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.
Sau cum ar veni “the use of foreign law & doctrine in American courts”…Ori despre modele de “fédéralisme d’exécution“.
“The federal systems of Switzerland, Germany, and the European Union, for example, all provide that constituent states, not federal bureaucracies, will themselves implement many of the laws, rules, regulations, or decrees enacted by the central “federal” body.”
Supreme Court of United States, 521 U.S. 898, Printz v. United States, 95-1478 Argued: December 3, 1996 — Decided: June 27, 1997. Justice Breyer, with whom Justice Stevens joins, dissenting.
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-
Chantal Mak, The Constitutional Momentum of European Contract Law (II): The DCFR and the European Constitutional Order (September, 22 2009). Opinio Juris in Comparatione, Vol. 2/2009, Paper No. 3. Available at SSRN.
Abstract:
This paper analyses the potential impact of the recently published Draft Common Frame of Reference for European contract law (DCFR) on the European constitutional process. Looking at the combination of characteristics of codification and aspects of constitutionalism reflected in the DCFR, it is submitted that the further harmonisation of European contract law may contribute to the definition of the European constitutional order both on the institutional level (regarding the forms in which Europe’s Constitution is expressed) and on a substantive level (concerning the values encompassed by a ‘lasting constitutional settlement’ for the EU).
O stire notabila din The Telegraph; desigur, nu este o surpriza. Cat despre caracterul exclusiv al competentelor externe ale UE prin noul tratat… vom mai vorbi si cu alte ocazii.
“The European Union has drawn up secret plans to establish itself as a global power in its own right with the authority to sign international agreements on behalf of member states.
Confidential negotiations on how to implement the Lisbon Treaty have produced proposals to allow the EU to negotiate treaties and even open embassies across the world.
A letter conferring a full “legal personality” for the Union has been drafted in order for a new European diplomatic service to be recognised as fully fledged negotiators by international bodies and all non-EU countries.
According to one confidential paper, the first pilot “embassies” are planned in New York, Kabul and Addis Ababa.
The move is highly symbolic in Britain as it formally scraps the “European Community”, the organisation that Britons originally voted to join in the country’s only referendum on Europe 34 years ago.
Mark Francois, Conservative spokesman on Europe, said that the deal showed why the British should have been given a referendum on the Lisbon Treaty.
“As we have long warned, the Lisbon Treaty increases the EU’s power at the expense of the countries of Europe,” he said. “The new power a single legal personality would give the EU is a classic example.
[...]
The decision, taken shortly before Ireland’s referendum last week, will mean a new European diplomatic service with over 160 “EU representations” and ambassadors across the world.
Lorraine Mullally, the director of Open Europe, described the move as “a huge transfer of power which makes the EU look more like a country than an international agreement”.
“Giving the EU legal personality means that the EU, rather than member states, will be able to sign all kinds of international agreements – on foreign policy, defence, crime and judicial issues – for the first time,” she said.
[...]
A restricted document circulated by the Netherlands, Belgium and Luxembourg, seen by The Daily Telegraph, spells out the need for legal changes to set up a European External Service (EEAS), an EU diplomatic and foreign service with “global geographical scope”.
The paper said: “The EEAS will need a legal status providing it with functional legal personality so that it has sufficient autonomy.
“This legal personality should also give it the capacity to act as necessary to carry out (its) tasks.”
A British diplomat defended the decision. “The EU has been able to sign treaties for over a decade. The innovation under the Lisbon Treaty is that the European Community will cease to have legal personality. This is about simplification,” she said.
Brussels ambassadors yesterday (TUES) began detailed work, in secret, to create new institutions, the EEAS, “foreign minister” and EU President, that are to be set up under the Lisbon Treaty.
Decisions “in principle” will be taken despite the fact that both Poland and the Czech Republic have not yet fully ratified the new EU Treaty.
The creation of the EEAS has sparked a bitter Brussels turf war. The European Commission could lose up to 1,424 senior staff from three departments.
Another 400 staff will be taken from the Council of the EU and an “equivalent” number will be seconded from national diplomatic services.
The EEAS will take over Commission representations – there are currently more than 160 offices around the world – and its senior diplomats will be given the same status as national ambassadors”.
de fapt…
Tratatul dintre Regatul Belgiei, Republica Cehă, Regatul Danemarcei, Republica Federală Germania, Republica Estonia, Republica Elenă, Regatul Spaniei, Republica Franceză, Irlanda, Republica Italiană, Republica Cipru, Republica Letonia, Republica Lituania, Marele Ducat al Luxemburgului, Republica Ungară, Republica Malta, Regatul Ţărilor de Jos, Republica Austria, Republica Polonă, Republica Portugheză, Republica Slovenia, Republica Slovacă, Republica Finlanda, Regatul Suediei, Regatul Unit al Marii Britanii şi Irlandei de Nord (state membre ale Uniunii Europene) şi Republica Bulgaria şi România privind aderarea Republicii Bulgaria şi a României la Uniunea Europeană
a fost ratificat prin Legea nr. 157/2005, publicat in Monitorul Oficial nr. 465/1.06.2005.
{*}
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.
Christiana H.J.I. Panayi, Corporate Mobility in Private International Law and European Community Law: Debunking Some Myths. YEARBOOK OF EUROPEAN LAW, Eeckhout, P., Tridimas, T., eds., Vol. 28, Oxford University Press, 2009; Queen Mary School of Law Legal Studies Research Paper No. 26/2009. Available at SSRN.
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.
Sunt cuvinte cheie dintr-un articol aparut in New York Times: Czech Leader Questions Path for Europe
Cateva fragmente:
Even without these economic differences, Alexandr Vondra, the former Czech deputy prime minister for European affairs, argued in an interview that from the first days of the Czech presidency, larger countries like France were determined to undermine it.
“We were under fire from the start,” he said. “The ayatollahs of the Lisbon Treaty in Brussels and Paris wanted us to fail in order to prove their argument that the rotating E.U. presidency didn’t work and that the E.U. couldn’t function without a new treaty.”
[...]
When the Czechs led a European summit meeting in Brussels in June, aimed at overcoming Irish resistance to the Lisbon Treaty, they were sidelined at central negotiations, which were conducted mainly by Germany and France, European diplomats said.
When presented at the meeting with a menu of Czech food, including roast duck, cabbage and traditional potato dumplings, Mr. Sarkozy seemed to summarize the mood: he declined and asked for an omelet instead.
Judicial Review of UN Sanctions by the European Court of Justice
Abstract:
European University Institute (EUI)/Working Paper Series
The Legal Effect of Directives: Policy, Rules and Exceptions
European Law Review, Vol. 34, No. 3, p. 349, 2009
Abstract:
This article reconsiders the legal effect of Directives for private parties within Community law. This is a vexed issue that has generated significant academic commentary and much case law. The qualifications and exceptions to the basic proposition that Directives do not have horizontal direct effect continue to grow, thereby rendering this overall area even more complex than it was hitherto. The article seeks to shed light on this topic by subjecting to critical scrutiny the policy underlying the ‘core rule’ that denies horizontal direct effect to Directives, and considering whether the judicially created exceptions or qualifications to that policy are consistent with it.Keywords: Directives, direct effect, indirect effect, incidental effect, principle of interpretation, legal reasoning
Aici.
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]
Din The Times.
A British grandmother has become a fugitive from the French judicial system, wanted for a conviction that she never knew she had.
Deborah Dark, 45, from Richmond, West London, was blissfully unaware of her status as a wanted woman when she went to visit her elderly father in Spain. Her plight became clear only as she tried to return home. At the airport she was arrested and incarcerated for a month, as French authorities sought to have her extradited to serve a six-year sentence.
Though a Spanish judge denied the request she was arrested again on her return to London. A European Arrest Warrant has been issued and authorities in every member state of the EU are obliged to detain her should she set foot in their country.
The alleged offence for which Mrs Dark is now being pursued is from 1988, when she was 24 and was driving home from a holiday in Marbella, Spain, with her eight-year-old daughter. At the French border, customs searched her car and found several kilograms of cannabis beneath the floor and in the sunroof.
Mrs Dark told the French police that she had been unaware of the drugs, and suspected that her boyfriend of nine months was responsible. He had asked her to hire a car in her name, she said.
A French court believed her account and she was acquitted after eight months on remand. She went home and ended her relationship with her boyfriend.
The prosecution subsequently made a successful appeal and in 1990 Mrs Dark was sentenced in her absence to six years in prison. Neither she nor her lawyer were made aware of this, either at the time or during the next two decades. During that time Mrs Dark travelled to France on several occasions, unaware of her status as a convicted criminal.
In 2005 a public prosecutor in the town of Pau, in southwest France, applied for and was granted a European Arrest Warrant. Still unaware of this stain on her reputation, Mrs Dark went on holiday to Turkey with a friend in 2007.
“I knew something was wrong as soon as I arrived at passport control,” she said. “Customs police arrested me at gunpoint and I was strip-searched and handcuffed. I kept asking why and all they said was ‘ask Interpol’. As soon as I got home, I went straight to the police and and told them what had happened. They searched their databases and told me there was no outstanding warrant listed. I went to the Serious Organised Crime Agency and they said the same thing. So I assumed it must have been a dreadful error.”
A year later, returning from Spain with her daughter and two grandchildren, she was again stopped and imprisoned. She was made aware of the warrant. A Spanish court refused to execute it, on the ground that too much time had passed since the alleged offence.
Arrested again upon her return to Britain, she was bailed to await another extradition hearing. The City of Westminster Magistrates’ Court also refused to extradite her, the judge questioning whether she could be given a fair trial so long after the event. Nevertheless, she says that her life has been shattered by the ordeal and the threat of arrest has left her confined to Britain. She has lost her job, has become indebted and is unable to visit her ageing father.
Fair Trials International said that her case “demonstrates a serious problem with Europe’s fast-track extradition system”. It has called upon the French authorities to drop their request for her extradition.
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.
Karen Knop, Ralf Michaels, Annelise Riles, International Law in Domestic Courts: A Conflict of Laws Approach(April 23, 2009). American Society of International Law Proceedings, Vol. 103, 2009; Duke Law School Public Law & Legal Theory Paper No. 253; Cornell Legal Studies Research Paper No. 09-016. Available at SSRN.
Abstract:
The relationship between international law and domestic law is rarely understood as a conflict of laws. Understanding it in this way opens up a parallel with the field of conflict of laws: the field for which the relationship between legal systems, especially the role of another system’s jurisdiction, laws, and judgments vis-à-vis the domestic legal system, are exactly the bread-and-butter issues. We argue for such an approach to international law in domestic courts: an approach that we elaborate as “theory through technique.”
In our view, conflicts should be seen broadly as the discipline that developed to deal with conflicts between laws, without necessarily being committed to any one method or policy. Surprisingly, we demonstrate that it is precisely the seemingly negative features of conflicts – the field’s high degree of technicality disparaged as a “conflict-of-laws machine” and the multitude of theories famously deemed a “dismal swamp” – that figure among the advantages of a conflict-of-laws approach to international law in domestic courts.
A conflict-of-laws approach offers ways to respect the nature of international law as law, without simplifying that nature by characterizing it exactly as domestic law. In addition, seeing the parallel with conflict of laws brings a wealth of experience that can enrich and refine the debate on international law in domestic courts. Finally, the parallel with conflicts changes international law in domestic courts from a specific problem addressed by international and constitutional lawyers into a general problem of relativism – which, we argue, conflict of laws is uniquely positioned to address.
Nu ar trebui sa fie chiar o surpriza. Lucrurile (cam) asa stau. Daca statele membre ale UE sunt ze “masters of the treaties” (EC Treaty, evident si in primu’ rand), daca CE/UE n-are kompetenz-kompetenz, daca s-a abandonatara conceptu’ constitutionalicesc precizat prin fostul Tratatul constitutional, daca UE nu e federatie, daca si iar daca… atunci care, pana la urma, e statutul unei instante de contencios constitutional (suna pretentios, nasha?) dintr-un stat membru al UE? Cine are legitimitatea ultima? Si apoi, unde rezida suveranitatea? Si asa mai departe.
Ei bine, Der Spiegel publica un articol realmente interesant. Il redam in intregime:
Last week’s ruling by the German Constitutional Court, coupled with demands by one conservative party for changes to the constitution, may not only jeopardize Berlin’s schedule for the ratification of the Lisbon Treaty. The Karlsruhe ruling also threatens future steps toward European integration.
But the CSU cares little about past errors. Now the idea is to push ahead and “Gauweiler” them! Last Thursday, the politicians from Bavaria decided to follow up their success with a new set of demands. They want the Lisbon Treaty to be ratified only under condition that the new EU law would only be valid in Germany “in accordance with the decision by the German Constitutional Court.” They are now demanding a solution that gives “maximum” parliamentary influence over future EU policy.
The CSU parliamentary group aims to approve an entire catalog of demands at a party meeting in the former Benedictine monastery of Kloster Banz in mid-July. The Bavarians even want to push through a number of changes to the German constitution. One of these would oblige the government to adhere to the parliament’s position papers on European policy. “Our Constitutional Court demands greater rights of co-determination,” says CSU Secretary General Alexander Dobrindt and “we have to comply. It would be good if the decisions of the lower house of parliament, the Bundestag, and Germany’s upper legislative chamber, the Bundesrat, on changes to the EU Treaty were complemented in the future by a referendum.” “People are going to have to make considerable concessions to us to receive the CSU’s support,” says Thomas Silberhorn, CSU parliamentary group spokesman on EU affairs.
Not all of this is realistic. But it’s a political bombshell that could torpedo the German government’s Lisbon rescue concept. If the coalition partners still have to struggle with major stipulations so shortly before the summer break, then there is no chance of doing a quick and quiet fix that would satisfy the Constitutional Court’s criticism of the accompanying law’s flaws.
Tears of Frustration Ahead
In addition to undermining the effectiveness of Germany’s ratification of the Lisbon Treaty, this could tip the scales for the other European countries that have yet to ratify — namely Ireland, Poland and the Czech Republic. The conditions posed by the court in Karlsruhe will make things “much more difficult than we had imagined,” the leaders of the conservative parliamentary group that combines the CDU and CSU admitted late last week.
That’s putting it mildly. The Bavarians’ “Gauweiler” tactics only provide an inkling of the inner political strife that is in store for Germany. Despite the premature cries of triumph among staunch EU supporters in the ruling coalition and in Brussels, last Tuesday’s ruling on the Lisbon Treaty will yet unleash rage and tears of frustration.
Now that the court in Karlsruhe has spelled out Germany’s role in European unification, this heralds the end of a policy of increasing integration. According to the judges, Germany’s future lies not in “a united Europe” — but rather in Germany. In the future, the most powerful EU partner will also be the most difficult one, even if — despite Gauweiler’s legal challenge — it ends up unconditionally ratifying the Lisbon Treaty.
This would be true even without the conditions proposed by the CSU. The German Constitutional Court has found its own unique way of effectively putting the brakes on European policy.
The judges wrote that “if obvious transgressions of boundaries take place when the European Union claims competences,” then they will call for a “review” to “preserve the inviolable core content of the Basic Law’s constitutional identity.”
That is the kind of wording that goes beyond the dreams of Gauweiler and his friends. It simply means that the court assumes the right to single-handedly determine the boundaries of European integration — in a broad sense and, if necessary, in detail.
Member States Remain ‘Masters of the Treaties’
Frank Schorkopf, a former associate of the judge who authored the ruling, Udo Di Fabio, and now a professor of constitutional law in Göttingen, sees this as a “more intelligent version” of a treaty proviso. It is a “supple, dynamic stipulation,” which allows the Constitutional Court greater flexibility and sensitivity, but also places great future demands on the judges because “the court has thus taken on the responsibility of fulfilling this monitoring function,” says Schorkopf.
The court has prescribed a two-fold approach: The parliamentarians have to add far-reaching monitoring rights to the accompanying law criticized by the judges in Karlsruhe, should it come to the extension of Brussels’ competences provided for under the Lisbon Treaty. In addition, the Constitutional Court will ensure that these monitoring rights are appropriately applied.
After all, making additional demands on the accompanying law is “a fine thing,” says Lüder Gerken, director of the Freiburg-based Center for European Policy. But “the key aspect,” says Gerken, is the court’s statements that member states — including of course Germany — “still remain the masters of the treaties” and “therefore must see to it that there are no uncontrolled, independent centralization dynamics” within the EU.
Part 2: Declaration of War on the European Court of Justice
Although the Karlsruhe ruling points out that it is initially the job of lawmakers to fulfill this “responsibility for integration,” the Constitutional Court ultimately sees this as its own task in the future. By doing so, the German Constitutional Court has essentially declared itself the highest supervisory body in conflicts between Germany and the EU, and thus explicitly placed itself above the European Court of Justice (ECJ).
This borders on a declaration of war on the European Court, which sees itself as the only authority capable of ruling on the validity and applicability of EU law. The judges in Karlsruhe have authoritatively decided that they have won the conflict of competence which has been brewing for years between the two top courts.
Admittedly, the court has included a complicatedly worded supplementary declaration on the Lisbon Treaty that reaffirms the supremacy of the ECJ’s judicial authority. But the judges in Karlsruhe did the same thing with this document as they did with a wide range of contentious issues in the Lisbon Treaty text: They interpreted it in a way that makes it compatible with their view of the distribution of power within the EU as an “association of sovereign national states.” The judicial supremacy is only valid within the boundaries defined by the court in Karlsruhe, and the Lisbon Treaty is only compatible with the German constitution within the confines of the Karlsruhe interpretation.
For instance, it explicitly states in the Lisbon Treaty that the procedures of the EU are based on representative democracy, and the European Parliament is composed of “representatives of the union’s citizens.” However, the judges in Karlsruhe argue that contrary to the claim that the Lisbon Treaty “seems to make according to its wording,” the EU Parliament is not a “representative body of a sovereign European people.”
After all, EU members of parliament were not elected according to the principle of electoral equality, in other words, one man one vote, but rather according to “national contingents,” meaning that a Maltese MEP represents 67,000 Maltese, a Swedish MEP has a constituency of 455,000 Swedes, and in Germany the ratio is 1 to 857,000.
‘An Association of Sovereign States’
The court says that this stands in contradiction to the remainder of EU law, which is built around the central idea of prohibiting discrimination based on nationality. According to the concluding statements of the court’s decision, this contradiction can only be explained by the fact that the EU is not a state but rather an “association of sovereign states” and, consequently, there can be no sovereign citizens’ union as well as no completely representative organ in the form of the European Parliament, with the result that the Bundestag must receive substantially more rights. Quod erat demonstrandum.
The Karlsruhe interpretation thus very elegantly demolishes the old European idea that the recognized democratic deficits in the EU would disappear completely of their own accord by enhancing the rights of the European Parliament — and democracy à la Brussels could one day, as MEP Klaus-Heiner Lehne puts it, “assume the role of the national parliaments.”
The European Parliament, as the judges in Karlsruhe clearly state, is terminally undemocratic — at least when measured against the basic concepts of representative democracy. The “small democratic deficit” of the Union, as Schorkopf puts it, has now been exposed as a “large democratic deficit.”
As a result, the German Constitutional Court concludes that even in the future, Brussels cannot be granted greater scope to enact legislation. This means that the plan to grant Brussels the ability to legislate criminal law in a number of EU policy areas will have to be largely dropped due to the risk of it being “without limits.” The court says that Brussels’ authority to enact legislation on criminal law can only be reconciled with German sovereign rights if jurisdictions are narrowly defined.
A “blanket empowerment” contained in the Lisbon Treaty allows the Council of Ministers to expand the list of criminal offenses “on the basis of developments in crime” and grants the EU the power to enact minimum regulations to combat cross-border crime. However, the Karlsruhe judges contend that the blanket empowerment really only applies to the “cross-border dimension of a specific criminal offense.”
Limits to Further Integration
Primarily, however, the judges declared for the first time that it is imperative to maintain the “space for the political formation of the economic, cultural and social living conditions” in the member states. In this national sanctuary, the judges see both “areas which shape the citizens’ circumstances of life, in particular their private spaces of personal responsibility and political and social security, as protected by their fundamental rights,” as well as “political decisions that particularly depend on a previous understanding of culture, history and language and which discursively unfold in a public political arena organized by party politics and parliament.”
According to the judges’ ruling, these “essential areas of democratic organization” explicitly comprise “citizenship, the civil and military monopoly on the use of force, revenue and expenditure, including external financing and all elements of encroachment that are decisive for the realization of fundamental rights, above all as regards intensive encroachments on fundamental rights such as the deprivation of liberty in the administration of criminal law or the placement in an institution.” These important areas also include “cultural issues such as speaking a language, shaping the circumstances concerning family and education, ensuring freedom of opinion, of the press and of association, and accommodating professions of faith or ideology.”
These are the limits that EU member state Germany has to set on future European integration. The “identity” of the German constitutional order may not be damaged by Brussels. Identity takes priority over integration.
Part 3: EU Supporters Are in for a Bumpy Ride
“The European train is no longer headed toward an arbitrary destination with no stops along the way,” says former constitutional judge Paul Kirchhof, adding that the court has marked the Lisbon Treaty as a “clear terminus.” There will be “no European state under the provisions of the German constitution.” And Schorkopf summarizes the ruling in one sentence: “The European Union is a contract-based association of sovereign states, and as such, takes a political back seat.”
And with Germany in the front seat, EU supporters are in for a bumpy ride. No matter what the representatives of the Berlin government decide at the Council of Ministers in Brussels, their decisions will be subjected to three possible tests back home. First, the court wants to ensure that the EU does not overstep its contractual competences. Second, the judges intend to enforce the “subsidiary principal” enshrined in EU law, which largely prohibits Brussels from taking action if a member state can handle the issues in question just as effectively on its own. Third, the judges now reserve the right to conduct an “identity check,” in other words, to test whether Germany still performs the functions that the Constitutional Court itself has defined as national tasks of government.
In order to ensure that the Lisbon Treaty will be treated in future as the Karlsruhe Treaty, the court has submitted a highly unusual request to the Bundestag to pass a new trial law. This could allow every citizen to file a special EU suit with the German Constitutional Court against unpopular European regulations and standards.
Given the new severity on European issues in Karlsruhe, such a procedure could make it almost impossible for Berlin to pursue its own European policy. No matter what German representatives agree to in Brussels, they will now always run the risk of receiving a phone call from Karlsruhe because a clever lawyer like Gauweiler has filed a complaint. This would create an untenable situation for the other 26 member states on the Council.
Limiting Berlin’s Highhandedness
At the same time, however, by more strongly tying the Germans to the political body in Brussels, the court has limited the highhandedness of the German government, which has all too often pushed through political goals that were difficult to achieve back home by going behind the back or against the will of the Bundestag. One example that comes to mind is a statement by the former Economics Minister Wolfgang Clement, a member of the Social Democrats, who voted in favor of an EU software patent guideline in 2005, overriding an explicit decision on the matter by the vast majority of the Bundestag. He said that the will of the German parliament “could not be conveyed internationally.” And the latest violation of the constitutional principles of data self-determination, namely data retention, was also pushed through by the German government, via Brussels, and against the will of the Bundestag.
The European Union directive, by which all European member states must oblige their telecommunications companies to retain data on their customers’ traffic, will presumably be the first test case for the new Karlsruhe rules. The constitutionally guaranteed protection of private space is one of the areas that the court has placed within the context of national identity. And there would be no need to even file a new lawsuit against the directive. After all, a number of constitutional complaints against data retention have been awaiting a decision from Karlsruhe for quite some time.
The judges have never before openly come out against an EU directive. But there’s a first time for everything.
THOMAS DARNSTÄDT, DIETMAR HIPP, RENÉ PFISTER
Gabriele Porretto, The European Union: Counter-Terrorism Sanctions Against Individuals and Human Rights Protection, (June 25, 2009). Transitional Justice Institute Research Paper No. 09-08. Available at SSRN.
Abstract:
This paper reviews some of the cases brought, until 2006, to the Court of First Instance (CFI) of the European Court of Justice by individuals and entities seeking judicial review of EU counter-terrorism sanctions implementing, respectively, UN Security Council Resolution 1267 (1999) and Resolution 1373 (2001).
While the CFI has declined to review EU acts implementing the 1267 sanctions regime, it has recently fully scrutinised and declared invalid an EC regulation implementing Resolution 1373, insofar as it freezes the plaintiff’s assets. The different outcome in the latter case is due to the different features of the 1373 sanctions regime.
The CFI position on the cases originating from the 1267 sanctions regime does not seem to be in line with the current picture of the EU system, where as a result of a long work of judicial construction, the protection of fundamental human rights is well entrenched in the EU Treaty. The Court’s acceptance of a lacuna in the EU human rights framework is all the more worrying if one considers the lack of alternative avenues of redress open to individuals targeted by counter-terrorism sanctions.
