欧洲一体化与欧盟制宪:一种宪法学的解读

作为世界上最成功的目标和价值共同体 ,欧盟制宪既是欧洲一体化进展的必然结果 ,也是欧洲一体化深化和扩大的现实需要。用宪法学的理论分析欧盟制宪的动因、宪政基础 ,有利于从理论上解决欧洲宪法制定过程中可能产生的问题 ,也有利于向世界范围扩展宪政理念。     

European Union Citizenship: Writing the Future

Abstract:  EU citizenship has matured as an institution, owing to a number of important interventions by the European Court of Justice and legislative initiatives, such as the Citizenship Directive 2004/38/EC, which has recently entered into force. In this article, I critically examine minimalist and cosmopolitan conceptions of European citizenship and argue that once we dispense with the preoccupation of assigning primacy to a specific level of citizenship and establishing some kind of hierarchy among them, we can begin to address the questions and issues that really matter. Among these are the future governance of citizenship and the design of a more inclusive, multilayered and multicultural conception of citizenship. European citizenship entails a number of fruitful ideas for a more ambitious transition to a post-national tableau and can be the prototype for institutional experimentation on citizenship on a global scale.     

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.     

A European Constitution for Citizens: Reflections on the Rethinking of Union and Community Law

Whilst the European Union or Community is not a state and does not possess a political constitution in the sense of a series of irrevocable norms existing prior to and above Community or Union law, the evolution of the European legal system might nonetheless be regarded as a fundamental constitutional process. In this light, primary and secondary European law, together with the jurisprudence of the ECJ, might be said to be subjectivising certain specifically European principles thus contributing to the legal creation of sometimes novel rights for European Citizens. In a legal process similar to that seen within 19th Century Germany, European law is seeking a compensate for an incomplete political constitution through the development of a – second best – European Charter for Citizens.     

Balancing Fundamental Rights and Common Market Freedoms in Union Law: Schmidberger and Omega in the Light of the European Constitution

Abstract:  This article deals with how the Court of Justice balances fundamental rights protection and Common Market freedoms. From the particular perspective of the Charter and the ECHR, whose legal status will be upgraded upon entry into force of the European Constitution, it studies the Court of Justice's approach to fundamental rights invocations by Member States in the context of Common Market freedoms. For this purpose the judgments in Schmidberger and Omega will be discussed both in the current setting and that envisioned by the European Constitution. It will emerge that the Court of Justice's reasoning in Schmidberger and Omega can be criticised on different levels, and alternative approaches are proposed. At a later stage some further elements for refining the methodology for assessing Member States' fundamental rights invocations are addressed with a view to facilitating the Court of Justice more satisfactorily to take account of the current and likely future setting of fundamental rights protection in Union law.     

Constitutions,Constitutionalism, and the European Union

The institutional reforms of the EU, coupled with the EU Charter of Fundamental Rights, have fuelled the debate about a European Constitution. This paper begins by examining the nature of constitutions and constitutionalism. The focus then turns to the EU itself. It is argued that the Community has indeed been transformed into a constitutional legal order, and that the arguments to the contrary are not convincing. This does not however mean that the EU has, or should have, a European Constitution cognisable as such which draws together the constitutional articles of the Treaties, together with the constitutional principles articulated by the European Court of Justice. The difficulties with this strategy are examined in detail, and the conclusion is that we should not at present pursue this course. It would be better to draw on the valuable work done by the European University Institute in its recent study in order to simplify and consolidate the Treaties.     

论欧盟宪法危机认知之理论方法

如何看待所谓的欧盟宪法危机,在很大程度上是一种理论分析形态选择的问题。分析欧盟这一政治体系或者政治体的各种理论,其共同之处在于解释欧盟现象因何而生又如何发展的问题。欧盟宪政的发展过程实际上就是欧盟法律人格丰富与健全的过程。分析欧盟法律人格的构成因素以及各个因素之间的逻辑联系,既能解释欧盟宪政的历史演进,又能分析目前欧盟宪法危机的症结所在。欧盟法律人格构成因素的丰富与强健,既是欧盟宪政发展的动力之一,同时也给欧盟宪政发展带来了挑战,无论是保持欧盟发展的动力还是避免欧盟宪政发展所遇到的挑战,都依赖于欧盟法律人格构成的三个因素———规制性支柱、规范性支柱与认知性支柱———之间的平衡。     

Mixed Messages: Parental Responsibilities, Public Opinion and the Reforms of Family Law

This article explores some issues arising when updating familylaw to keep pace with changes in family practices and values,in particular with changing patterns of parenting. It considersthe extension of parental rights and responsibilities beyondthe conventional boundaries of family law – to unmarriedfathers, step-parents and grandparents – with referenceto four different roles of family law. These roles are: protectingchildren, resolving disputes, regulating family life and promotingfamily norms. The article takes as an example of legal reformthe recently enacted Family Law (Scotland) Act 2006, which extendsparental rights and responsibilities to unmarried fathers whojointly register the child’s birth; but not to step-parentsor grandparents. The mixed messages that this reform conveysare considered in relation to the latest evidence of publicopinion in Scotland about parental obligations and the extentto which they align with public opinion on these issues.     

Mixed Messages and Mixed Results: The EU's Promotion of Human Rights in Turkey

In spite of the fact that human rights appear, based on proclamations made by EU representatives, to be of critical importance in the EU's negotiations with Turkey, human rights reform has not been a primary target of pre‐accession aid to Turkey. Why is human rights reform not a central priority in the EU's allocation of aid in this case? First, Commission representatives and Members of the European Parliament disagree over the relative importance of the status of human rights in the pre‐accession reform process. Second, the format of the aid allocation process magnifies inconsistencies in the EU's approach to human rights reform.     

The Trade Union Movement and the European Union: Judgment Day

Abstract: The trade union movement faces a challenge to the legality of transnational collective action as violating economic freedoms in the EC Treaty. How are disparities in wages and working conditions among the Member States to be accommodated? Are national social models protected? Does the internal market allow for trade union collective action? How does EU law affect the balance of economic power in a transnational economy? What is the role of courts in resolving economic conflicts? This article analyses the responses to these questions as referred to the European Court of Justice by the English Court of Appeal and offers some conclusions. The purpose is to highlight the different positions adopted by the old Member States and the new accession Member States as regards the underlying substantive issues, and the options available to the Court of Justice in answering the questions posed.     

Abolishing Exequatur in the European Union: The European Enforcement Order

Netherlands International Law Review -     

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.     

The Constitution's Gift? A Deliberative Democratic Analysis of Constitution Making in the European Union1

Abstract: Our aim in this article is to consider whether the Union's deliberation over and decision‐making on constitutional norms, can contribute to render it more democratic. From a normative perspective, the way a constitution is forged has deep implications for its democratic legitimacy. In light of recent events, we consider how procedural changes in constitution‐making might contribute to rectify the Union's democratic deficit. To do so we first develop a thin model of constitution‐making based on the central tenets of deliberative democracy. Through this we seek to outline how a legitimate constitution‐making process will look from a deliberative democratic perspective. Second, we distil out some of the core characteristics of the Intergovernmental Conference (hereafter, IGC) model and assess this against the normative model, to establish the democratic quality of the IGC model. Third, we assess the current Laeken process by means of spelling out the central tenets of this mode of constitution‐making, and we assess it in relation to the normative standards of the deliberative model. In the fourth and final step, we consider what contribution constitution‐making might make to the handling of the EU's legitimacy deficit(s). We find that the Laeken process, in contrast to previous IGCs, was explicitly framed as a matter of constitution‐making. It carried further the democratization of constitution‐making, through its heightened degree of inclusivity and transparency. However, when considered in relation to the deliberative‐democratic model, it is clear that the Laeken Constitutional Treaty cannot be accorded the full dignity of a democratic constitution. The Constitutional Treaty can however lay the foundations for We the European people to speak.     

Violence against Women, Trafficking, and Migration in the European Union

Abstract:  This article examines the evolving EU policy against human trafficking, especially trafficking that targets migrant women for sexual exploitation. It maintains that even though action against trafficking is now firmly on the EU agenda, current policies excessively focus on repressive measures and lack attention to the broader setting in which the exploitation of migrants takes place. This means that current EU anti-trafficking policy remains ineffectual, and may in some cases even be counterproductive.     

Mapping Human Rights, Reading the European Union

Abstract: The EU's human rights policy has provoked increasing scholarly attention over the last decade. Yet rarely has it been subjected to rigorous analysis in the context of any integration theory. This article is an attempt to rectify the omission. By building on the approach of historical institutionalism, whilst at the same time recognising its analytical deficiencies, a method of reading the EU and interpreting its human rights policies is promoted. Specifically, the article contends that an analysis based on the textual nature of the EU and the configuration of this text through ‘institutional narrative’ will enable a better understanding of the institutional logic behind the construction of human rights policy. An agenda for research and analysis is thus suggested that might map the development of human rights in the EU and predict the compass of future policy direction more effectively.     

Decision rules,membership and political centralization in the European Union

The decision to enter the European Union is based on a comparison of the costs of staying out and going it alone, and the costs membership. The latter depend on the degree of preference heterogeneity between prospective members and the Union as well as the decision rules employed for “constitutional” decisions. The same calculus guides the decision, by member states, to shift policies up to the Union level, only now the decision rules refer to centrally assigned policies. Preference heterogeneity makes more inclusive rules optimal in either case while at the same time reducing the attractiveness of membership or the centralization of policies to the EU level, respectively. The analysis complements and extends both traditional fiscal federalism literature as well as the more recent political economics literature on federalism.