July 17, 2014

Peter Lindseth: Equilibrium, Demoi-cracy and Delegation in the Crisis of European Integration (Corrected Version)

Network member Peter Lindseth (UConn Law School) has a new article out in the German Law Journal entitled "Equilibrium, Demoi-cracy and Delegation in the Crisis of European Integration".  The abstract is below.  A corrected version has been posted to fix errors inadvertently introduced by the editors without the author's approval.  The corrected version can be downloaded on SSRN here or the GLJ site here.

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As my work has argued previously, European integration enjoys an “administrative, not constitutional” legitimacy. This view is in obvious tension with the deeply-rooted conceptual framework—what we might call the “constitutional, not international” perspective—that has dominated the public-law scholarship of European integration over many decades. Although the alternative presented in my work breaks from that traditional perspective, we should not view it as an all-or-nothing rejection of everything that has come before it. The administrative alternative can be seen, rather, as providing legal-historical micro-foundations for certain theories that also emerged out of the traditional perspective even as they too are in tension with it. I am referring in particular to Joseph Weiler’s classic notion of European “equilibrium”—now updated as “constitutional tolerance”—as well as Kalypso Nicolaïdis’s more recently developed theory of European “demoi-cracy” on which this article focuses in particular. The central idea behind the “administrative, not constitutional” interpretation—the historical-constructivist principal-agent framework rooted in delegation, as well as the balance demanded between supranational regulatory power and national democratic and constitutional legitimacy—directly complements both theories. The administrative alternative suggests how the relationship between national principals and supranational agents is one of “mediated legitimacy” rather than direct control. It has its origins in the evolution of administrative governance in relation to representative government over the course of the twentieth century (indeed before). By drawing on the normative lessons of that history—notably the need for some form of national oversight as well as enforcement of outer constraints on supranational delegation in order to preserve national democratic and constitutional legitimacy in a recognizable sense—this article serves an additional purpose. It suggests how theories of European equilibrium and demoi-cracy might be translated into concrete legal proposals for a more sustainable form of integration over time—a pressing challenge in the context of the continuing crisis of European integration.

July 7, 2014

Reminder: Summer School on Parliamentary Democracy in Europe, LUISS Centre for Parliamentary Studies, Rome, Italy, July 14-25, 2014

We wanted to alert readers to the Summer School on Parliamentary Democracy in Europe hosted by the LUISS Centre for Parliamentary Studies in Rome, which will take place from July 14-25, 2014. Limited places are still available.  Network member Peter Lindseth (UConn) will deliver the closing lecture of the first week on July 18, and the faculty for both weeks includes a large number of leading scholars of EU law and politics (see here). An overview is immediately below, and the program is available here. Further information, including registration details, can be found here.  Tuition fees may be found here.

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Summer School on Parliamentary Democracy in Europe 
(Third edition) 
The Europeanisation of national parliaments 

Rome, July 14-25, 2014

Since the onset of the European integration process, national parliaments have been continuously adjusting their traditional functions, organization and role. The increasing influence of EU policy-making in the domestic arena − usually labelled as Europeanisation − redefined the scope and limits of national legislation, as well as the structure of political competition.

Parliaments have been often described as the 'late comers' and the 'losers' of European integration. However, the Treaty of Lisbon has somewhat rehabilitated their position, by allowing them to participate more effectively in the EU decision-making processes, up to the point of providing new parliamentary functions directly in the Treaties, which may pose problems in terms of inter-institutional balance both at the national and at the European level.

In particular, the current reform of the economic governance and the resurgence of intergovernmentalism request the active involvement of national parliaments in EU affairs aiming to preserve and possibly enhance the legitimacy of the European action and to control its outcomes. Such 'transformations' require to be studied in depth, aiming to assess if and how the interaction between parliaments and citizens, political parties, national and European bodies has changed.

This summer school untangles these issues and provides its participants with a map of the current state of the European Union democracy, under the perspective of the national parliaments, by looking at their election, organization, decision-making processes, inter-institutional relations, and, in the end, at their active contribution 'to the good functioning of the Union' (Art. 12 TEU).

Participants will be provided with knowledge and expertise that will allow them to understand and interpret the complex and fascinating role of these institutions. The need to combine theory with practice in understanding the future of Europe's democracy is reflected in the Faculty, which includes world-class academics and experienced officials from European and national institutions.

This Summer School has been awarded as a Jean Monnet module co-financed by the European Commission in 2013, 2014, 2015.

This intensive summer course is organized in cooperation with:

- LUISS Centre for Parliamentary Studies;
- CEUR Foundation;
- International Political Science Association (IPSA);
- SciencesPo; and
- ULB, Université Libre de Bruxelles.

June 25, 2014

Slovenia: a de facto failed constitutional democracy (Matej Avbelj)

Network member Matej Avbelj (Graduate School of Government and European Studies, Kranj, Slovenia) has posted this important piece on Verfassungsblog.  Given the need for broader dissemination and the high interest to readers of our blog as well, we are cross-posting here.

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The political and legal crisis in Slovenia has escalated further. The opposition leader was taken to prison on June 20 amid public protests and harsh critique waged by the most prominent Slovenian constitutional lawyers. The crisis is due to have huge impact on the fairness of the election, scheduled for July 13.  However, this does not seem to be of concern to the highest Slovenian courts.

On Monday June 16 the Constitutional Court rejected the petitioner’s constitutional complaint as premature, for failing to fulfill extraordinary legal remedies at the Supreme Court. The Court refused to apply Art 51 of the Constitutional Court Act, which exceptionally allows for a constitutional complaint prior to the exhaustion of all legal remedies if the alleged violation of human rights is manifest and if the petitioner is to suffer unrepairable consequences.

The Court ruled 6:3 that while the alleged violations of the petitioner’s rights were serious, they were not manifest, within the meaning of the Court’s judicial test, so to allow a direct review. This was opposed by three judges, writing for the minority, who have produced extremely critical dissenting opinions, unprecedented in the history of the Court, stressing that the violations of human rights were not only manifest, but were patent and flagrant and were violated in a trial that was manifestly unfair.

June 8, 2014

Mattias Kumm on the Constitutional Conflict between the European Parliament and the European Council after the European election: Why the Council is under a legal duty to propose Juncker as Commission President

Network member Mattias Kumm (NYU, WZB) has forwarded the post below, an English translation of a post that is currently available in German on the Verfassungsblog.

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There is a real possibility that the European Council might not propose Claude Juncker, the Spitzenkandidat who enjoys significant majority support in the European Parliament following the success of his party in the European elections. Suppose that as part of a comprehensive personnel package the Council proposed an external candidate as Commission President – whether Christine Lagarde or someone else.  Juncker lacks support with some Member States, they might argue, the British premier after having suffered at the hands of UKIP needs a victory, as does the French President after having been pummeled by the right wing nationalist Front National. 

Suppose that the European Parliament responds by respectfully rejecting the candidate. Voters were given a promise during the elections, parliamentarians might say, that they would only elect a successful Spitzenkandidat as a Commission President. It is imperative that they do everything in their power to ensure that voters understand that they have a reason to go and vote and take seriously the nominated Spitzenkandidaten in the European elections four years from now. That, however, requires them to stand by their promise, irrespective of the policy views and respectable qualities that any alternative candidate proposed by the Council might have.

This kind of stand-off amounts to a power struggle between the European Parliament and the European Council.  It is a power struggle with considerable constitutional policy implications. Does anyone doubt, that the power of the European Parliament would be significantly augmented in its relationship to the Council, if Parliament was effectively in the driving seat, when it comes to determining the Commission President? Does anyone doubt that under such a scenario in the next elections the choice of Spitzenkandidaten would be a high profile affair, that the political campaign would further change its character and that interest in European elections would go up? In the campaign this year the Spitzenkandidaten individually and collectively said to anyone who was willing to listen that it would all be different this time. But if this struggle will be won by Parliament, it would have been made clear and communicated effectively that everything is in fact different. On the other hand if the Council was able to effectively push through their favored candidate against the originally clearly expressed will of Parliament it would confirm all those who look at European elections with a combination of either jaded cynicism, disinterest or Eurosceptic fervor.

But irrespective of the policy-implications, how is such a power struggle to be assessed in legal terms?  Does the law have anything to say about it or is it best understood as a purely political conflict, to be decided by the tactics and strategy of the relevant political actors, responsive to their own constituents and the relevant publics? In the following I will argue that Art. 17 Sect VII does in fact impose obligations on the parties and that under present circumstances the European Council is under a legal obligation to propose Juncker as Commission President.

May 26, 2014

The American Academy in Berlin: Call for Applications for the Berlin Prize 2015-16

The American Academy in Berlin invites applications for its residential fellowships for 2015/16 as well as early applications for the academic years 2016/17 and 2017/18.

We will be accepting applications from May 15 until September 29, 2014. Applications may be submitted online or mailed to the Berlin office.

The Academy welcomes applications from emerging and established scholars and from writers and professionals who wish to engage in independent study in Berlin. Approximately 26 Berlin Prizes are conferred annually. Past recipients have included historians, economists, poets and novelists, journalists, legal scholars, anthropologists, musicologists, and public policy experts, among others. The Academy does not award fellowships in the natural sciences.

May 24, 2014

Henry Farrell and Abraham Newman: Forget Me Not: What the EU’s New Internet Privacy Ruling Means for the United States

Network member Abraham Newman (Georgetown) has published an article (with Henry Farrell of George Washington University) in Foreign Affairs which may be of interest to readers. The first two paragraphs are below and you may read the remainder here.


The modern innovators of Internet human rights are not U.S. leaders, or bold Silicon Valley entrepreneurs. They’re stodgy bureaucrats, politicians, and lawyers in Brussels, Berlin, and Strasbourg. As the National Security Agency (NSA) and American firms have relied on sucking up massive amounts of data to observe citizens and create and serve consumers, the European Union has fought to establish privacy rights for its citizens. Over the last ten years, however, the EU initiative seemed to be on the ropes as the United States pressed Europeans to water down privacy protections in a number of key sectors. But now, the tables are turned.

This month, the European Court of Justice, Europe’s closest equivalent to the Supreme Court, has ruled that Google must delete search results for a Spanish citizen that the citizen had found outdated and upsetting. The ruling obliges Google and other Internet firms to respect a limited version of the “right to be forgotten” --the right to have certain kinds of information, such as former debts or inappropriate photos, removed from the public sphere. The right will be enforced by national data protection authorities, for example the Federal Commissioner for Data Protection and Freedom of Information in Germany or the Information Commissioner in the United Kingdom, which can require e-commerce firms to remove embarrassing, misleading or outdated information about EU citizens where they think it appropriate. In its most extreme form, an individual could request that search engines remove all links to their name, making them virtually anonymous in the Internet. [continue reading here]

May 20, 2014

R. Daniel Kelemen and Anand Menon: Fight Club – When the EU’s Campaign Season Ends, The Real Political Battles Will Begin

Network member R. Daniel Kelemen (Rutgers) has published an article (with Anand Menon of King’s College London) in Foreign Affairs which may be of interest to readers.  The first two paragraphs are below and you may read the remainder here.
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It is the worst of times and the best of times for the European Union (EU). Support for European integration is at an all-time low. The continent’s economic recovery has been tepid at best. An entire generation in southern Europe has been scarred by youth unemployment rates ranging from 30 to 50 percent. Far-right and anti-EU parties are enjoying unprecedented levels of support in France, Greece, Hungary, the Netherlands, and the United Kingdom. Internationally, the EU has proved powerless to prevent Russian aggression in Ukraine. Internally, the EU has seemed equally incapable of arresting Hungary’s slide toward autocracy or halting the United Kingdom’s discussions about a possible exit. In short, the EU has rarely seemed feebler or less popular.

At the same time, however, the EU has managed to steer its way through the euro crisis, the greatest test in its six-decade history, while preserving the common currency and stabilizing the continent’s financial sector. Far from tearing the EU apart, as many had predicted, the crisis has enhanced Brussels’ authority over national economies in ways that would have been unimaginable five years ago. Internationally, Brussels has been leading ongoing negotiations with the United States over a remarkably ambitious trade deal.  And demonstrators in Kiev’s Euromaidan reminded the world of the continued allure of EU membership. Finally, despite recent decreases in public support for the EU, the most recent Eurobarometer survey shows that a majority -- 53 percent -- of European citizens remain confident about its future. [Continue reading here]

May 9, 2014

Registration Open: Workshop on Transnational Perspectives on Equality Law, Washington, DC (June 22-24, 2014)

The AALS Workshop on Transnational Perspectives on Equality Law is scheduled for June 22-24, 2014 in Washington, DC. Network member Julie C. Suk, (Cardozo School of Law) is part of the Planning Committee and will moderate two Plenary Sessions. Moreover, network member David Oppenheimer (Berkeley Law) will be one of the panelists. The Planning Committee's description of the workshop is below along with instructions for registration. Online registration can be found here.

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Association of American Law Schools

Workshop on Transnational Perspectives on Equality Law
June 22-24, 2014, Washington, DC (The Renaissance Mayflower Hotel)

Antidiscrimination law is an American invention that has spread all around the world.  During the American civil rights movement of the 1960s, antidiscrimination law promised radical social transformations towards equality for women and minorities in the workplace, in politics, and in education.  But recent developments in Equal Protection and Title VII doctrine have paralyzed this trajectory.  Meanwhile, the last decade has seen the unprecedented globalization of antidiscrimination law, as well as its expansion and alternative development outside the United States, catalyzed largely by the European Union's two directives in 2000, on race equality and on equal treatment in employment.  Over the last few years, a new body of equality law and policy experimentation has emerged not only in the EU and in European countries, but also in South Africa, Canada, Latin America, and Asia. There is a range of public policies adopted to mitigate the disadvantages of vulnerable groups such as racial, ethnic, and religious minorities, women, the disabled, the elderly, and the poor, constituting an "equality law" that goes beyond norms prohibiting discrimination.

At the same time, antidiscrimination law in the United States seems to be changing. U.S. Supreme Court decisions over the last several years (Ricci v. DeStefano, Parents Involved in Community Schools v. Seattle School District, Wal-Mart v. Dukes, and Shelby County v. Holder) have signaled the end of antidiscrimination law as envisioned by the civil rights movement in the United States.  In response, there is growing scholarly interest in finding new approaches to the persistent problem of structural inequality.  Comparative reflection is a productive tool, particularly when energy and optimism surrounds the trajectory of antidiscrimination law and equality policy outside of the United States.  Now that there is over a decade's worth of new antidiscrimination activity in the EU countries following the 2000 equality directives, the time is ripe for scholarly reflection and evaluation of these developments. From an intellectual, practical, and strategic perspective, antidiscrimination scholars in the United States can no longer ignore developments in antidiscrimination law in other countries.

While a growing number of American legal scholars are lamenting the limits of antidiscrimination law, the recent growth of this body of law outside of the United States has largely gone unnoticed. The central purpose of this mid-year meeting is to widen the comparative lens on U.S. equality law - its failures, its achievements, and its potential - across a variety of subject areas.  The meeting will provide a unique and much-needed opportunity to bring together scholars from various fields - constitutional law, employment discrimination law, comparative law, comparative constitutional law, election law, education law - to deepen and enrich the scholarship and teaching of equality.   The meeting will also provide a unique opportunity for U.S. scholars to interact with a wide, varied, and stimulating group of antidiscrimination scholars working around the world.

Additionally, law schools are increasingly making their curricula more transnational and comparative. This conference will assist teachers in integrating comparative perspectives to illuminate constitutional law, employment discrimination law, employment law, and other traditional subjects.

This Workshop will explore a number of critical questions including what is at stake in looking comparatively when doing equality law; how affirmative action is understood in other legal systems; understanding disparate impact, accommodation, and positive rights.  There will be discussions of religion, profiling, and equality and social movements.  Transnational perspectives on equality law will be a greater component of antidiscrimination scholarship going forward. This meeting should not be missed.

May 3, 2014

Kim Lane Scheppele: Making Infringement Procedures More Effective--A Comment on Commission v. Hungary, Case C-288/12 (8 April 2014) (Grand Chamber)

Network member Kim Lane Scheppele (Princeton) has posted an extended comment on EUtopialaw.com on the judgement of the CJEU Grand Chamber in Commission v. Hungary, Case C-288/12 (8 April 2014), which may be of interest to readers.  The first two paragraphs are below and you may read the remainder here.

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On 8 April, Hungary lost again at the Court of Justice of the European Union (ECJ). The European Commission had alleged that that Hungary violated the independence of its data protection officer and the ECJ agreed. The case broke little new legal ground.   But it is important nonetheless because it signals serious trouble within the EU.   The case exposes Hungary’s ongoing challenge to the EU’s fundamental principles. And it exposes the limitations of ordinary infringement proceedings for bringing a Member State back into line.

The Commission may have won this particular battle, but it is losing the war to keep Hungary from becoming a state in which all formerly independent institutions are under the control of Fidesz, the governing party.   The Commission clearly sees the danger of one-party domination and it has attempted to challenge the Hungarian government before. But the Commission has so far not picked its battles wisely or framed its challenges well. It could do better. The case of the data protection officer is a case in point. [continue reading here]