‘Caminante,no hay camino,se hace camino al andar’1: EU Citizenship,Direct Democracy and Treaty Ratification

Abstract: This article argues that obligatory, simultaneous, and simple Treaty ratification by referenda is the next step in the consolidation of the political core of European citizenship. In the first part, general remarks about the special nature of EU citizenship highlight the relevance of referenda on EU Treaties for EU citizenship. In the second part, the normative and empirical case in favour of direct democracy is put forward. It is followed by the assessment of direct democracy in European integration as we have known it so far. The practice is irreversible and gaining in momentum. But it is in need of substantial reform due to procedural dysfunctions and discriminatory consequences for the citizens. Section V relates this result to a legal analysis of EU citizenship. The suppression of the discriminatory consequences of the Treaty ratification procedure is necessary from a legal point of view, but it cannot be expected from the ‘judicial incrementalism’ that has characterised the development of EU citizenship regarding free movement and residence. In section VI , the conclusions of the previous sections are drawn into the final proposal of obligatory, simultaneous and simple Treaty reform by referenda in all Member States. At the end, five counter‐arguments to the proposal are discussed.     

《欧盟宪法条约》框架下的欧盟机构改革

2004年 10月,欧盟各成员国在罗马签署了《欧盟宪法条约》,这标志着欧盟政治一体化进入了一个崭新的阶段。该条约涉及欧盟政治与经济生活的方方面面,其中最令人关注的莫过于其对欧盟机构体系所进行的改革。《欧盟宪法条约》对欧盟机构体系改革规定了诸多内容,但改革中仍存不足。     

EU Constitutionalism in Flux: Is the Eurozone Crisis Precipitating Centralisation or Diffusion?

The Lisbon Treaty was supposed to mark the end of an almost‐decade‐long period of treaty reform. After the tumult of the failed Constitutional Treaty, the settlement it imposed struck a sustainable balance between the competing forces of centralisation and the diffusion that characterise European integration. Yet this constitutional settlement is now threatened by the Eurozone debt crisis and official responses to it, most notably the proposed fiscal compact. A prevalent view regards the crisis as an opportunity to complete the process of political and economic union that the Maastricht Treaty began. However, this article cautions against such a view, which would jettison the post‐Lisbon Treaty constitutional settlement in favour a peculiar kind of German‐led, intergovernmental centralisation. Whether the crisis response measures achieve their stated aims remains to be seen, but the integration project will be reconfigured in the process. Thus, EU constitutionalism is bound to remain in a state of flux.     

Non‐Legislative Rule Making after the Lisbon Treaty: Implementing the New System of Comitology and Delegated Acts

The reform of comitology and the introduction of the new instrument of delegated acts in the Lisbon Treaty were followed by protracted negotiations on the implementation of both articles. This article examines the resultant system that has emerged for both types of non‐legislative instruments. In the area of implementing acts, a new regulation sets out important changes: a reduction in the number of procedures, the extension of the scope to trade defence measures and the replacement of a referral to the Council with a new appeal committee. With respect to delegated acts, the search for an overarching framework resulted in a Common Understanding. Our analysis not only demonstrates the need to go beyond the treaty provisions in understanding the nature of non‐legislative rule making in the EU, but also emphasises the importance of informal procedures and non‐binding agreements in fully assessing the nature of non‐legislative rule making in this area.     

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.     

EU Equality Law: Three Recent Developments

This article analyses three recent developments within the EU that have an impact on EU equality legislation: the coming into force of the Treaty of Lisbon, the Proposal to extend the material scope of the provisions against discrimination on the ground of religion and belief, disability, age and sexual orientation beyond the area of employment, and the case law of the European Court of Justice regarding the EU Equality Directives of 2000. It will assess whether these three developments have led to improved protection against discrimination for people in the EU.     

Interests,Instruments and Institutional Preferences in the EU Comitology System: The 2006 Comitology Reform

This paper seeks to reveal the institutional interests of the Council of Ministers, the European Parliament and the Commission in the comitology system. This is done by an investigation of the 2006 comitology reform, which introduced the regulatory procedure with scrutiny. This reform was the result of developments in four areas: the Lamfalussy reform in the area of financial regulation; the controversial use of comitology in the area of GMOs, food safety and the environment; the failed Constitutional Treaty; and the amending of the 1999 comitology decision. The analysis shows that the reform was the result of a two‐dimensional constitutional struggle. The first dimension concerns the relative supervisory position of the two legislative actors, the Council and the European Parliament. The second dimension concerns the relationship between the legislative and the executive branch of the EU system. In theoretical terms, the analysis demonstrates an example of T.M. Moe's ‘politics of structural choice’. The paper ends by drawing lessons for the negotiations on the new comitology system following the Lisbon Treaty.     

From vocational training to education: the development of a no‐frontiers education policy for Europe?

This article focuses on developments towards an EU educational policy. Education was not included as one of the Community competencies in the Treaty of Rome. The first half of the article analyses the way that the European Court of Justice and the Commission of the European Communities between them managed to develop a series of substantial Community programmes out of Article 128 on vocational training. The second half of the article discusses educational developments in the community following the Treaty on European Union and the Treaty of Amsterdam. Whilst the legal competence of the community now includes education, the author's argument is that the inclusion of an educational competence will not result in further developments to mirror those in the years before the Treaty on European Union. If the 1980s were a decade of expansion, the medium‐term future is likely to be one of consolidation.     

Constitutionalism and Dissonances: Has Europe Paid Off Its Debt to Functionalism?

Abstract The negative outcomes of the French and Dutch referenda on the Constitutional Treaty have opened a period of profound constitutional disenchantment in relation to the EU. This impression seems confirmed by the recent Presidency Conclusions of the European Council which, although salvaging many important solutions contained in the Constitutional Treaty, explicitly sanction that ‘the constitutional concept . . . is abandoned’. In the light of this context, what role could the constitutional scholarship play? How to make sense of a polity in which the claims of constitutionalism as a form of power are politically unappealing though legally plausible? This article tries to respond to these questions by reaffirming functionalism as a valid analytical and normative perspective in facing the current constitutional reality of European integration. The analytical value associated with functionalism is evidenced by testing against the current context of the EU legal framework the accounts for EU constitutionalism which postulate functional equivalence between the EU and the Member States. The normative potential of functionalism, then, is discussed by arguing that there may be a value worth preserving in a degree of functional discrepancy between the EU and state constitutionalism and, notably, that the transformative and civilising dividend inherent in functionalism could still be exploited, at least in certain areas of EU policy making. Finally, the article suggests that the difficulties in accounting for EU constitutionalism in the light of state‐centred constitutional theory could be regarded as symptoms of European integration marking a moment in the theoretical evolution of constitutionalism.     

欧盟宪治:一种宪政法理学解读

<欧盟宪法条约>在2005年遭遇挫折,原因是多方面的,或许民主的因素不可忽视,当然这还涉及到人们刘欧盟性质、特征以及宪法条约文本的理解.欧盟立宪应当是一个社会互动的过程,包括民众在内的各种社会力量通过谈判达成共识,这样产生的宪法才是一部欧洲人民的宪法,而非仅仅是一部欧洲国家间的宪法,也唯有如此才可能构建新的宪政秩序.而宪政法理学为我们研究欧盟立宪问题提供了概念分析工具.     

Accountability for Delegated and Implementing Acts after the Treaty of Lisbon

The comitology regime, the committee‐based system developed as a mechanism for controlling the Commission's exercise of its powers to implement EU measures, has been subject to severe criticism on grounds of lack of accountability and transparency. The system has recently been fundamentally reformed by means of the new Implementing Acts Regulation, which came into force on 1 March 2011. This paper investigates whether the new rules are sufficient to remedy accountability deficits as regards implementing acts and concludes that as far as accountability to the Member States is concerned, their control powers have remained static. In addition, the new‐delegated acts procedure introduced by the Treaty of Lisbon grants the European Parliament (EP) more control powers, although the EP's gains are more modest than they might appear. This change has come at the cost of reduced control powers for Member States as well as lowered standards of transparency for the public.     

Common EU Minimum Standards for Enhancing Mutual Admissibility of Evidence Gathered in Criminal Matters

The EU, while developing instruments for evidence-gathering in criminal matters, is not making much of an effort to enhance its admissibility. This may lead to situations where, given the differences between legal systems across the EU, evidence collected in one member state will not be admissible in other member states. Due to the fact that the Lisbon Treaty opened the possibility of adopting minimum rules concerning, among other things, the mutual admissibility of evidence, this paper is dedicated to verifying whether it is feasible to achieve various common EU minimum standards for evidence-gathering.     

Women's Political Representation in the European Union

Feminist studies of the European Union seek to make sense of a field that has become enormously complex. Gender equality has been an issue in the EU since the inclusion of Article 119 on equal pay in the Treaty of Rome 1957 but has since widened to the recognition of equality between women and men as a fundamental principle of democracy for the whole EU. Gender equality is present both in gender-specific policies, such as women's participation in the labour market, sexual harassment and reconciliation of work and family, as well as informing the basic principles and functioning of the EU institutions wherever gender mainstreaming is implemented. Feminist explorations of the EU have tended to overlook one aspect of EU gender policies: women's political representation in the EU institutions. This article seeks to address this gap.     

The EU PNR framework decision proposal: Towards completion of the PNR processing scene in Europe

The entry into force of the Lisbon Treaty has suspended discussions over the release of a EU PNR processing system. Plans to introduce an intra-EU PNR processing system initiated since 2007, although strongly supported by the Commission and the Council, did not bear fruit before the ratification of the Lisbon Treaty and the, institutional, involvement of the Parliament. While discussions have been suspended since October 2009 and most probably a new draft proposal will be produced, it is perhaps useful to present in brief the proposal currently in place so as to highlight its shortcomings for European data protection and suggest ways individual protection may be strengthened in future drafts.     

欧盟区域刑事合作进程中的制度缺陷与对策——从《马斯特里赫特条约》到《里斯本条约》

从《马斯特里赫特条约》到《里斯本条约》,随着一体化进程的不断发展,欧盟逐步加强了对内部区域刑事合作的影响。但是,这种变化的＂代价＂则分别体现为：成员国全体一致的决策机制、＂框架决定＂立法中的＂民主赤字＂,以及成员国利用＂紧急刹车＂条款以规避关乎其切身利益的敏感立法的适用等。本文重点探讨这些制度缺陷,进而评析欧盟在相关问题上的对策。     

Sincere Cooperation,Respect for Democracy and EU Citizenship: Sufficient to Guarantee Scotland's Future in the European Union?

The position of an independent Scotland within the European Union (EU) has recently been a subject of considerable debate. The European Commission has argued that any newly independent state formed from the territory of an existing Member State would require an Accession Treaty. This article critiques that official position and distinguishes between a set of claims that could be made on behalf of an independent Scottish state, and a set of claims that could be made on behalf of the citizens of an independent Scottish state vis‐à‐vis the EU. It argues that the general principles of the EU Treaties ought to govern how Scotland is treated, and that a new Accession Treaty is not necessary. Furthermore, notwithstanding the jurisprudence of the European Court of Justice (ECJ) in the area of EU citizenship, we conclude that EU citizenship itself is not sufficient to guarantee or generate membership of the EU.     

The Eurogroup,power and accountability

This article considers the role of the Eurogroup in EU decision‐making, a topic that is under‐theorised, more especially given its importance in the overall EU schema. The Eurogroup's power has grown very considerably, largely because of the enhanced role that it has been accorded as a result of the financial crisis, with the result that its power no longer accords with the Treaty provisions that specify its function. The article sets out the Treaty foundations of the Eurogroup, examines its role in EU decision‐making, the rationale for its increased power, and the extent to which it is politically and legally accountable.     

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.     

Codifying Temporary Stability? The Role of Interinstitutional Agreements in Budgetary Politics

Abstract:  The article analyses the potential of Interinstitutional Agreements (IIAs) for resolving conflicts in the field of EU budgetary policy. In the 1970s and 1980s, annual budgetary procedures were characterised by intense interinstitutional battles, mainly between the Council and the European Parliament. IIAs concluded during this period tried to clarify pertinent Treaty provisions, but proved to be insufficient to resolve budgetary conflicts stemming from the more general problem of the uneven allocation of budgetary and legislative power between the two institutions involved. It was not before the fundamental budgetary reform in 1988—agreed upon by the European Council and implemented through an IIA along with the gradually increased role in legislative politics granted to European Parliament through several Treaty amendments—that budgetary stability—arrived. Hence, IIAs can be regarded as an improper means to solve profound constitutional problems. Yet, they can be considered as suitable tools to arrange technical details.