July 29, 2015

New member blog (Hennette Vauchez & Vauchez): "Do You Law?" on Libération

New network members Stéphanie Hennette Vauchez (Paris-Nanterre) and Antoine Vauchez (CNRS/Paris 1) have a new blog on law on the French daily Libération that readers should check out.  Entitled Do You Law? Politque, Justice, Libertés, the blog explores "cette vie sociale et politique qui gît dans le droit."

In addition, we also wanted to alert readers that Antoine Vauchez was recently interviewed in Libé regarding the Eurozone crisis.  That interview -- «La BCE, la Commission et la Cour de justice doivent s’ouvrir au débat public» -- can be found here.

July 26, 2015

Piet Eeckhout on The Greek Crisis (and New EU Blog)

New network member Piet Eeckhout (UCL), who will be a Senior Emile Noël Fellow at the Jean Monnet Center at NYU in the fall, has asked us to announce his new blog on EU matters: London-Brussels One Way or Return.  His most recent post is entitled The Greek Crisis and the Dysfunctional European Political Space, which is cross-posted below.  In the post, Piet argues that in the debates surrounding the Greek crisis we may be witnessing the creation of a truly European political space, and that this development underscores the importance -- and the controversial nature -- of EU institutional reform.  The blog is available here.

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It has been sad to see the Greek crisis gathering pace, culminating in a Eurozone summit which, on condition of deep and intrusive reforms, allows Greece to remain in the Eurozone, and offers the perspective of another bailout.  But no one is under any illusions that the crisis is resolved.  It is clear that European integration has reached a very low point, judging by the acrimonious debates at all levels: official, media, and social media.

This post does not comment on substance but on process.  If there is a silver lining to the crisis it is, in my view, the birth of a European political space.  The long-living mantra that the EU suffers from a democratic deficit is well known.  It is coupled with a profound scepsis about the potential for ever narrowing, let alone removing, that deficit: there is no European demos, only demoi.  Democracy continues to be embedded in the nation-State, a conception most extensively articulated by the Bundesverfassungsgericht (German Constitutional Court) in its Maastricht and Lisbon judgments.  To put it in less elevated terms: all politics are local.  The EU’s main top-down attempt at instituting democracy at the EU level is tentative and has not worked well: the directly elected European Parliament is not a full sovereign parliament and its elections do not manage to transcend the local nature of State politics.  The democracy sceptics consider that all this is evidence that there can be no real EU-wide political space. Notwithstanding decades of – one would almost forget – largely successful European integration, we all continue to live in countries which are too diverse to enable us all to engage in genuine European political debate.  There is no European political space.

Or is there?  For anyone who has followed the Greek crisis (and has not nearly everyone, to some degree?) it is difficult to deny that we have seen and are seeing a genuine European debate.  It is a moral debate, about who is right and who is wrong; it is an economic debate, about the merits and flaws of the euro-project and of austerity policies; it is a social debate, about protection of people and solidarity; and it is a hard-core politics debate, on left and right, and on power structures.  That is not to say that there is no national dimension to the debate.  Views are clearly very different between creditor States and bail-out States, or, to simplify, between North and South.  Indeed, the debate is way too nationalist in many ways. But a European debate it nonetheless is.

Rob Howse on The Greek Debt Deal

Friend of the network Rob Howse (NYU) has posted a provocative piece on the Greek crisis at the International Economic Law and Policy Blog and Verfassungsblog.  Entitled The Deal on Greek Debt: Political Gamechanger for Europe, Tactical Retreat (not Surrender) by Tsipras, the post argues that the course of action pursued by the Greek government has -- contrary to much of the press coverage -- been a strikingly successful tactical response to an "almost impossible" situation.  An excerpt from the post is below; the full version is available here or here.

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The conventional wisdom, delivered before anyone could really ponder the fine print of the Greek debt deal, is that Tsipras surrendered to the creditors in a humiliating defeat.  His referendum and prior tenacity in negotiations proved futile,according to the predominant account that has emerged in the media and the twitter and blog worlds.

Wrong on all counts.  And here's why.

It is well-understood that Greece's debt is un-repayable under any plausible economic scenario.  But this is the reality that many European politicians cannot admit candidly in public, above all, Germany's politicians.  With the imminent expiry of the last bailout program, Greece was faced with the predicament that, on the one hand, without more assistance, its banking system would collapse, yet a further bailout would do nothing meaningful to address the sustainability of its debt burden. At the same time, to distract their voters/taxpayers from the reality of the un-repayability of the debt the politicians, again above all Germany's, had to punish Greece, blaming its bad behavior for the crisis and imposing ever more onerous if irrational conditions.  For the German political leaders, the calculation was that the people's satisfaction from seeing Greece punished and humiliated would be an effective Ersatz for the satisfaction of being repaid. (I will make no comment as to whether the politicians here rightly gauged the national character).  Varoufakis and his colleagues were correct to see that at some point for the Germans, this exercise would only remain politically effective if Greece were given the ultimate punishment-removal from Europe.  For Schaueble, the German Finance Minister, nothing was more appealing than the cleansing or purifying Europe of  Greeks.  The Greek Government knew that, once there was no longer a European community of fate fully including Greece,a profound geopolitical reorientation would be needed for Greece's economic and social survival.

Given Germany's leadership position in Europe, and effective veto on any positive solution, the Tsipras Government was faced with an almost impossible situation as the second bailout drew to a close.  The only at all hopeful strategy  was to try to change the longer term political dynamics so that debt unsustainability could finally be faced and directly addressed, and German influence somehow marginalized-but how to do so without courting short-term disaster?

The post continues here and here.

July 20, 2015

Job Opportunity: Tilburg Law School Hiring Two Tenure-Track Assistant Professors

Network member Anne Meuwese (Tilburg) has asked us to pass on an announcement regarding two academic vacancies at Tilburg Law School.  The announcement is below, and further details can be obtained from Anne or here.

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The Department of Public Law, Jurisprudence and Legal History at Tilburg Law School has vacancies for two assistant professors, one in the field of History of International Law and another in the fields of General Jurisprudence/Constitutional Law.

Further information can be obtained here.  The application deadline is September 13, 2015, and the first round of interviews will be held in late September. Envisaged starting date January 1, 2016, but negotiable.

July 19, 2015

OMT Forum: Whatever It Takes -- But Not Too Much (Pietro Faraguna, NYU & Trieste)

In this post, new network member Pietro Faraguna (NYU & Trieste) offers a perspective on the interplay between the concepts of limits and limitlessness in the recent OMT decision.

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The Outright Monetary Transactions (OMT) program of the European Central Bank (ECB) is compatible with EU law.  Also sprach the Court of Justice (ECJ).

The outcome of the ECJ decision in the Gauweiler case comes as no surprise. It is probably the most cautious option that the ECJ could have chosen: the ECB’s authority is safe at the European level and at the same time the Federal Constitutional Court of Germany (BVerfG) has been offered many reasons to be able to sell the ECJ’s decision as a half—if not full—German victory. Concisely, the decision is a masterpiece of judicial diplomacy!

But let’s take a step back in the OMT saga. The OMT program had been announced by the Governing Council of the ECB in the framework of the financially hot summer in 2012, when the permanence of the euro had been questioned by the markets. The ECB’s response to that financial turmoil had been its well-known “whatever it takes” doctrine. “Within our mandate, the ECB is ready to do whatever it takes to preserve the euro. And believe me, it will be enough” said the ECB’s President, Mario Draghi, on July 26 2012 (reported here). The announcement of OMT was a piece of this whatever-mosaic. “Whatever it takes,” even though “within our mandate,” plainly signaled a no-limits approach from the ECB. And the limitlessness of the ECB intervention was one of the biggest matters of concern in the “German view”. A no-limits approach raised the prospect of unpredictable losses and unpredictable consequences for the Member States’ budgets.

Now let’s take now one step forward to the decision of the ECJ. What is left of the limitlessness of Draghi’s doctrine? Not so much.

July 17, 2015

The Greek Crisis: Commentary by Nicolaïdis, Kelemen, Müller, and Ackerman

As the fast-moving Greek crisis moves into a new phase, we wanted to alert readers that several network members have been active commentators on the crisis to date.  On the eve of the referendum, Kalypso Nicolaïdis (Oxford), together with Othon Anastasakis, posted "YES, for our dignity" on the Britain & Europe website. In Foreign Affairs, Dan Kelemen (Rutgers) published "Allegory of the Caving: A New Deal for Greece?"  Also in Foreign AffairsJan-Werner Müller (Princeton) published "The Merkel Method: Germany and the Greek Crisis".  Additionally, friend of the network Bruce Ackerman (Yale), published "Germany's Failure of Vision" in the New York Times.  Please let us know of other items so we can bring them to the attention of Europaeus readers.

June 27, 2015

Peter Swire on the USA Freedom Act and European Concerns about NSA Surveillance

Network member Alasdair Young (Georgia Tech) has alerted us to the publication of the first Working Paper from Georgia Tech's Jean Monnet Center, entitled "The USA Freedom Act: A Partial Response to European Concerns about NSA Surveillance," and authored by privacy expert Peter Swire (Georgia Tech).  Alasdair's announcement is below; the full text is available here.

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Georgia Tech’s Jean Monnet Center of Excellence is proud to announce the publication of its first working paper, written by Center member and Huang Professor of Law and Ethics at the Georgia Tech Scheller College of Business and Senior Counsel at Alston & Bird LLP Peter Swire.  Swire, who served on President Obama’s Review Group on Intelligence and Communications Technology and who, under President Clinton, helped to negotiate the U.S.-E.U. Safe Harbor agreement for trans-border data flows, reflects on how recent changes in U.S. surveillance policy, including the 2015 USA Freedom Act.  He contends that the Act, to a significant extent, reflects recommendations suggested by the Review Group. It also follows on from a series of pro-privacy reforms adopted by the Administration.  Collectively, Swire argues, these reforms go a considerable way towards addressing European concerns about U.S. surveillance practices, although there is still a considerable way to go.  The USA Freedom Act, although focused on domestic surveillance, provides encouragement that U.S. surveillance policy will continue to be reformed in a pro-privacy direction. The working paper is available at: http://inta.gatech.edu/jmce/working-papers.

June 25, 2015

OMT Forum: Alicia Hinarejos on 'Gauweiler' and the legality of the OMT programme

Network member Alicia Hinarejos (Cambridge) has passed on this new contribution to our OMT Forum, which originally appeared on EU Law Analysis and which we are cross-posting here by permission.

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On the 16th of June the Court of Justice delivered its decision in the Gauweiler case, concerning the legality of the Outright Monetary Transactions (OMT) programme of the European Central Bank (ECB). The Court considered the programme compatible with EU law. The decision has important implications for the powers of the ECB, the constitutional framework of the EU’s Economic and Monetary Union, and for the relationship between the Court of Justice of the EU and the referring court, the German Federal Constitutional Court. This was the first time that the German court asked for a preliminary ruling, and it remains to be seen whether the reply given by the Court of Justice will be to the national court’s liking.


The ECB is in charge of conducting monetary policy for the euro area and its role is very narrowly defined in the Treaties. This role, however, has evolved and expanded substantially in recent years, as the ECB has announced or adopted various ‘non-standard’ measures in response to the euro area sovereign debt crisis. The OMT programme is one of these measures: it was announced in September 2012 in a press release and, so far, it has never been used.

The idea is that the ECB will buy government bonds from euro countries in trouble, i.e., when nobody else buys these bonds, or their yield is becoming so high that the Member State will not be able to cover interest payments on newly issued bonds, thus having no more access to credit and risking default. Crucially, the Treaty prohibits the ECB from acquiring government bonds directly (Art 123 TFEU) as this would amount to monetary financing, or becoming a direct lender of last resort to a Member State. Instead, the ECB would buy government bonds in the secondary market—that is, from a party that has bought these bonds first from a Member State—rather than from a Member State directly. While the ECB has already done this before, with the OMT programme there would be an added formal element of conditionality, as the Member State in question would need to obtain financial assistance from the European Stability Mechanism or the EFSF and comply with its conditions (i.e. macroeconomic reforms negotiated between the Member State and the troika: the Commission, the ECB, and the IMF).

The applicants before the German Court argued that the ECB had overstepped its Treaty role by creating a programme that should be viewed as a tool of economic, not monetary, policy; it was also alleged that the programme violated the prohibition of monetary financing. In an exercise of ultra vires jurisdiction, the German Constitutional Court’s preliminary response was to consider the OMT programme illegal under EU law. For the first time ever, the national court then referred the case to the CJEU. In the referring court’s view, the Court of Justice might either declare the OMT scheme contrary to EU law, or provide a more limited interpretation of the programme that is in accordance with the Treaties. The German Court provided certain indications as to what those limits should be, and it went on to state that whether the OMT scheme could eventually be held to violate the constitutional identity of the German Basic Law would depend on the CJEU’s interpretation of the scheme in conformity with EU primary law.

The case was sensitive for various reasons: although not yet used, the mere announcement of the OMT scheme played an important role in getting the euro area out of the acute phase of the crisis, and offers a credible defense against similar future scenarios. A declaration of illegality, or the placing of substantive limits on the programme, could have jeopardised post-crisis recovery. Additionally, the reference was the first ever submitted by the German Constitutional Court, and its tone was quite bold; there was, and is, clear potential for conflict between the two courts, with consequences unknown for EMU. Moreover, the case touches on the nature and legitimacy of the role of the ECB as an independent expert, and on the dichotomy between the original, rule-based conception of EMU and the evolving, more policy-oriented EMU that rose out of the crisis.

June 24, 2015

OMT Forum: Herwig Hofmann on the CJEU's Response to the BVerfG in 'Gauweiler'

New network member Herwig Hofmann (Luxembourg) has posted a working paper on SSRN entitled 'Gauweiler and OMT: Lessons for EU Public Law and the European Economic and Monetary Union'. Herwig has graciously agreed to post a condensed version of the paper's argument here, as part of a forum on the OMT dispute before both the German Constitutional Court, the Bundesverfassungsgericht (BVerfG), and the Court of Justice of the European Union (CJEU). We hope to have additional contributions to the forum in the coming days.

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Do exceptional situations make exceptionally good or exceptionally bad law? This is an old question often asked anew – especially in the context of the post-2008 economic crises travails of the European Economic and Monetary Union (EMU). The legal disputes which resulted from differing opinions about how to solve the crises and also how, incidentally, to improve the EMU’s governance have reached the Court of Justice of the European Union (CJEU). The most prominent case to date is the so-called Gauweiler case, a preliminary reference procedure initiated by the German Constitutional Court, the Bundesverfassungsgericht (BVerfG). I discuss this case in more fully argued working paper available on SSRN, 'Gauweiler and OMT: Lessons for EU Public Law and the European Economic and Monetary Union'.

Gauweiler concerns the legality of the decision of the Governing Board of the European Central Bank (ECB) of September 2012 on so called ‘Outright Monetary Transactions’ (OMT). This case is significant for legal integration in the EU since, although it is the first instance in which the German BVerfG has ever taken advantage of the preliminary reference procedure (Article 267 TFEU), the reference by the BVerfG was formulated in very terse words. Essentially, the reference asks for clarification about the legality of the ECB’s OMT decision. But that reference is not formulated in terms of a dialogue between Courts, each respecting the other’s distinctive powers. Instead, the BVerfG explains why it considers the ECB’s decision to be ultra vires of its mandate and asks the CJEU essentially to confirm this interpretation warning about potential consequences in its assessment of the ‘constitutional identity’ of the Federal Republic of Germany. Inherent in the reference is a thinly veiled threat not to accept the exclusive competence of the CJEU to review the legality of EU law and, instead, to unilaterally hold an act of an EU institution to be invalid within a Member State of the EU. The BVerfG reinforced its sceptical position of the primacy of EU law over the law of Member States by recalling in its decision for preliminary reference its case-law concerning the limits it perceives are set for the Federal Republic of Germany’s integration in the European Union. In its decision, it refers to and further interprets the scope of its own case-law making reference inter alia to its judgments concerning the Treaty of Maastricht, the Treaty of Lisbon and in Honeywell, as precedent for its questions to the CJEU.

This approach to formulating the preliminary ruling, a legal obligation for any court of a Member State of the EU ‘against whose decisions there is no judicial remedy under national law’ (Article 267 para 3 TFEU) can therefore not be seen as a long overdue normalisation of the relations between the CJEU and the BVerfG. The BVerfG as one of the last remaining constitutional courts of Member States instead of simply complying with its clearly defined obligations under the Treaties to submit in adequate cases questions for preliminary reference. Rather, it is formulated as ‘last warning’ by the BVerfG after which, if the CJEU does not fall in line with its approach, it would consider to radically challenge the constitutional order of the EU and, in effect, questioning the Union’s very existence as a constitutional order.

June 22, 2015

Book Announcement: Terence C. Halliday and Gregory Shaffer, eds., Transnational Legal Orders (Cambridge 2015)

Network member Gregory Shaffer (UC-Irvine) has alerted us that his new collective volume, edited together with Terence Halliday (ABF), entitled Transnational Legal Orders, is now out from Cambridge University Press.  The publisher's blurb is below and more details can be found here.

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This book offers a path-breaking, empirically grounded theory that reframes the study of law and society. It shifts research from a predominantly national context to one that places transnational, national, and local lawmaking and practice within a single, coherent, analytic frame. By presenting and elaborating a new concept, transnational legal orders, Halliday and Shaffer present an original approach to legal orders that affect fundamental economic and social behaviors. The contributors generate arrays of hypotheses about how transnational legal orders rise and fall, where they compete and cooperate, and how they settle and unsettle. This original theory is applied and developed by distinguished scholars from North America, Europe, and Asia in business law (taxation, corporate bankruptcy, secured transactions, transport of goods by sea), regulatory law (monetary and trade, finance, food safety, climate change), and human rights law (civil and political rights, rule of law, right to health/access to medicines, human trafficking, criminal accountability of political leaders).