July 22, 2016

Turkuler Isiksel on the Turkish Coup and Its Aftermath

Network member Turkuler Isiksel (Columbia) was born in Turkey but left to attend university in Edinburgh, later receiving her Ph.D. from Yale. She recently gave an interview to the Columbia News, entitled "5 Questions on the Unrest in Turkey", which may be of interest to the readers. The first Q&A is excerpted below and the remainder of the interview can be found here.

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 Q. Turkey has had a number of coups since 1960. What makes this latest one stand out from the others?

A. There have been two direct military takeovers of the government, in 1960 and 1980, and two ultimatums issued by the military that brought down the elected governments of the time in 1971 and 1997. Each must be understood in context, but they all reflect the Turkish military’s self-understanding as the guarantor of the republic established by Mustafa Kemal Ataturk [Turkey’s first president, from 1923-1938.] In each instance, coup leaders viewed themselves as empowered to decide when the republic was in danger and how it needed to be defended, even if they had no legal authority to step in. Unlike those four instances, however, the July 15th coup attempt appears to be the work of a rogue clique within the military. [continue reading here]

June 29, 2016

Dan Kelemen in Foreign Affairs on Brexit: London Falling

Network member Dan Kelemen (Rutgers) has a great piece out in Foreign Affairs on the impact and causes of Brexit: the UK's "historic act of self-harm."  Entitled London Falling, it is available in full here (free registration required).  The first two paragraphs follow.

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In a historic act of self-harm, the British electorate has chosen to leave the European Union. Brexit—as it is called—will do severe damage to the United Kingdom’s economy and its strategic interests. Brexit will also deal a heavy blow to the project of European integration. The EU will survive, but it will never be the same. Leaders of far-right parties across Europe cheered the referendum result, as did Donald Trump. Meanwhile, the United Kingdom’s allies shuddered, and financial markets in the country and across the world plummeted.

With negotiations beginning over the terms of the United Kingdom’s departure, much is uncertain. But one thing is clear already: the Leave campaign’s claim that the EU had robbed the United Kingdom of its sovereignty was false. If nothing else, the vote shows that the country was sovereign all along and that it was free to make disastrous decisions.

The piece continues here.

June 28, 2016

Herwig Hofmann on "First steps after the UK referendum on Brexit"

With the continuing fallout from the UK's Brexit referendum last week, there has been a great deal of speculation about what happens next.  In this timely contribution, network member Herwig Hofmann (Luxembourg) offers his own thoughtful take, with particular focus on the legal framework governing Article 50 TEU, its intersection with the UK constitution, and EU reforms to enhance democratic legitimacy.

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The result of the question whether the UK should remain a member or leave the European Union, which was put before the UK electorate following a leadership crises in the British conservative party, is now known. Important parts of the UK voted to stay, notably Scotland, Northern Ireland and London. But on a rainy day, the slim majority of just over a million individuals or under two per cent of those eligible to vote however elected to opt for Brexit. This majority was largely made up by those above fifty, not the young. Over 50% of voters aged under fifty voted to stay.

Ever since, uncertainty about the proper way forward is part of the lives of the over five hundred million citizens of the EU and, of course, any politician or more generally, any decision-maker. The issues involved are so complex, and the consequences so difficult to assess not just with regard to their outcome for any citizen and any individual country or part of it, but for Europe as a whole and even globally, that a calm and collected response is necessary.

But in spite of all the uncertainty created, in assessing the situation, one fact is rather telling. Those who cheered the UK result were the likes of Nigel Farage, Marine Le Pen and Geert Wilders. Outside of Europe, this list also included Vladimir Putin and Donald Trump.  None of the above is known to campaign on platforms interested in individual rights or for their commitment to open and tolerant societies.

Should then, in this complex situation, a fast break-up be pursued? Should the official way to doing so, the procedure established in Article 50 of the Treaty on European Union be set in motion with the result that UK membership in the EU would automatically end two years after notification? Tellingly, Article 50 of the Treaty reminds us that the decision to withdraw from the European Union should be made by any Member State in accordance with its own constitutional requirements. The reason is clear, the decision to leave the EU is a decision with fundamental constitutional implications for both the withdrawing country and the EU as a whole.

June 27, 2016

Lucas Bergkamp on Brexit's Lesson for the European Union

In this post, network member Lucas Bergkamp (Erasmus University Rotterdam (emeritus) and Hunton & Williams) offers some provocative thoughts on the implications of Brexit.  Rather than focusing on ways to "punish" Britain or to forestall similar outcomes in other Member States, he argues that Europe's decision-makers should heed the true lesson of Brexit: that the critics have been right all along in their attacks on the Union's democratic credentials, and radical reform is needed if European integration is to survive and flourish.


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Brexit's Lesson for the European Union

Those who are dissatisfied with the outcome of the UK referendum on EU membership have responded defensively and dismissively. Accusations have been made about lies and misrepresentations by the pro-Brexit campaign, while the representations made by the other camp have not generally been subject to serious scrutiny. Is there any evidence, for instance, that Brexit will result in war? Concerned about further defections, some EU leaders have promoted a counter-productive strategy of harsh punishment: the UK should be punished severely to prevent other Member States from even considering an exit. Implicit in their position is the unattractive proposition that the EU can be kept together only if it punishes defectors. Unfortunately, the retributive approach, which has long been abandoned in criminology, has merely reinforced the impression of an anti-democratic behemoth controlled by an unaccountable bureaucracy.

Structural change

Proposals have also been made for structural changes to the referendum process in Britain (or more generally). One such proposal involves raising the minimal decisive vote in future referenda from a simple majority to some qualified majority (e.g., two thirds) to preclude a narrow majority from making fundamental long-term changes to the system. The US has adopted a high threshold for amendments to its constitution, but there at least some current thinking seems to favor reducing the threshold. In any event, if a referendum is part of the process, it seems logical that the threshold for leaving the EU should be the same as the threshold for joining the EU, and it should be agreed in advance, not after the fact and in light of a controversial outcome. Other proposals involve a second referendum that would be decisive on the issue. The justification for a second vote would be that people should be given a chance to learn from their mistakes, to change their mind, and to make the right choice. Of course, the unproven assumption is that people were uninformed or misled, and made the wrong choice.

June 24, 2016

The Quest for EU Reform after Brexit: Changes to the Role and Doctrines of the European Court of Justice

“What if…?” These kinds of questions may now seem pointless in the aftermath of the victory of Leave in the EU Referendum.  Instead we hear ‘What’s done is done’, ‘Leave means Leave’, ‘out is out’, etc., etc., etc.

But one question has always nagged at me ever since David Cameron brought his renegotiation deal back to the UK in February: What if it included a serious commitment to alter the role and doctrines of the European Court of Justice? Would that have tipped the balance toward the Remain side? Would we have been talking instead about a 52-48 victory for Remain? Would serious ECJ reform, both institutionally and doctrinally, have been enough to peel off the likes of Boris Johnson from the Leave camp, harnessing his energies for Remain and reform?

We will never know. But the question is still of interest, if for no other reason than the remaining Member States must now seriously consider a range of EU reforms in order to prevent further contagion of the Brexit virus. As former German Constitutional Court Judge Gertrude Lübbe-Wolff said in an interview on Verfassungsblog, ‘the shock over what has happened, and the fear of further disintegration, might produce an awakening effect. So I try to remain optimistic’. This post is in that spirit.

Broadly speaking, there are two options for EU reform in response to the Leave victory: ‘more Europe’ or ‘less’. Which should it be?

June 22, 2016

Tweet Storm on Karlsruhe’s OMT Judgment (with additional commentary)

With the Brexit referendum tomorrow, it will be easy to overlook yesterday’s OMT judgment from the German Federal Constitutional Court (English press release here, full German judgment here).  The conventional wisdom is that the decision is the usual “yes, but…” effort.  There’s some element of truth in that, but it also misses some important dimensions of ruling that will no doubt occupy commentators on Germany’s legal relationship with the EU for some time.  I’m still absorbing the judgment and also awaiting an English translation.  But in the interim, I thought I’d pass on my tweets from yesterday that tried to identify several key paragraphs worthy of deeper analysis. 

My current bottom line on the judgment is this: It’s basically a ripeness decision (to use American terminology) even if it's cast as a judgment on the merits. The Court acknowledged that, within the CJEU’s sphere of competence, the CJEU had the right to rule on the meaning of OMT in the first instance, as it did in Gauweiler.  The German Court, in exercising "ultra vires control," would give some significant deference to the CJEU’s interpretation.  But even with this deference, the Court found that the CJEU’s interpretation barely passed muster (indeed, it implied that the CJEU may well have been ultra vires, just not “manifestly” so, per the standard from Honeywell). So, should OMT actually ever be implemented, it will require continued monitoring by German political actors and perhaps even a new ruling by Karlsruhe.

The Court also went to great lengths, moreover, to define the limits and constitutional underpinnings of its otherwise “Europe-friendly” deference--what I called in Power and Legitimacy (pp.166 et seq) "the limits of strong deference."  This stands as a counterpoint to the CJEU's doctrine of supremacy.  And in advancing this alternative conception of EU law, the Court also strongly rejected the idea that the EU had any normative autonomy apart from what the Member States’ national constitutions permitted.  In particular, it is incumbent on all judges (supranational as well national) to police the boundaries of power delegated to the EU level in the interest of preserving democratic and constitutional legitimacy derived from the Member States. In this regard, the Court expressed profound concern about the CJEU's interpretation of the nature and scope of the ECB's independence.

In short, this a very interesting case and one worth of further study and debate.  It is also one that may have significant consequences for the future.

June 14, 2016

Daniel Halberstam: The Judicial Battle over Mutual Trust in the EU -- Recent Cracks in the Façade

Network member Daniel Halberstam (Michigan) has forwarded us this posting that originally appeared on Vervfassungsblog, which is cross-posted here with permission.

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In a little-noticed decision in April, the Court of Justice of the European Union (CJEU) significantly revised its approach to the doctrine of mutual trust among the member states. Even though the decision was issued only as an interpretation of the European Arrest Warrant, it will have profound consequences for the Area of Freedom Security and Justice more generally, including ongoing controversies concerning refugees.

Background

Mutual trust in the area of freedom, security, and justice has been at the center of judicial disagreement across Europe. Well known, for instance, is the longstanding skirmish between the CJEU and the European Court of Human Rights (ECtHR) in Strasbourg about the limits of the Dublin system’s requirement that a refugee be returned to the Member State of first entry for processing. The ECtHR has held that any court – even a court of an EU member state – must first conduct an individualized inquiry to ensure that a refugee not be returned to another state if such return would create a “real risk” that the individual will suffer inhuman and degrading treatment. The CJEU, by contrast, has insisted that the EU’s foundational principle of mutual trust constrains such inquiries by one member state into the affairs of another. The CJEU limited a refugee’s claim against return to the member state of first entry to cases in which there is proof of a “systemic deficiency” in the member state of first entry. The CJEU’s insistence on “systemic” risk thus potentially foreclosed certain individualized claims of harm, unless they were accompanied by proof of broader deficiencies in the recipient country that were system wide. Member State courts caught in the middle between these two doctrines have shown some resistance to Luxembourg, with the U.K. Supreme Court, for example, saying it would disregard Luxembourg’s interpretation and heed the U.K.’s obligations to Strasbourg instead.

On another front, the CJEU has been doing battle with Member State courts on the European arrest warrant. Recall that in the landmark Melloni decision, the CJEU shut down the Spanish Constitutional Court’s objection that surrender of Mr. Melloni to Italy could be refused because it might violate his particular right against trial in absentia under the Spanish Constitution. The CJEU held that under the circumstances of that case there was no EU fundamental rights violation, and that Spain could thus not invoke an individual right under its own constitution to refuse surrender. In response, the Spanish Constitutional Court gave in – albeit not by following the ECJ directly, but by adjusting its own domestic jurisprudence under the Spanish Constitution.

May 20, 2016

2016 ICON-S Conference: Borders, Otherness and Public Law (June 17-19, 2016, Berlin)

We are pleased to announce the third instalment of the annual conference of the International Society of Public Law (ICON-S). It is organized by Humboldt University and the Center for Global Constitutionalism at the WZB Berlin Social Science Center, together with the Jean Monnet Center for International and Regional Economic Law and Justice at NYU School of Law. The program lists more than 120 individual panels interspersed with plenary sessions featuring renowned keynote speakers. In the final plenary, network members Gráinne de Búrca and Joseph H.H. Weiler will be interviewing the President of the Court of Justice of the European Union, Koen Lenaerts, and the President of the European Court of Human Rights, Guido Raimondi.

The full program is available here. Registration is still open. The organizers kindly ask attendees to confirm attendance by May 23.

May 18, 2016

Different Union, Greater Unity: Reflections on a Semester of Debates at NYU on the EU’s Concurrent Crises

The EU is facing four concurrent crises that may call into question its very existence: the EMU, Brexit, refugees, and terrorism.  This semester, the Jean Monnet Center for International and Regional Economic Law & Justice at NYU School of Law has had the privilege of hosting a series of fascinating seminars on these traumatic circumstances. Georgette Lalis, Senior Emile Noel Fellow, and Samuel Dahan, Emile Noel Fellow, have forwarded us this overview of those debates along with some provocative reflections of their own on the path forward.

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What has emerged from this semester's enriching debates at the Jean Monnet Center is that the EU is facing both circumstantial crises – the refugee and terrorism crises – but also, and more significantly, structural problems coming from within: Brexit and the EMU crisis.

The EMU crisis occurred as the result of the financial meltdown of 2008; but it is nevertheless an institutional crisis, predictable and indeed predicted, that resulted from flaws in the structure of the eurozone itself. While is it true that the EMU has succeeded in partially addressing these issues, the euro area is still faced with both an economic and a governance crisis. In a nutshell, the decision-making process in the euro area is unnecessarily complex, lacks transparency and democratic legitimacy, and calls into question the balance between Member States and European Institutions. We, the Emile Noel Fellows, are privileged to have the opportunity to conduct research on the legal aspects of the crisis and explore potential avenues of addressing the EMU’s flaws. Our research will eventually take the form of a Jean Monnet Working Paper.  

    While the Brexit crisis has very different causes from the EMU crisis, it is also a political deadlock that threatens the integrity of the EU as a whole. Brexit is the climax of a long and difficult British-European relationship in which the UK has always kept one foot outside the EU. A potential Brexit, let alone the threat it might represent to the integrity of the EU, would substantially change the nature of the UK’s membership in the EU (although the latter is already limited by important opt-outs.) From a reputational/formal standpoint, the departure of one of the EU’s strongest members would set a bad precedent and could trigger a domino effect, ultimately leading to deeper fractures in the Union. Much has been written on the economic effects of a Brexit for both the UK and the EU. It is clear to us, however, that a Brexit at this time would send a bad signal to the outside world concerning the cohesion of the EU. On Friday, February 12, former UK cabinet minister and Shadow Chancellor Ed Balls eloquently described the “backward relationship” between the UK and the EU in a discussion entitled "Brexit or Bremain? Britain’s Fraught Relationship with the EU.” While Balls made a strong argument in favor of ‘Bremain’, the outcome will only be known in June after the UK referendum.

As for the refugee and terrorism crises, while they clearly have an EU dimension, they are closely linked to outside factors and to national politics. Though public opinion often associates one with the other, it is important to emphasize that they have very different origins and implications. Both are the result of circumstantial/non-institutional pressures, and the juxtapositions between these two sets of crises leaves room for significant improvements in the situation through efficient coordination of national policies. Although the refugee and terrorism crises do not stem from European institutional flaws as such, they may well turn into an institutional nightmare if the Union doesn’t learn from its mistakes and mount a quick response to strengthen its immigration and security policy coordination.

May 13, 2016

Amedeo Arena on Competences and Pre-emption in the EU

We are pleased to announce that new network member Amedeo Arena (Naples) has just published an article in the Yearbook of European Law.  Entitled "Exercise of EU Competences and Pre-emption of Member States' Powers in the Internal and the External Sphere: Towards 'Grand Unification'?," the article focuses on pre-emption analysis under EU law and asks whether a "grand unification" theory might explain pre-emption both of Member States' internal law-making powers and of their external treaty-making powers.

The first two paragraphs follow; advance access to the full text of the article is available for free here.

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For many European Union scholars, the term ‘pre-emption’, when is not used in connection with a priori exclusive competences, immediately brings to mind the European Court of Justice (‘ECJ’) holding in ERTA that "each time the [Union] . . . adopts provisions laying down common rules . . . the Member States no longer have the right, acting individually or even collectively, to undertake obligations with third countries which affect those rules." The doctrine of pre-emption in the external sphere—that is, the limitations that the exercise of EU internal competences imposes on Member States’ power to undertake international commitments—is, possibly, the subject that has drawn most attention in the EU external relations law academic circles.

In contrast, legal scholarship has hitherto paid somewhat less attention to the doctrine of pre-emption in the internal sphere–that is, the restraints that the enactment of EU legislation imposes on national law-making powers. Its first application by the ECJ, which can possibly be traced back to the Unger ruling of 1964, went largely unnoticed by legal commentators of that time. Moreover, the ECJ hardly ever referred to this legal phenomenon by the term ‘pre-emption’ or its derivatives. Although in the early 1980s legal scholarship recognized pre-emption, along with direct effect and supremacy, as one of the hallmarks of Community normative supranationalism, no more than a handful of comprehensive treatments have been devoted to that subject since then.

The article continues here.