Denationalization and the Very Idea of Democratic Constitutionalism: The Case of the European Community

Within the current debates about Euro‐constitutionalism, the conventional options are either to defend a vision of the European Union (EU) which separates global economic law from national sovereignty, and thus relies on the legitimizing powers of free markets, or to regard the legitimation problem (at least under current conditions) as beyond solution: This view argues that any further progress towards an ever closer Union would inevitably increase the legitimation deficit and that therefore the capacity for political action of the nation state should be protected or restored. This paper seeks to break the stranglehold of the, as is argued, false dichotomy (global markets vs. national democracy), and it argues that an extension of democracy beyond the nation state is possible.     

A European Legal Method? On European Private Law and Scientific Method

This article examines the relationship between European private law and scientific method. It argues that a European legal method is a good idea. Not primarily because it will make European private law scholarship look more scientific, but because a debate on the method of a normative science necessarily has to be a debate on its normative assumptions. In other words, a debate on a European legal method will have much in common with the much desired debate on social justice in European law. Moreover, it submits that, at least after the adoption of the Common Frame of Reference by the European institutions, European contract law can be regarded as a developing multi-level system that can be studied from the inside. Finally, it concludes that the Europeanisation of private law is gradually blurring the dividing line between the internal and external perspectives, with their respective appropriate methods, in two mutually reinforcing ways. First, in the developing multi-level system it is unclear where the external borders of the system lie, in particular the borders between Community law and national law. Second, because of the less formal legal culture the (formerly) external perspectives, such as the economic perspective, have easier access and play an increasing role as policy considerations.     

National Parliaments and European Integration: What We Know and Agenda for Future Research

The role of national legislatures in European integration first received serious attention in the mid-1990s in connection with debates on the EU's democratic deficit. Since then, both academics and politicians have entered a lively debate on how best to involve national parliaments in EU affairs. The purpose of this article is to examine critically the state of research on the role of national parliaments in European integration and to use that existing knowledge to suggest avenues for further research. The main argument is that through focusing almost exclusively on scrutiny of European affairs, the literature has failed to acknowledge the multiple constraints that impact on legislatures. There is a demand for more theory-driven analyses of actual behaviour that extend beyond describing formal procedures and organisational choices. Future research should also pay more attention to the strategies of political parties and to the incentives of individual MPs to become involved in European affairs.     

Legitimacy for a Supranational European Political Order—Derivative,Regulatory or Deliberative?

This paper discusses some models purported to legitimise a European supranational legal order. In particular, the author focuses on an application of the so-called regulatory model to the complex structure of the European Community and the European Union. First of all, he tackles the very concept of legitimacy, contrasting it with both efficacy and efficiency. Secondly, he summarises the most prominent positions in the long-standing debate on the sources of legitimation for the European Community. Thirdly, in this perspective, he analyses several, sometimes contradictory, notions of the rule of law. His contention is that we can single out five fundamental notions of the rule of law and that some but not all of them are incompatible with or oppose democracy. Finally, the paper addresses the regulatory model as a possible application of the rule of the law to the European supranational order. The conclusion is that the regulatory model should be rejected if it is presented as an alternative to classical democratic thought, though it might be fruitful if reshaped differently and no longer assessed from a functionalist standpoint of deliberation.     

A Toolbox for European Judges

The forthcoming instrument on European contract law, be it in the shape of an optional code for cross‐border contracts or as an official toolbox for the European legislator, is likely to have a spill‐over effect on private law adjudication in Europe. Judges will have no great difficulty in finding model rules and definitions that might come in handy when dealing with gaps and ambiguities in European private law. However, the question is whether such a role as a toolbox for judges would be legitimate. I discuss three types of possible legitimation strategies: traditional methods of legal interpretation, the new European methods and merely political legitimation. It will often depend on the circumstances of the case at hand and the characteristics of the particular model rule or definition that is being borrowed what mode of legitimation will prove to be more convincing. However, generally speaking legitimation in terms of the ‘general principles of civil law’ that the CJEU has recently been developing seems a particularly promising strategy. On the other hand, it seems unlikely that European courts could come under a duty, following from the principle of sincere cooperation, to use the instrument as a toolbox.     

European integration assessed in the light of the ‘rules vs. standards debate’

The interplay of various legal systems in the European Union (EU) has long triggered a debate on the tension between uniformity and diversity of Member States’ (MS) laws. This debate takes place among European legal scholars and is also paralleled by economic scholars, e.g. in the ambit of the ‘theory of federalism’. This paper takes an innovative perspective on the discrepancy between ‘centralized’ and ‘decentralized’ law-making in the EU by assessing it with the help of the rules versus standards debate. When should the EU legislator grant the national legislator leeway in the formulation of new laws and when should all be fixed ex ante at European level? The literature on the ‘optimal shape of legal norms’ shall be revisited in the light of law-making in the EU, centrally dealing with the question how much discretion shall be given to the national legislator; and under which circumstances. This paper enhances the established decisive factors for the choice of a rule or a standard in a national setting (complexity, volatility, judges’ specialization and frequency of application) by two new crucial factors (switching costs and the benefit of uniformity in terms of information costs) in order to assess law-making policies at EU level.     

Taking the Law Seriously: On Political Science and the Role of Law in the Process of European Integration

Abstract: The interdisciplinary discourse on European law seems paradoxical. While the editors of this Journal plead for a contextual jurisprudence, political scientists are discovering the importance of law for the integration process. This article explores the merits and problems of both of these shifts¹. On the one hand, it points to implicit assumptions of legal arguments that need to be contrasted with the insights of political sciences into mechanisms of integration processes and the functioning of inter-governmental bargaining - and is thus to be read as an appeal for a 'contextual' jurisprudence. On the other hand, it argues that political science analyses, even when they take the legal dimension of European integration into account, tend to rely upon an instrumentalist view of the legal system which fails to acknowledge the Law's normative logic and discursive power. This theoretically complex argument is exemplified first by an analysis of the tensions between the legal supranationalism of the European Court of Justice and the German Constitutional Court's defence of national constitutionalism, already intensively discussed in this Journal². What the article adds is an extension of the constitutional debate to the economy. It argues that Europe cannot, and should not, be based upon a dichotomous structure of (national) political rights and (European) economic liberties.     

A European Constitution in a Multinational Europe or a Multinational Constitution for Europe?

Abstract: What is the role of the nation‐state in the process of European constitutional integration? How can we transcend our divisions without marginalising those who believe in them? This article critically analyses the theoretical bases of the Treaty Establishing a Constitution for Europe and tries to explain why its ratification is so problematic. Authors such as Habermas have argued that a new European model of social cohesion is needed, and Habermas suggests that the sense of ‘community’ in a democratic Europe should be founded exclusively on the acceptance of a patriotic constitution. However, this view is criticised by authors such as Weiler and MacCormick. In this article, I explain the limits of these theoretical analyses. I will argue that a European constitutional project can be more than formally legal only if two normative conditions are satisfied: it is the result of public debate and the European Constitution includes the procedures for the recognition of European national diversity. I suggest that a theory of constitutional multinationalism, similar to the one proposed by Tully, might provide an attractive model for a European social integration. The article is divided in two parts. In the first, I explain why Habermas’ constitutional patriotism or MacCormick's states based Europe cannot provide a convincing theoretical model for a socially and constitutionally integrated Europe. In the second part, I will give an outline of Tully's idea of multinational democracy as a model for a European constitutional integration.     

Democracy in Europe: Why the Development of the EU into a Transnational Democracy Is Necessary and How It Is Possible

Can the process of European unification lead to a form of democracy that is at once supranational and situated above the organisational level of a state? The supranational federation should be constructed in such a way that the heterarchical relationship between the Member States and the federation remains intact. The author finds the basis for such an order in the idea of the EU constituted by a ‘doubled’ sovereign—the European citizens and the European peoples (the States). In order to sustain such an order, reforms of the existing European treaties are needed. It is necessary to eliminate the legitimation deficits of the EU in a future Euro‐Union—that is, a more closely integrated core Europe. The European Parliament would have to gain the right to take legislative initiatives, and the so‐called ‘ordinary legislative procedure’, which requires the approval of both chambers, would have to be extended to all policy fields.     

The conference of European affairs committees: A collective voice for national parliaments in the European union

The role of national parliaments in the European Union has been the subject of intense debate in the last decade. The Maastricht and Amsterdam Treaties contained significant texts aimed at enhancing the role of national parliaments. Several major political figures in Europe have recently discussed the case for making the collective voice of national parliaments better heard and this issue is firmly on the ‘post‐Nice’ agenda.’ In parallel, an important debate has been running between the parliaments themselves about a collective role for national parliaments. Since 1989, a little‐known body has provided a forum for these debates. This article aims to set out the history of that body, and to highlight some of the issues surrounding an enhanced role for national parliaments.     

The Self-Referential European Polity, its Legal Context and Systemic Differentiation: Theoretical Reflections on the Emergence of the EU's Political and Legal Autopoiesis

Abstract:  This article starts by summarising major theoretical debates regarding European polity and governance. It highlights the role of statehood in those debates and suggests moving beyond the constraints of institutionalist and constructivist perspectives by adopting specific notions from the theory of autopoietic social systems. The following part describes the EU political system as self-referential, functionally differentiated from the system of European law, and internally differentiated between European institutions and Member State governments. Although the Union transgresses its nation-state segmentation, the notions of statehood and democratic legitimacy continue to inform legal and political semantics of the EU and specific responses to the Union's systemic tensions, such as the policy of differentiated integration legislated by the flexibility clauses. The democratic deficit of instrumental legitimation justified by outcomes, the most recent example of which is the Lisbon Treaty, subsequently reveals the level of EU functional differentiation and the impossibility of fostering the ultimate construction of a normatively integrated and culturally united European polity. It shows a much more profound social dynamics of differentiation at the level of emerging European society—dynamics which do not adopt the concept of the European polity as an encompassing metaphor of this society, but makes it part of self-referential and self-limiting semantics of the functionally differentiated European political system.     

European Law Beyond ‘Ever Closer Union’ Repositioning the Concept,its Thrust and the ECJ's Comparative Methodology

The article investigates competing understandings of European law. It supports, against the prevailing EU‐centred understanding, an ecumenical concept that embraces EU law, supplementing international instruments, the European Convention on Human Rights and, importantly, various domestic laws enacting or responding to such transnational law, as well as European comparative law. To keep the concept in sync with European politics, it posits a new idea that binds the parts together: to provide for a European legal space rather than further European integration (the ever closer union). This idea can also serve as European law's functional equivalent to forming one legal order. European law thus conceived grasps the puzzling complex of interdependent legal orders, sets a common frame for corresponding reconstructions (European composite constructions, legal pluralism, network theories, federalism or intergovernmentalism) and allows forces with diverging outlooks to meet in one legal field, on one more neutral disciplinary platform. Within this framework, European comparative law finds a new mission as well as a sound legal basis.     

The Missing View of the Cathedral: The Private Law Paradigm of European Legal Integration

The traditional partition between public and private law continues to reinforce the belief that public law is the only proper realm of political debate, where decisions having redistributional consequences are and should be taken. This allows for a seemingly minor role of private law in the debate on European integration. This article challenges such a traditional image by noticing the central role of private law in the several legal systems of the European Union, and by analysing a few instances of resistance to private law integration. The analysis suggests that, while fully engaged in debating the public law implications of integration, Member States strive to keep civil adjudication within their control and to protect the self–contained, autonomous structure of their codes (or sets of private law doctrines) from the disruptive impact of European legislation. Integrationist pressures compel national legal actors to make explicit the social and economic choices underlying private law rules. Against such pressures, States' resistance may take the shape of formalist entrenchment.     

The Troika: The Interlocking Roles of Commission v. Luxembourg and Belgium,Van Gend en Loos and Costa v. ENEL in the Creation of the European Legal Order

Through comparisons with dispute resolution procedures in the North American Free Trade Area's Side Agreements, and with the debate over the direct effect of World Trade Organization obligations in the European legal order, this paper demonstrates that three of the European Court of Justice's most important decisions—Commission v. Luxembourg and Belgium, Van Gend en Loos and Costa v. ENEL—should be understood as combining to reorganise general international law's relationship between the EU Member States by substituting national court application of European obligations for the use of interstate retaliation as an enforcement mechanism, and thus providing the foundations for the EU's distinctive legal order.     

Quasi-National European Identity and European Democracy

Democracy may well be the primary virtue of political systems. Yet European politics is marked by a democracy deficit that will not disappear spontaneously. While legal and political theory on this issue is dominated by supporters of civic institutionalism and constitutional republicanism, liberal nationalists seem to be split. They justify the civic nationhood of member states, but they shrink away from the idea of a European people. This essay claims that a quasi-national conception of European identity can be conducive to the rise of a democratic political union of Europe. It discusses the mechanisms and rules for Europeanization of the sense of equal dignity and solidarity. This approach to supranational identity is explicitly instrumental and orientated towards the long run. However, the main liberal objections against it can be countered.     

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.     

Property rights in personal data: Learning from the American discourse

This contribution is an attempt to facilitate a meaningful European discussion on propertization of personal data by explaining the idea as it emerged in its ‘mother-jurisdiction’, the United States. The piece starts with an overview of how the current US legal system addresses the data protection problem and whether, according to the US commentators, the law does it effectively. Furthermore, the contribution presents propertization of personal information as an alternative to the existing data protection regime and one of the ways to fill in the alleged gaps in the US data protection system. The article maps the US propertization debate. Pro-propertization arguments are considered from economic perspective as well as from the perspective of the limitations of the US legal and political system. In continuation it analyses proposals on how property rights in personal data would have to be regulated, if at all, in case the idea of propertization is accepted. The main points of criticism of propertization are also sketched. The article concludes with a brief summary of the US propertization discourse and, most importantly, with a list of the lessons Europeans can learn from their American counterparts engaging in the debate in the home jurisdiction. Among the main messages is that the outcome of the debate depends on the definition of the problem propertization is called on to tackle, and that it is the substance of the actual rights with regard to personal data that matters, and not whether we label them as property rights or not.     

Theoretical Perspectives on European Governance

Abstract: The paper reviews some theories of social science which could contribute to the development of a concept of European governance going beyond traditional notions, such as federal states' or 'international organisation'. The theoretical argument is based on the culturalist version of neo-institutionalism, which stresses the role of ideas in the functioning and transformation of a political order. It is claimed that both globalisation and functional differentiation transform existing nation-states and shape the emerging European polity. European governance is characterised as poly-centric and non-hierarchical. Finally, different approaches to the legitimation of such a polity are discussed. The paper comes to the conclusion that the emergence of a European political order is part of a process which could require a rethinking of basic social scientific concepts.     

Informal Politics, Formalised Law and the 'Social Deficit' of European Integration: Reflections after the Judgments of the ECJ in Viking and Laval

The judgments of the European Court of Justice (ECJ) of December 2008 in Viking and Laval on the compatibility of national collective labour law with European prerogatives have caused quite a heated critical debate. This article seeks to put this debate in constitutional perspectives. In its first part, it reconstructs in legal categories what Fritz W. Scharpf has characterised as a decoupling of economic integration from the various welfare traditions of the Member States. European constitutionalism, it is submitted, is bound to respond to this problématique. The second part develops a perspective within which such a response can be found. That perspective is a supranational European conflict of laws which seeks to realise what the draft Constitutional Treaty had called the 'motto of the union': unitas in pluralitate. Within that framework, the third part analyses two seemingly contradictory trends, namely, first, albeit very briefly, the turn to 'soft' modes of governance in the realm of social policy and then, in much greater detail, the ECJ's 'hard' interpretations of the supremacy of European freedoms and its strict interpretation of pertinent secondary legislation. The conflict-of-laws approach would suggest a greater respect for national autonomy, in particular, in view of the limited EU competences in the field of labour law.     

Medicare program; home health prospective payment system refinement and rate update for calendar year 2008. Final rule with comment period

This final rule with comment period sets forth an update to the 60-day national episode rates and the national per-visit amounts under the Medicare prospective payment system for home health services, effective on January 1, 2008. As part of this final rule with comment period, we are also rebasing and revising the home health market basket to ensure it continues to adequately reflect the price changes of efficiently providing home health services. This final rule with comment period also sets forth the refinements to the payment system. In addition, this final rule with comment period establishes new quality of care data collection requirements. Finally, this final rule with comment period allows for further public comment on the 2.71 percent reduction to the home health prospective payment system payment rates that are scheduled to occur in 2011, to account for changes in coding that were not related to an underlying change in patient health status (section III.B.6).