law enforcement access to a set of so-called "spare keys" that could be used to unlock encrypted electronic messages. Efforts were also made to internationalize the Clipper Chip initiative. In the face of intense opposition, the initiative was shelved in 1999. This article delineates and explains the formation and eventual demise of the Clipper Chip initiative. Building on the work of other scholars, the authors utilize theories of state policy making to identify the key determinants that shaped the different moments of the Clipper Chip initiative.     

Resolving Incompatibilities of Bilateral Investment Treaties of the EU Member States with the EC Treaty: Individual and Collective Options

Bilateral Investment Treaties (BITs) concluded by the EU Member States contain substantially similar clauses, including free movement of capital and investor‐to‐state dispute resolution. Article 307 EC provides for the primacy of pre‐accession treaties over the EC Treaty and simultaneously requires the Member States to eliminate their mutual incompatibilities. The European Court of Justice has declared that free movement of capital clauses of Austrian and Swedish pre‐accession extra‐EU BITs are incompatible with the EC Treaty as they will impede any restrictions on the movement of capital imposed as future Community legislation. A similar ‘free movement of capital’ clause is present in all extra‐EU BITs of the Member States, whether pre‐ or post‐accession. Article 307, however, does not apply to the post‐accession treaties which are equally capable of contriving the same consequences of impeding the application of the EC Treaty. In addition, the application of intra‐EU BITs provides investors from BIT party states access to the investor‐to‐state dispute resolution which is not available to investors from the Member States who do not have BITs with those Member States. This is discrimination and may distort the principle of equal treatment within the EU. Furthermore, the newly acceding EU States are facing extensive arbitral claims for carrying out the BIT‐EU conflicting obligations within their respective territories.     

National Parliamentary Control of EU Policy: The Challenge of Supranational Institutional Development

The history of the EU is characterised by rapid and complex institutional development. This leaves European Affairs Committees (EACs) in national parliaments with a moving target problem in their endeavours to control the government's EU policies. This paper investigates how EACs react to this challenge. Building on the rational delegation literature, it is argued that EACs are likely to adapt control instruments in tandem with institutional changes at the supranational level. Using McCubbins and Schwartz (1984, American Journal of Political Science, 28, 165–179), it is further argued that EACs are likely to want to impose both police patrol and fire alarm control on the government. These arguments are investigated in the case of Denmark during the 50-year period since the first Danish application for EU membership in 1961, and considerable support is found for the authors' hypotheses.     

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.