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.     

Still in Deficit: Rights,Regulation, and Democracy in the EU1

Abstract: Critics of the EU's democratic deficit standardly attribute the problem to either sociocultural reasons, principally the lack of a demos and public sphere, or institutional factors, notably the lack of electoral accountability because of the limited ability of the European Parliament to legislate and control the executive powers of the Commission and the Council of Ministers. Recently two groups of theorists have argued neither deficit need prove problematic. The first group adopts a rights‐based view of democracy and claims that a European consensus on rights, as represented by the Charter of Fundamental European Rights, can offer the basis of citizen allegiance to EU wide democracy, thereby overcoming the demos deficit. The second group adopts a public‐interest view of democracy and argues that so long as delegated authorities enact policies that are ‘for’ the people, then the absence of institutional forms that facilitate democracy ‘by’ the people are likewise unnecessary—indeed, in certain areas they may be positively harmful. This article argues that both views are normatively and empirically flawed. This is because there is no consensus on rights or the public interest apart from the majority view of a demos secured through parliamentary institutions. To the extent that these remain absent at the EU level, a democratic deficit continues to exist.     

Plurinational democracies in Europe: the quest for a profane constitutionalism

How should we understand the claims on the right to decide on status made within plurinational member states of the European Union by actors and institutions seeking to protect the self-government of sub-state nations or peoples, or at least their right to consent to their ascribed status? Peaceful solutions to conflicts involving contested claims over territory, citizenship, and national sovereignty (authority) can be found when a conceptual or cultural transformation takes place towards a pluralist and bottom-up or federal concept of plurinational democracy, recovering the centrality of self-determination as the self-assertion of a political community. Constitutional law based on the popular sovereignty of a majority nation within plurinational democracies often neglects the question of the definition of the demos as the prefigured constituency, and the existence of national or territorial minorities. If constitutions are interpreted as precluding any claim to self-determination by a constituency, and any debate about that claim, then an undemocratic, sacralized model of militant constitutionalism may emerge. That model is not so much about protecting democracy as it is about imposing a national mould, a pre-defined demos. This article revisits the claims of sovereignty made by national territorial minorities in Spain, against the background of the constitutional doctrine of the Spanish judiciary that precludes these constituencies from engaging in political debates on the right to decide. The resulting sacralization of the Constitution leads to a new version of the model of ‘militant democracy’, a militant nationalist constitutionalism, which can be countered by an alternative, secular, even profane approach to the Constitution.     

Relatively Absolute? The Undermining of Article 3 ECHR in Ahmad v UK

The recent decision of the European Court of Human Rights in Ahmad v UK dangerously undermines the well‐established case law of the Court on counter‐terrorism and non‐refoulement towards torture, inhuman and degrading treatment or punishment. Although ostensibly rejecting the ‘relativist’ approach to Article 3 ECHR adopted by the House of Lords in Wellington v Secretary of State for the Home Department, the Court appeared to accept that what is a breach of Article 3 in a domestic context may not be a breach in an extradition or expulsion context. This statement is difficult to reconcile with the jurisprudence constante of the Court in the last fifteen years, according to which Article 3 ECHR is an absolute right in all its applications, including non‐refoulement, regardless of who the potential victim of torture, inhuman or degrading treatment is, what she may have done, or where the treatment at issue would occur.     

The Paradox of Constituent Power.The Ambiguous Self‐Constitution of the European Union

Abstract. The French and Dutch referenda on the adoption of a European Constitutional Treaty highlight a remarkable ambiguity in the self‐constitution of a polity, which can be viewed as both constitution by and of a collective self. This ambiguity is a fundamental feature of polities in general, and the European Union in particular. Rather than suppressing this ambiguity, democracy—and a fortiori a European democracy worth its name—institutionalises it as the guiding principle of political action. As will transpire, the conceptual and normative problems raised by political self‐constitution are linked to self‐attribution, i.e., the conditions under which a collective ascribes legislation to itself.     

Social Insurance Monopolies in Community Competition Law and the Italian Constitution: 'Practical' Convergences and 'Theoretical' Conflicts

An Italian judge, following earlier suggestions of the national antitrust Authority, has referred to the Court of Justice for a preliminary ruling under Article 234 EC Treaty two questions on the interpretation of Articles 81 and 86 of the EC Treaty. With those questions, raised in an action brought by a self‐employee against the Istituto Nazionale per l'Assicurazione contro gli Infortuni sul Lavoro (INAIL) concerning the actor's refusal to pay for social insurance contributions, the Tribunale di Vicenza has in summary asked the Court of Justice whether the public entity concerned, managing a general scheme for the social insurance of accidents at work and professional diseases, can be qualified as an enterprise under Article 81 EC Treaty and, if so, whether its dominant position can be considered in contrast with EC competition rules. This article takes this preliminary reference as a starting point to consider in more general terms the complex constitutional issues raised by what Ge´rard Lyon‐Caen has evocatively called the progressive ‘infiltration’ of EC competition rules into the national systems of labour and social security law. The analysis is particularly focused on the significant risks of ‘constitutional collision’, between the ‘solidaristic’ principles enshrined in the Italian constitution and the fundamental market freedoms protected by the EC competition rules, which are implied by the questions raised in the preliminary reference. It considers first the evolution of ECJ case law—from Poucet and Pistre to Albany International BV—about the limits Member States have in granting exclusive rights to social security institutions under EC competition rules. It then considers specularly, from the Italian constitutional law perspective, the most recent case law of the Italian Constitutional Court on the same issues. The ‘contextual’ reading of the ECJ's and the Italian Constitutional Court's case law with specific regard to the case referred to by the Tribunale di Vicenza leads to the conclusion that there will probably be a ‘practical convergence’in casu between the ‘European’ and the ‘national’ approach. Following the arguments put forward by the Court of Justice in Albany, the INAIL should not be considered as an enterprise, in line also with a recent decision of the Italian Constitutional Court. And even when it was to be qualified as an enterprise, the INAIL should in any case be able to escape the ‘accuse’ of abuse of dominant position and be allowed to retain its exclusive rights, pursuant to Article 86 of the EC Treaty. This ‘practical convergence’in casu does not, however, remove the latent ‘theoretical conflict’ between the two approaches and the risk of ‘constitutional collision’ that it implies. A risk of a ‘conflict’ of that kind could be obviously detrimental for the European integration process. The Italian Constitutional Court claims for herself the control over the fundamental principles of the national constitutional order, assigning them the role of ‘counter‐limits’ to the supremacy of European law and to European integration. At the same time, and more generally, the pervasive spill over of the EC market and competition law virtually into every area of national regulation runs the risk of undermining the social and democratic values enshrined in the national labour law traditions without compensating the potential de‐regulatory effects through measures of positive integration at the supranational level. This also may contribute to undermine and threaten, in the long run, the (already weak) democratic legitimacy of the European integration process. The search for a more suitable and less elusive and unilateral balance between social rights and economic freedoms at the supranational level should therefore become one of the most relevant tasks of what Joseph Weiler has called the ‘European neo‐constitutionalism’. In this perspective, the article, always looking at the specific questions referred to the Court of Justice by the Tribunale di Vicenza, deals with the issue of the ‘rebalance’ between social rights and economic and market freedoms along three distinct but connected lines of reasoning. The first has to do with the need of a more open and respectful dialogue between the ECJ and the national constitutional courts. The second is linked to the ongoing discussion about the ‘constitutionalization’ of the fundamental social rights at the EC level. The third finally considers the same issues from the specific point of view of the division of competences between the European Community and the Member States in the area of social (protection) policies.     

To have a voice in the matter: A comparative study of the Swedish and Danish European committees

This article deals with the issue of how the national parliaments might be strengthened in order to decrease the democratic deficit within the EU. It examines the parliamentary European committees in the Danish and Swedish Parliaments and concludes that their potential to influence and control their respective governments’ EU policies mainly depends on the Government's parliamentary base and opportunities for legislative influence open to parliamentary oppositions. Moreover, it examines various organisational aspects of the European committees, including distribution of tasks and internal co‐ordination within the Parliament, at what stage in the decision‐making process the European Committee and the Parliament are involved and information management. With some conspicuous exceptions, Denmark and Sweden have chosen the same organisational arrangements for dealing with EU affairs both in the Parliament as a whole and, specifically, in the European committees. The principal conclusion is that the European committees in Sweden and Denmark are effective means for giving the national parliaments a voice in EU matters, but the article also addresses some reforms to strengthen their positions.     

The Value of ‘Integration’ in European Law—The Implications of the Förster Case on Legal Assessment of Integration Conditions for Third‐Country Nationals

The European Court of Justice's Förster judgment can lead to a reduction of legal uncertainty caused by integration requirements for third‐country nationals. The judgment has created a strong ‘assumption of integration’ after five years of legal residence because it equalised integration requirements for European students to access the welfare system of host Member States with a requirement of five years legal residence. Almost all pieces of European legal migration law also contain five‐year residence requirements after which the status of third‐country nationals improves. However, these improvements are mostly subjected to the fulfilment of additional integration requirements. To keep coherence with European law, courts will not be able to disregard the Förster‘assumption of integration’ when assessing the legality of integration conditions for third‐country nationals put in place in addition to residence requirements.     

The Territorial Scope of Employment Legislation and Choice of Law

Traditionally, the determination of the territorial scope of the statutory rights conferred by employment legislation forming part of English law has been regarded as an issue entirely disconnected from the choice‐of‐law process. Indeed, this view formed the basis of the key decision addressing the problem of territoriality, Lawson v Serco, decided by the House of Lords in 2006. After presenting the current state of the law with regard to the territorial scope of employment legislation, this article takes a critical look at Lawson v Serco. It is argued that the ‘European’ choice‐of‐law rules must have a greater importance for determining the territorial scope of employment legislation and, consequently, that the approach pursued in Lawson v Serco is no longer correct, if it ever was, and should not be followed in the future.     

All Bark and No Bite: Notes on the Federal Constitutional Court's 'Banana Decision'

The Federal Constitutional Court's banana decision of 7 June 2000 continues the complex theme of national fundamental‐rights control over Community law. Whereas in the ‘Solange II’ decision (BVerfGE 73, 339) the Federal Constitutional Court had lowered its standard of review to the general guarantee of the constitutionally mandatorily required minimum, the Maastricht judgment (BVerfGE 89, 155) had raised doubts as to the continued validity of this case law. In the banana decision, which was based on the submission of the EC banana market regulation by the Frankfurt‐am‐Main administrative court for constitutional review, the Federal Constitutional Court has now confirmed the ‘Solange II’decision and restrictively specified the admissibility conditions for constitutional review of Community law as follows. Constitutional complaints and judicial applications for review of European legislation alleging fundamental‐rights infringements are inadmissible unless they show that the development of European law including Court of Justice case law has since the ‘Solange II’ decision generally fallen below the mandatorily required fundamental‐rights standard of the Basic Law in a given field. This would require a comprehensive comparison of European and national fundamental‐rights protection. This paper criticises this formula as being logically problematic and scarcely compatible with the Basic Law. Starting from the position that national constitutional courts active even in European matters should be among the essential vertical ‘checks and balances’ in the European multi‐level system, a practical alternative to the Federal Constitutional Court's retreat is developed. This involves at the first stage a submission by the Federal Constitutional Court to the Court of Justice, something that in the banana case might have taken up questions on the method of fundamental‐rights review and the internal Community effect of WTO dispute settlement decisions. Should national constitutional identity not be upheld even by this, then at a second stage, as ultima ratio taking recourse to general international law, the call is made for the decision of constitutional conflicts by an independent mediating body.     

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.     

Beyond the European void? Reflections on Peter Mair's legacy

Peter Mair was one of the world's leading scholars of party politics. Though he wrote at some length about the European Union, there has been no systematic exploration of the implications of his comparative work on political parties for European integration. His writings on the EU have generally been studied in isolation from his wider oeuvre, with the result that we have missed the important analytical and logical connections between Mair's work on parties and his writings on the EU. This article argues that Mair's path‐breaking middle‐range theoretical and empirical work on the decline of party democracy can form the basis of a radical reappraisal of the project of ‘ever closer union’. The article studies Mair's arguments against the backdrop of more recent empirical evidence and evaluates the normative implications of his work for the future of the European project.     

Regulating Science and Technology: The Case of the UK Biotechnology Industry*

This paper considers the current performance and future prospects of the UK biotech industry, particularly the biomedical sector. The central argument is that the performance of the UK biotech industry cannot be understood in isolation from the European system of regulation and, increasingly, the international regulatory environment, and from what is happening elsewhere in the regulation of science – particularly in the U.S. To develop this argument, it adopts as its conceptual framework Kim and von Tunzelmann's network alignment approach following Radosevic. It explores the link between regulatory policies and the biotechnology production system – networks between academic research, biotech firms, and large pharmaceutical companies.     

A Geometric Morphometric Approach to Sex Determination of the Human Adult Os Coxa

Abstract: Sex determination of the human skeleton is best assessed from the os coxa. The present study explored the possibility of using three‐dimensional landmark coordinate data collected from various landmarks located over the entire bone to determine whether there were significant sex differences local to the landmarks. Thirty‐six landmarks were digitized on 200 African American and European American male and female adult human os coxae. MANCOVA results show that sex and size have a significant effect on shape for both European Americans (Sex, F = 17.50, d.f. = 36, 63, p > F = 0.0001; Size, F = 2.56, d.f. = 36, 63, p > F = 0.0022) and African Americans (Sex, F = 21.18, d.f. = 36, 63, p > F = 0.0001; Size, F = 2.59, d.f. = 36, 63, p > F = 0.0005). The discriminant analysis shows that sexing accuracy for European Americans is 98% for both males and females, 98% for African American females, and 100% for African American males.     

The asymmetries of pouvoir constituant mixte

This invited Symposium contribution discusses Jürgen Habermas's celebrated and influential theory of pouvoir constituant mixte. In that account, the EU is constituted by a double authority: that of citizens of nation‐states and that of (the same) citizens as subjects of the future EU. I argue that Habermas's theory is convincing only if the two constitution‐building subjects—citizens of the already constituted nation‐states and citizens of the to‐be‐constituted European Union—are positioned symmetrically in relation to each other. I argue that Habermas's construction is, in fact, asymmetrical. I identify three asymmetries: of expectations, of function and of origins. I argue that these asymmetries place the role of citizens as members of nation‐states in such an advantageous position that it would be irrational for citizens in their other capacity, as citizens of the to‐be‐constituted European Union, to participate in the constituent authority in the terms proposed and defended by Habermas.     

The policy origins of the European economic constitution

This article traces the origins of the European economic constitution in the debate on Article 30 of the EC Treaty (general rule on the free movement of goods) between 1966 and 1969, which resulted in Directive 70/50. In this, the first archive‐based analysis of the policy origins of the Court's Dassonville (1974) decision, the article demonstrates that there was a strong continuity in the investment by a number of key actors in focusing on Article 30 to create the single market from the mid‐1960s. These civil servants and lawyers provided the backbone for the Commission's transformation of the Cassis de Dijon judgment (1979) into a powerful tool, driving back the need for legislative harmonisation and making it a cornerstone of the Single European Act of 1986. The article therefore analyses one of the key moments in the transformation of European law.     

Equal Civil Partnerships,Discrimination and the Indulgence of Time: R (on the application of Steinfeld and Keidan) v Secretary of State for International Development

In R (on the application of Steinfeld and Keidan) v Secretary of State for International Development the Supreme Court unanimously declared that the ban on different‐sex civil partnerships was incompatible with Articles 8 and 14 of the European Convention on Human Rights. In a strikingly robust and, at times, acerbic manner, the Court systematically dismantled the Secretary of State's request for tolerance of a discriminatory and unsustainable legal position. The decision represents a clear victory for those campaigning for reform and the issuing of a declaration of incompatibility by the Court is likely to have influenced the later announcement by Prime Minister Theresa May in October 2018 that different‐sex civil partnerships will ultimately be introduced in England and Wales.     

Adoption,Homosexuality and the European Convention on Human Rights: Gas and Dubois v France

On 15 March 2012 the European Court of Human Rights (the Court) issued its first judgment addressing the differential treatment of same‐sex and opposite‐sex couples in respect of the adoption of a child. 1 The Court held that excluding same‐sex couples in civil partnerships, who have no legal right to marry, from adoption provisions available to married opposite‐sex couples does not violate rights guaranteed by the European Convention on Human Rights (the Convention). I argue that the Court's reasoning in Gas and Dubois v France is unpersuasive and unsustainable in light of its wider case law.     

Symbolism of the Spirit of the Laws: A Genealogical Excursus to Legal and Political Semiotics

The spirit of the laws is a symbol reflecting the ontological status and transcendental ideals of the system of positive law. The article analyses historical links between the romantic philosophy of the spirit of the nation (Volksgeist), which subsumed Montesquieu’s general spirit of the laws under the concept of ethnic culture, and recent politics of cultural and ethnic identity. Although criticising attempts at legalising ethnic collective identities, the article does not simply highlight the virtues of demos and the superiority of civic culture against the vices of ethnos and the regressive nature of ethnic politics of identity. Instead, the author argues that the civil democratic concept of political identity is part of the more general process of social differentiation: unlike the pre-political ethnic concept of identity, it can be converted to generalised democratic procedures and thus dismantle the totalitarian claims of cultural identity politics.

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Delegated and Implementing Rule Making: Proceduralisation and Constitutional Design

The reform of non‐legislative acts introduced by Articles 290 and 291 of the Treaty on the Functioning of the European Union was guided by concerns regarding the democratic legitimacy of (lato sensu) implementing acts of the Union. However, it has ignored the centrality of transparency in the Union's democracy and the role of participation as a complementary source of democracy. This article argues that the procedures leading to the adoption of delegated and implementing acts are subject to the treaties' provisions on transparency and participation, and should be shaped by them. It analyses the constitutional choices underlying Articles 290 and 291, with a view to assessing whether and to what extent the material, organic and functional profiles of delegated and implementing acts condition procedural rules on transparency and participation to be followed in their adoption.