August 25, 2016

Dominik Steiger on Access to Social Benefits in the European Union

In this post, network member Dominik Steiger (Berlin) explores one of the most complex and controversial areas of EU law: access to social benefits.  Focusing on the apparent retreat from the aggressive position staked out by the Court in the Grzelczyk case, Steiger identifies and explores an apparent conflict between national solidarity and European identity.

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Cutting Back on Equal Access to Social Benefits for EU Foreigners: National Solidarity vs. European Identity

European solidarity and national identity alike have been put to the test during recent years, especially during the banking and state debt crisis. In these days, Europe was on the verge of breaking apart. Angela Merkel appeared to complain about “lazy Greeks” and Greeks marched in the streets showing pictures of her as a Nazi. It took many legal documents and even more late-night sessions in Brussels, but Europe managed to handle the crisis. It rescued the banking system and the states alike – and, at least for the time being, European solidarity prevailed, even if states had to give up on some of the principles that they like to think to form part of their national identity.

August 24, 2016

Book Announcement: Interparliamentary Cooperation in the Composite European Constitution (Nicola Lupo and Cristina Fasone, eds.)

Network member Nicola Lupo (LUISS), together with Cristina Fasone (also LUISS), have alerted us that their new edited volume Interparliamentary Cooperation in the Composite European Constitution has now appeared from Hart. Below is the publisher's blurb and more information, including the Table of Contents (noting several contributions by other network members), can be found here. Hart has graciously offered readers a 20 per cent discount if they choose to purchase (see here -- use code CV7 at checkout to get the discount).

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This collection analyses the place and the functioning of interparliamentary cooperation in the EU composite constitutional order, taking into account both the European and the national dimensions. The chapters join the recent scholarship on the role of parliaments in the EU after the Treaty of Lisbon.The aim of this volume is to highlight the constitutional significance of interparliamentary cooperation as a permanent feature of EU democracy and as a new parliamentary function as well as to investigate the practical side of this relatively new phenomenon. To this end the contributors are academics and parliamentary officials from all over Europe.

The volume discusses the developments in interparliamentary cooperation and its implications for the organisation and procedures of national parliaments and the European Parliament, for the fragmented executive of the EU, and for the democratic legitimacy of the overall EU composite Constitution. These issues are examined by looking at the European legislative process, the European Semester and the Treaty revisions. Moreover, the contributions take into account the effects of interparliamentary cooperation on the internal structure of parliaments and analyse the different models of interparliamentary cooperation, ie from COSAC to the new Interparliamentary Conference on Stability, Economic Coordination and Governance in the European Union provided by the Fiscal Compact.

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.


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.