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.     

Self‐Determination in the Constitutional Future of the EU

This article analyses three prominent proposals for the functional and political transformation of the EU from a constitutional perspective. It argues that existing EU reform proposals, to varying degrees, entrench rather than reverse the challenges to individual and political self‐determination brought about by the EU's response to its Euro crisis. As the article will conclude, challenging ‘authoritarian liberalism' in an EU context may require the development of a constitutional structure for the Union able to contest, rather than set in stone, the EU's existing economic and political goals.     

EU–China Competition Dialogue: A New Step in the Internationalisation of EU Competition Law?

EU has been the protagonist in promoting the internationalization of competition laws based on EU competition law norms. The development of China's Antimonopoly Law shows that EU has succeeded so far in establishing itself as the main reference point for China's competition regulation. The success can be mainly attributed to the EU‐China Competition Dialogue (Dialogue), a new initiative set up by EU and China in 2004. The paper reviews the internationalization of EU competition law and its characteristics. It then examines the Dialogue and how EU exported its competition law norms to one of the latest AML secondary legislations on Antimonopoly Pricing. It argues that the Dialogue's informal nature, EU's routinized technical assistance to Chinese competition authorities and its China‐oriented strategy in communication have been highly important in ensuring that the EU Competition Law becomes the main reference point for the AML. However, the paper argues that it is for the same reasons that EU faces weakness in controlling the reception of EU competition law norms by China. Based on this, the paper further illustrates that EU's understanding of competition law internationalization as reflected under the Dialogue has not undergone fundamental changes.     

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.     

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 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.     

A Mediator on the World Stage?—How the EU's Commitment in Foreign Affairs is Portrayed by New Zealand and Australian Media

Abstract: ‘European identity’ is as much a contested concept as is the role of the European Union in foreign affairs. This article combines the two concepts and introduces a third variable, ‘the Other’, in order to address the following questions: How do non‐Europeans perceive the EU on the world stage? Is a tentative identity as a mediator in foreign affairs conveyed in the EU's conduct of foreign policy? Analysing 10 newspapers, 4 television bulletins, and 830 public surveys from Australia and New Zealand in the first half of 2004, this article argues that the EU's efforts to further democracy and peace are often marginalised in Australian and New Zealand perceptions. Nevertheless, subtle traces of perceptions of the EU as a potent global actor promoting human rights and environmental sustainability and challenging unilateral US policy courses were detected.     

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.     

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.     

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.     

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.     

In courts we trust,or should we? Judicial independence as the precondition for the effectiveness of EU law

The present article argues that the EU possesses an arsenal of tools to address dissuasively rule of law problems in the Member States. This shows the double nature of the EU's separation of powers problem. Whereas some states suffer from rule of law decline and a lack of limitation of governmental powers, there is a risk of the crumbling of separation of powers at the EU level, too, where institutions fail to adequately address rule of law violations. Against the EU institutions' lack of forceful action towards rule of law backsliding, domestic courts try to protect judicial independence increasingly via preliminary references. Also, they attempt preventing the proliferation of the consequences of rule of law decline via judicial cooperation in the mutual trust/mutual recognition domain. This article explores to what extent preliminary rulings can make up for the failure to use adequate EU tools of rule of law enforcement.     

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.     

The contribution of EU public procurement law to corporate social responsibility

This article argues that while EU public procurement law increasingly allows public authorities to take environmental and social considerations into account in public purchasing decisions, it does impose limits on the possibility for authorities to incentivise corporate social responsibility (CSR) policies through public procurement. These specific limits are the result of the EU legislator's choice to endorse the Court of Justice's ordoliberal approach to public procurement law. This approach is in tension with EU CSR policy, and more broadly, the EU's non‐economic goals such as environmental protection, the fight against climate change, human rights and social policy. It reflects a normative preference for the right of undertakings to compete for a tender over the freedom of government authorities to choose a supplier on public interest grounds even if these choices are based exclusively on a legitimate public interest and should be reconsidered.     

The EU and Issues of Human Rights Protection: Same Solutions to More Acute Problems?

Academic literature repeatedly calls for the EU's accession to the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (hereinafter Convention 1 ). Similarly, the Lisbon Treaty provides that the EU must accede to the Convention. [Correction made here after initial online publication.] This might seem odd as the European Court of Justice (hereinafter ECJ 1 ) has over the years developed abundant case‐law on human rights protection in the EU, and the EU has not so long ago adopted a, albeit non‐binding, catalogue of human rights (the Charter of Fundamental Rights of the EU (hereinafter Charter)). But after all these years, cases, and Treaty amendments, the EU is in fact going back to the ECJ's 1996 landmark opinion which recommended the EU's formal accession to the Convention, 1 already proposed in 1979 by the Commission. 1 One reason for this might be that, in the meantime, human rights issues have multiplied in the application of EU law, especially in areas such as the Second and Third Pillars where—at least initially—fewer human rights protection guarantees were foreseen.     

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.     

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.     

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.     

Regulating Hedge Funds for Systemic Stability: The EU's Approach

This article offers a critical appraisal of the way in which the EU regulates hedge funds (HFs) in the Alternative Investment Fund Managers Directive (AIFM Directive) and its proposal to regulate the repo markets from which they obtain much of their leverage. It argues that the EU's scheme is not a radical departure from the pre‐crisis market liberalist approach and that its reliance on discretionary intervention is misplaced because it does not take account of the fundamental uncertainty that characterises financial markets. The article outlines the operations of HFs and explores the extent to which they pose a threat to systemic stability, paying particular attention to the use of leverage by HFs. It explores the background to the AIFM Directive and the post‐crisis international consensus on financial regulation and then evaluates the complex division of responsibility for regulating HFs between the national and supranational authorities. Finally, it discusses how HFs should be regulated. Drawing on the work of Minsky, it argues that a leverage cap would have been more likely to prevent HFs contributing to systemic instability than the scheme adopted. Nor are the proposed rules on mandatory ‘haircuts’ in repo markets or the AIFM Directive's rules on remuneration likely to prevent HFs contributing to systemic instability.     

Explaining China's approach to investor-state dispute settlement reform: A contextual perspective

China's approach to ISDS reform is widely perceived as undecided and ambiguous. This paper provides the first detailed analysis of China's submission to the UNITRAL Working Group III and situates China's approach in the context of global dialogue of ISDS reform and competing reform proposals. The paper shows that China's open, flexible, and evolving approach to ISDS reform could be better understood by a contextual evaluation of the pertinent factors which have contributed to its formation. Moreover, this paper explains why China did not sign up to the EU's investment court system (ICS) proposal in the EU-China Comprehensive Agreement on Investment (CAI). Lastly, the paper argues that China should reconsider its attitude towards the ICS in the CAI context and that the EU's recent suggestion that the envisaged multilateral investment court may adopt an ‘open architecture’ is likely to enhance its appeal to China.