Roland Vaubel, Constitutional courts as promoters of political centralization: lessons for the European Court of Justice, European Journal of Law and Economics, Dec 2009, Vol. 28, Iss. 3; pg. 203 [*]
Abstract (Summary)
A cross-section analysis covering up to 42 countries and including the usual control variables shows that central government outlays as a share of general government outlays are significantly larger if the judges of the constitutional or supreme court are independent of the federal government and parliament and if the barriers to constitutional amendment are high. This evidence is consistent with the view that constitutional judges have a vested interest in centralization or that there is self-selection or both. These insights are used to draw lessons for the reform of the European Court of Justice. Self-selection should be reduced by requiring judicial experience–ideally with the highest national courts. The vested interest in centralization could be overcome by adding a subsidiarity court.
de data aceasta la francezi.
Asadar, din acest raport se poate observa cu usurinta cat de interesanta va fi pentru Romania presedintia UE.
Yasuhiro Shigeta, The ECJ’s ‘Hard’ Control over Compliance with International Environmental Law: Its Procedural and Substantive Aspects, International Community Law Review, Volume 11, Number 3, September 2009, pp. 251-305.
This study shows that the ECJ, while not directly applying and interpreting environmental treaties, exercises procedurally and substantively ‘hard’ control over compliance with EC legislation implementing those treaties, in the fields of nature conservation and hazardous waste management, on certain conditions and within certain limits. This study also shows that the ECJ’s acknowledgment of its exclusive jurisdiction on the marine environment as seen in the 2006 MOX Plant case has contradictory effect on its substantively ‘hard’ control: such acknowledgment, although being a plus factor where there is no Community measure, becomes a minus factor since it in practice means that there already exist Community measures. Although the above observations are also instructive to other international judiciaries’ study, structural and situational differences should be considered.
Chris Koedooder, Niki de Lang, Anti-terrorist Blacklisting in the European Union: The Influence of National Procedures on the Judgments of the Court of First Instance of the European Communities, Legal Issues of Economic Integration, vol. 36, 4/2009, pp. 313–337
Summary:
The most prominent example of anti-terrorism measures is undoubtedly the freezing of funds of individuals or entities suspected of committing or supporting terrorist acts. The European Union (EU) implements United Nations (UN) Security Council Resolutions and maintains its own anti-terrorist blacklist. This article looks at fund-freezing decisions taken on the basis of both the UN sanctions regime and the autonomous EU sanctions regime and the resulting jurisprudence of the Community courts. Discussion of recent judgments of the Court of First Instance (CFI) in the Sison and OMPI cases, both concerning EU level sanctions, will illustrate that the underlying national procedures can have considerable influence on the Court’s judgments in this field. Central to the discussion will be the relevance of national procedures and judgments on the validity of blacklisting decisions and their review.
Steven Greer, Andrew Williams, Human Rights in the Council of Europe and the EU: Towards ‘Individual’, ‘Constitutional’ or ‘Institutional’ Justice?, European Law Journal, Oxford: Jul 2009. Vol. 15, Iss. 4;
The European Convention on Human Rights, promulgated by the Council of Europe in 1950, is widely regarded as the world’s most successful experiment in the trans-national judicial protection of human rights. The EU’s much more recent judicial and political interest in human rights has also been widely welcomed. Yet, while the crisis currently afflicting the Convention system has not gone unnoticed, the same cannot equally be said of the difficulties presented by the increasing interpenetration of the two systems. Amongst the few who have shown some interest in these problems, the dominant view is that good will and common sense will provide adequate solutions. We disagree. Instead, we detect a gathering crisis which, unless properly analysed and effectively tackled, will only deepen as the EU’s interest in human rights develops further. In our view, the problem is essentially conceptual and that, ultimately, it boils down to a much-neglected question, simple to state but not so easy to answer: is the trans-national protection of human rights in Europe a matter of ‘individual’, ‘constitutional’ or ‘institutional’ justice?
Bogdan Manescu - sef al Departamentului pentru Afaceri Europene (DAE) din 09.10.2009-
Legea nr. 298/2008 din 18 noiembrie 2008 privind reţinerea datelor generate sau prelucrate de furnizorii de servicii de comunicaţii electronice destinate publicului sau de reţele publice de comunicaţii, precum şi pentru modificarea Legii nr. 506/2004 privind prelucrarea datelor cu caracter personal şi protecţia vieţii private în sectorul comunicaţiilor electronice, Monitorul Oficial nr. 780 din 21 noiembrie 2008
Directiva 2006/24/CE a Parlamentului European si a Consiliului din 15 martie 2006 privind păstrarea datelor generate sau prelucrate în legătură cu furnizarea serviciilor de comunicatii electronice accesibile publicului sau de retele de comunicatii publice si de modificare a Directivei 2002/58/CE, JO, editie speciala in limba româna, capitol 13 volum 53 p. 51 – 57 [*]
Camera Deputatilor – tabel de concordanta [dispozitiile directivei, respectiv ale legii]
Adrian Vasilache, Legea privind stocarea datelor convorbirilor telefonice si pe internet este neconstitutionala,8.10.2009, Hotnews.ro
***, MCSI analizează decizia Curţii Constituţionale privind Legea reţinerii datelor, 09.10.2009 [*] Despre “infringement“-ul [care in aceasta situatie ne-ar paste], am scris chiar si pe acest blog (aici sau aici). Si anume, sa nu pasaritzi.
Pentru unele argumente privind drepturile fundamentale: CJCE, hotărârea din 10 februarie 2009, C-301/06, Irlanda/Comisia. [*]
Ewoud H. Hondius, Fifteen Years of European Private Law – at the Occasion of the 15th Birthday of the Trento/Torino Common Core of European Private Law Project (September, 22 2009). Opinio Juris in Comparatione Vol. 2/2009, Paper No. 5. Available at SSRN.
Tony Barber, Dark clouds gather for EU on Lisbon treaty, 17.09. 2009, [*]
But the Irish referendum is not the only cloud on the EU’s horizon. For even if Ireland votes Yes, there remain considerable doubts over when Václav Klaus, the Czech president, will append his signature to the Lisbon treaty, allowing it to take force. Fears are growing in Brussels that Klaus intends to find an excuse to delay signing as long as possible – certainly, until some time in the first half of next year.
Andrew Gimson, Germans reel at prospect of ’submission to alien powers’, The Daily Telegraph, 18.09.2009 {aici}
Extracts
In a tone of barely suppressed fury, the court enumerates the encroachments Europe has made on national judicial systems and rules that this process must go no further. According to these judges, Germany’s Basic Law, or constitution, promotes peaceful co-operation within the EU and the United Nations, but this is not “tantamount to submission to alien powers”. (…)
The German judges add that measures of European integration “must, in principle, be revocable”, and declare that they themselves have the right to safeguard “the inviolable core content” of the German constitution: a process that “can result in Community law or Union law being declared inapplicable in Germany”. It is an extraordinarily high-handed and intransigent judgment. (…)
According to Prof Stürmer, who from 1981 was an adviser to Helmut Kohl on European policy, the judgment means that for the next 10 or 20 years, no German government “can really move forward on Europe”: there cannot be a successor treaty to Lisbon. He reproaches Angela Merkel, the Chancellor, for having failed to begin at once “an open, principled conflict” with the court. But Mrs Merkel is astute enough to realise that there are no votes to be won by taking on the Constitutional Court, which enjoys greater respect than the political class.
Hotararea Curtii Constitutionale Federale din Germania aici
L’Institut européen de Roumanie, l’Ambassade de France en Roumanie et la Faculté de droit de l’Université de Bucarest ont l’honneur de vous inviter à participer lundi 28 septembre 2009 à 11h00 à la Faculté de droit de l’Université de Bucarest (Bd. Kogalnicineanu nr. 36-46, 050107 Bucarest, salle de conférence Stoicescu) à la conférence :
« Droit national et droit européen »
donnée par
M. Bernard STIRN, Président de la section du contentieux du Conseil d’Etat
La conférence sera ouverte par M. Henri PAUL, Ambassadeur de France en Roumanie et modérée par M. Flavius BAIAS, Doyen de la Faculté de droit.
Cet évènement sera la dix-huitième conférence du cycle “Roumanie – France : ensemble en Europe” co-organisé par l’Institut européen de Roumanie (IER) et l’Ambassade de France en Roumanie depuis 2007 afin de donner une perspective franco-roumaine sur l’intégration européenne de la Roumanie.
* * *
M. Bernard STIRN, 57 ans, juriste et ancien élève de l’Ecole nationale d’administration, a intégré le Conseil d’Etat en 1976. Il en a été Secrétaire général de 1991 à 1995 et en préside la section du contentieux, plus haute instance de la juridiction administrative française, depuis 2006. Son parcours professionnel l’a également amené à occuper différentes responsabilités administratives au sein du Ministère de l’industrie et de la recherche et du Ministère de l’éducation nationale. Il est également (depuis 2001) Président de l’Opéra national de Paris.
Professeur associé auprès de l’Institut d’études politiques de Paris et de l’Ecole nationale d’administration, Bernard STIRN est l’auteur de plusieurs ouvrages de référence en droit administratif ainsi que sur les droits et libertés civiles. Son expérience de la haute administration et du système juridictionnel français en fait un expert reconnu de l’articulation entre droit national et droit européen et sa pratique professionnelle a contribué à une meilleure intégration des normes communautaires dans la pratique administrative et la jurisprudence en France.
* * *
L’enregistrement des participants aura lieu entre 10h30 et 11h00. La conférence sera donnée en français avec traduction simultanée en roumain. Nous serions très heureux de votre participation et vous prions de la confirmer auprès de l’IER par courriel (florentina.costache@ier.ro), fax (021 / 314 26 66) ou téléphone (021 / 314 26 96 ou 97), jusqu’au jeudi 24 septembre 2009.
Urmare a cauzei Feryn, dar fara legatura cu ea, o stire interesanta, tot din Belgia. Sau despre reprimarea faşismelor de dormitor (ma rog, din camera de zi). Sau, cu alte cuvinte, tot despre “micuţi si oamenii legii” (sic!). Si, vorba cantecului: “O ultimaaaa tigaraaaa, uitataaaa intr-un colt peeee etajeeeeraaaaa”.
“Le Centre pour l’égalité des chances et la lutte contre le racisme a introduit une plainte à l’encontre d’une famille d’accueil de la région anversoise, suite à la diffusion du programme TERZAKE ce lundi 7 septembre sur la VRT.
Dans ce reportage, un journaliste de la VRT rend visite ‘undercover’ à une famille d’accueil anversoise agréée par l’organisme flamand de l’enfance, Kind&Gezin, pour se renseigner sur les modalités de prise en charge de son enfant.
Le reportage met clairement en évidence les tendances racistes et xénophobes du couple d’accueil, qui arbore dans sa salle de séjour, aux yeux de tous, un portrait d’Adolf Hitler, un drapeau interdit du VMO (Vlaamse Militanten Orde) et une collection d’objets à caractère raciste.
La mère d’accueil soutient explicitement que les théories du régime nazi devraient être appliquées à la société actuelle, visant par là les personnes d’origines turque et marocaine.
On ne peut exclure que ces idées racistes soient également propagées auprès des autres parents, visiteurs, voire auprès des enfants accueillis par le couple.
Le Centre estime qu’il y a à la fois infraction aux articles 20 et 21 de la loi du 30 juillet 1981 tendant à réprimer certains actes inspirés par le racisme ou la xénophobie modifiée par la loi du 10 mai 2007, et à l’article 1 de la loi contre le négationnisme du 23 mars 1995.
De pe site-ul centrului de lupta impotriva rasismelor, xenofobiilor & altor tare post-moderne din Belgia. Daca, in prezent, ii culeg pe faşişti din dormitor, banuim ca urmatoarea etapa de combatere a faşismelor va cobora spre interiorul persoanei umane.
E oficial! (sic!; precum incepe astazi redactarea multor stiri de presa, nasha?): un grup de senatori cehi sesizatara Curtea constitutionala din aceeasi republica cu privire la (sau, sa ne exprimam romglez – “pe“)constitutionalitatea numitului tratat cu Constitutia. Precum stiti, instanta s-a pronuntat anterior asupra aceluiasi tratat, insa la un mod general. Precum intelegem, acum e randul unui control constitutional mai amanuntit.
Asadar, stirea:
“Prague – Seventeen Czech senators, mainly from the right-wing Civic Democrats (ODS), today filed a complaint with the Constitutional Court against the amendments “on special mandate” related to the Lisbon treaty, ODS senator Jiri Oberfalzer has told CTK.
The special mandate prevents the Czech government from approving transfer of powers to the EU without the parliament’s agreement.
Apart from ODS senators, the complaint was signed by unaffiliated senator Tomas Toepfer and Liana Janackova, chairwoman for the Party of Free Citizens.
The senators also plan to ask the Constitutional Court again to assess the the Lisbon treaty to reform the EU institutions as such.
The senators’ initiative has been criticised by supporters of a quick ratification of the treaty who say this step is just delaying tactics that would enable President Vaclav Klaus to postpone the signing of the treaty and thus its final ratification.
Klaus is known as a staunch critic of the Lisbon treaty.
Minister for European Affairs Stefan Fuele recently called the senators’ efforts “an unsubstantiated and illogical step” that should not hamper the ratification process.
However, the senators argue that the amendments on the special mandate are not sufficient and that it is at variance with the constitution for the houses of parliament to approve further transfers of power to the EU by less than a constitutional majority.
The senators called on the Constitutional Court to apply the final right to interpret the European legislation related to the Lisbon treaty. They also propose that parliament approve Czech candidates for EU commissioner and judges of the European Court of Justice.
The treaty’s opponents among senators turned to the Constitutional Court already in 2008. Last November the court said it did not find the treaty inconsistent with the Czech constitutional order.
[...]“
Stirea si in Prague Monitor.
…urmare a constatarilor Curtii constitutionale federale din Germania.
Din EuropeanVoice.
A democratic gap that a court cannot fill
By Katrin Auel
When Germany’s Constitutional Court accepted the constitutionality of the Treaty of Lisbon, it again emphasised the European Union’s structural democratic deficit – and it focused its criticism mainly on the European Parliament.
The assembly, it argues, is “neither in its composition nor its position in the European competence structure sufficiently prepared to take representative…majority decisions…on political direction”.
It made it very clear that the responsibility for integration and its democratic legitimation should rest firmly with the representative institutions of member states.
Its critique of the Parliament is partly justified. Elections to it violate the principle that each vote should have an equal weight, since small states enjoy better representation per capita. And, despite a further increase in power if the treaty is ratified, the Parliament will still not be an equal player in the European game.
The far greater problem, though, is that elections to the Parliament are dominated by domestic issues, parties and personalities.
As a result, they do not give citizens the opportunity to express their preferences on EU issues and to hold parties in the Parliament accountable for their performance.
The German court’s demand that the involvement of domestic parliaments in EU-related debates should be guaranteed, while good news as such, will do little to narrow this democratic deficit: unfortunately, when it comes to EU affairs, the electoral connection between citizens and their representatives is not much stronger within member states than it is in Parliament elections.
Throughout Europe, EU issues still generally play only a minor role in national election campaigns. And although national parliaments, frequently depicted as the main victims of the integration process, have become more involved and powerful in EU affairs, much of their EU-related activity takes place in committees or party group meetings, often behind closed doors, while plenary debates on EU issues are few and far between. Thus, domestic politics, too, fails to provide an electoral choice or even genuine public debate on EU issues.
Most mainstream political parties in Europe shy away from politicising European issues, both at the European and the domestic level. This is a rational political choice.
Since party positions on the EU deviate from the classic left-right dimension, they are not easily integrated into the traditional patterns of party competition and may threaten the internal cohesiveness of political parties, something party leaders are keen to avoid.
In addition, research shows that – with very few exceptions – mainstream parties are significantly more supportive of integration than their voters, which makes politicising European affairs a risky strategy. The consequence is a determined de-politicisation of European integration by the mainstream parties. That not only leaves the field wide open to Eurosceptic parties from the fringes of the left and right, but also means that European citizens have few opportunities to voice their opinion on, let alone their opposition to, further integration or specific European policies.
Yet, as a number of referenda and – in particular – the debacle over the European Constitution have amply demonstrated, ‘Europe’ is no longer an issue that the public is willing to leave on trust to its political elites.
The more the effects of European membership have hit home, the more the ‘permissive consensus’, under which a fairly disinterested European public trusted their elites’ decisions on European affairs, has crumbled.
Given the lack of other opportunities, it is therefore hardly surprising that citizens have used referenda to express their unease about EU developments.
Continuing to downplay the salience of European integration, as parties do, will probably increase citizens’ feelings of being ignored; it may even provoke a wholesale rejection of the European project in larger parts of the electorate.
The main problem of democratic legitimacy in the EU is not, then, the lack of power of its parliamentary institutions or the unequal representation of member states’ electorates in the Parliament.
The more important problem for European democracy as a whole is the lack of public debate and political competition on European issues.
The primary responsibility for EU citizens’ lack of ownership of European decisions therefore lies with mainstream parties across Europe.
Katrin Auel is a lecturer and fellow at Oxford University and co-editor of “The Europeanisation of Parliamentary Democracy”.
Cititi despre asta in Deutsche Welle ori in EUObserver, spre exemplu.
Francisco J. Infante Ruiz, Between Politics and Academy: A Common Frame of Reference of European Private Law, April 29, 2008, InDret, Vol. 2, 2008. Available at SSRN. (articol in spaniola)
Abstract:
After the European Commission -in 2003- evoked the image of a Common Frame of Reference (CFR) as an instrument to improve the quality of the common heritage in the field of contracts, and with the help of a more common terminology shared by the Member States, the idea has been developed through a vertiginous process, towards the achievement of a definitive text. At the present moment the final phase of the process is taking place and has been achieved by a group of academics (“Study Group” and “Acquis Group”) the so-called Draft Common Frame of Reference (DCFR, 2008), which aims at becoming the real translation of the original idea. The process and the corresponding work have been intense and complex, and many groups, institutions and organizations have taken part in it. Ideas and opinions have not always been clear and linear, above all, because the Commission’s declarations have often roamed in the halo of ambiguity and at the same time the participants have lived strong frictions between them. This work tries to highlight all these issues and the reality that the academic proposal of a CFR has exceeded the initial “order” abundantly. There is a wide gap between a “political CFR” and an “academic” one. We are still waiting for the Commission’s next step: it might accept it totally, refuse it totally, suggest changes or keep some of its parts.
Judicial Review of UN Sanctions by the European Court of Justice
Abstract:
European University Institute (EUI)/Working Paper Series
Stiri de la Berlin.
LISBETH KIRK, Berlin starts talks over Lisbon treaty law, euobserver.com, 3.08.2009.
One Europe in one confusing world order – by Dominique Mois
Nowadays, there is both too much and too little Europe, or, to put it differently, too many European countries are represented in the world’s premier forums, with too many voices. But, in terms of weight and influence, there is not enough united Europe. In the early 1980s, former French Foreign Minister Jean Francois-Poncet suggested that France and Britain give up their seats on the U.N. Security Council in favor of a single European Union seat. Germany would no longer seek a seat, Italy would not feel left out, and Europe’s international identity would be strengthened in a spectacular way. Of course, this was not to be. France and Britain were not willing to give up the symbol of their nuclear and international status. They are probably are even less willing to do so today in the name of a union that is less popular than ever, at least in the British Isles.
It would be absurd to set U.S. President Barack Obama and EU Commission President Jose Manuel Barroso against each other as equals. Whereas Obama owes his election in large part to his charisma, Barroso is likely to succeed himself precisely because of his lack of charisma, because he says very little in so many languages.
Europe’s last chance to be a credible actor in a multipolar world rests precisely on its ability to present a single, united, responsible voice. Europe currently exists as an economic actor, not as an international political actor. In today’s global age, with the rise of emerging powers and the relative decline of the West, the only Europe that will be taken seriously is a Europe that can speak and be seen as one.
3 August 2009
[SURSA]
Fragmente:
THE reverberations from last month’s ruling by Germany’s Constitutional Court on the European Union’s Lisbon treaty seem to be growing. In effect, the court said that the EU is not democratic enough to support more integration and told Germany, the biggest EU member, to hit the pause button.
The court asked the German parliament to pass a new law to give itself more say over EU affairs. It added that, even if national legislators duly become more active, there are limits to the powers that they can cede to Europe. The EU is not a democratic state and the European Parliament is not a proper legislature, it said. Germany must therefore retain the power to shape “citizens’ circumstances of life” in such areas as criminal law, taxation, education and religion.
The court has a history of approving EU integration with reservations. But this time, in language reminiscent of 19th-century nationalism, it argued that “no uniform European people” could “express its majority will in a politically effective manner”. The European Parliament, in which voters from small countries such as Malta have far more weight than Germans, is not up to the job. So the court wants to ensure that Germany does not surrender to the EU any of the core powers of a democratic state. By its ruling, the court sets itself up as final arbiter of further EU integration (and even of rulings by the European Court of Justice), argues Christian Calliess of the Free University in Berlin. That could threaten the EU’s main function, to make and enforce European law.
Restul puteti citi aici.
Inca o hotarare interesanta. Nu e o continuare (directa) la Kadi, prietenii stiu de ce (raspunsu’? e simplu: pentru ca masura priveste vechea tipologie a masurilor restrictive, cele impotriva tarilor terte, iar nu a particularilor).
TPI a respins actiunea.
Asadar:
JUDGMENT OF 9 July 2009, Joined Cases T‑246/08 and T‑332/08, Melli Bank plc v Council
Common foreign and security policy – Restrictive measures against the Islamic Republic of Iran to prevent nuclear proliferation – Freezing of funds – Actions for annulment – Judicial review – Proportionality – Equal treatment – Obligation to state reasons – Plea of illegality – Article 7(2)(d) of Regulation (EC) No 423/2007
[EN]
Ultima reuniune G8 coincide cu noua enciclica papala, CARITAS IN VERITATE.
Sau, cum ar veni, episcopul Romei despre globalizare si subsidiaritate. Un fragment extras din pct. 57 al documentului, in limba engleza:
“Subsidiarity is first and foremost a form of assistance to the human person via the autonomy of intermediate bodies. Such assistance is offered when individuals or groups are unable to accomplish something on their own, and it is always designed to achieve their emancipation, because it fosters freedom and participation through assumption of responsibility. Subsidiarity respects personal dignity by recognizing in the person a subject who is always capable of giving something to others. By considering reciprocity as the heart of what it is to be a human being, subsidiarity is the most effective antidote against any form of all-encompassing welfare state. It is able to take account both of the manifold articulation of plans — and therefore of the plurality of subjects — as well as the coordination of those plans. Hence the principle of subsidiarity is particularly well-suited to managing globalization and directing it towards authentic human development. In order not to produce a dangerous universal power of a tyrannical nature, the governance of globalization must be marked by subsidiarity, articulated into several layers and involving different levels that can work together. Globalization certainly requires authority, insofar as it poses the problem of a global common good that needs to be pursued. This authority, however, must be organized in a subsidiary and stratified way[138], if it is not to infringe upon freedom and if it is to yield effective results in practice”.
Textul in FR suna mai exact. Din pacate, varianta in limba latina n-a aparut inca.
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