Call for Papers: Inaugural Annual European Junior Faculty Forum (Berlin, June 28-29, 2017)

Network member Mattias Kumm (NYU, WZB Social Science Research Center, and Humboldt) has written to share a call for papers for the European Junior Faculty Forum on June 28-29, 2017, at the WZB Berlin Social Science Center.  Note that the deadline for submissions is April 15, 2017.

A summary and link to the Call for Papers can be found below; the original notice can be found here.

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The WZB Berlin Social Science Center, the European University Institute and the London School for Economics and Political Science invite submissions for the Inaugural Annual European Junior Faculty Forum for Public Law and Jurisprudence to be held at WZB Berlin Social Science Center on June 28-29, 2017.

The forum intends to address public law scholarship from a theoretically informed doctrinal, interdisciplinary and comparative perspective, contribute to the research of junior scholars, and create an intellectual community of European public law scholars. Public Law focused scholarship from other disciplines (philosophy, political science, history, sociology) is explicitly welcome.

The forum brings together a selected group of early career scholars for what promises to be an intellectually rewarding academic exchange. The papers, selected based upon blind peer-review, will be commented on by two senior scholars.

The author must be based in an academic institution in the European Union or in an Associated Country and have obtained the doctoral degree no longer than seven years prior to the application deadline.

For details see the Call for Papers.

Questions about the European Junior Faculty Forum for Public Law and Jurisprudence as well as submissions should be sent to Professor Mattias Kumm’s office via ejff [at] wzb.eu.

Deadline for Submissions: April 15, 2017

Decisions will be sent by May 15, 2017.

The workshop will be held on June 28-29, 2017 in Berlin at the WZB Berlin Social Science Center.

Maciej Kisilowski (CEU) on the "moment of truth" in Poland's constitutional dispute

Network member Maciej Kisilowski (CEU) has a new piece in EUObserver entitled "Moment of truth for Poland in constitutional dispute".  The opening passages are below and the remainder can be read here.

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The ruling Law and Justice (PiS) party in Poland suffered two major setbacks this week.

On Wednesday (9 March), the nation’s Constitutional Tribunal declared a sweeping amendment limiting the tribunal’s powers to be unconstitutional.

On Friday, the Venice Commission, an advisory body to the Council of Europe in Strasbourg, issued a powerful concurrence. Like the Polish court, it did not find a single major provision of the amendment, passed by PiS last December, consistent with European principles of democracy and the rule of law.

The twin decisions bring about a moment of truth for PiS. The party can either retreat from its overreach and try to implement its reform agenda within the current constitutional framework or set Poland on the path to authoritarianism.

Warsaw’s international partners should strongly support the moderate course without risking their own “liberal overreach”.

[continue reading here]

Brexit or Bremain?

On on Friday, February 12, NYU's Jean Monnet Center  held a discussion entitled "Brexit or Bremain? Britain’s fraught relationship with the EU."  The featured speaker was former UK cabinet minister and Shadow Chancellor Ed Balls, with commentary from network members Dan Kelemen and Peter Lindseth. Network member Thomas Streinz (NYU) has provided us this overview and commentary of what turned out to be very lively exchange.

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Last Friday, the Jean Monnet Center for International and Regional Economic Law & Justice at NYU School of Law hosted a lunch talk with Ed Balls, now a Senior Fellow at Harvard’s Kennedy School, but formerly Cabinet Minister and Shadow Chancellor for the British Labor Party and hence an insider of British politics. The capacity audience in the lounge of 22 Washington Square North witnessed a live performance by a political mastermind as Balls disentangled historic path dependencies, cultural differences, and political rationales to explain the ‘awkward relationship’ between the UK and the EU. Against the backdrop of the ongoing negotiations for a new settlement between the UK and the EU on the basis of which the British electorate will vote either to leave the EU (‘Brexit’) or to stay (‘Bremain’), Balls argued forcefully for the UK to stay in the EU to avoid losing both influence and prosperity. He has made the argument in more detail in an article for the Wall Street Journal. Based on current polling data, he predicted a close referendum with the ‘Bremain’ side keeping the upper hand.

The initial reactions by the two discussants Daniel Keleman and Peter Lindseth sparked an interesting debate.

Turkuler Isiksel on "Europe's Functional Constitution" at NYU's Jean Monnet Center (November 20, 2015) (RSVP required)

We are pleased to pass along to the network an invitation from NYU's Jean Monnet Center to join a celebration on Friday November 20, 2015, of a forthcoming book from network member Turkuler Isiksel (Columbia & currently Emile Noël Fellow at NYU): "Europe's Functional Constitution: A Theory of Constitutionalism Beyond the State" to be published by OUP in 2016.  

Turku will give a presentation on her forthcoming book; network members Joseph Weiler (EUI & NYU), Piet Eeckhout (UCL & currently Senior Emile Noël Fellow at NYU), and Daniel Francis (NYU), along with friend of the network Jan Klabbers (Helsinki & currently Senior Emile Noël Fellow at NYU), will comment.  Network member Gráinne de Búrca (NYU) will moderate the session.

Details follow; please note the RSVP request to jeanmonnet@nyu.edu.

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Europe's Functional Constitution: A Theory of Constitutionalism Beyond the State

On Friday, November 20, 2015 at 12:30-2:00PM (lunch served from 12:00PM) the Jean Monnet Center will host Turkuler Isiksel‘s presentation of her forthcoming book Europe’s Functional Constitution: A Theory of Constitutionalism Beyond the State (coming out with OUP's Constitutional Theory series in 2016).

Commentators: Joseph Weiler, University Professor, NYU; President of EUI; Piet Eeckhout, Professor of EU Law, University College London; Senior Emile Noël Fellow, NYU School of Law, 2015-16, Johannes Klabbers, Professor of International Organizations Law, University of Helsinki; Senior Emile Noël Fellow, NYU School of Law, 2015-16, and Daniel Francis, JSD candidate, NYU School of Law.

Moderator: Gráinne de Búrca, Florence Ellinwood Allen Professor of Law, Faculty Director, Hauser Global Law School and Jean Monnet Center for International and Regional Economic Law & Justice.

Location: 1st Floor Lounge, 22 Washington Square North, New York, NY 10011.

Please kindly RSVP by email to jeanmonnet@nyu.edu if you would like to attend.

Herwig Hofmann on the Schrems Decision

Few recent decisions of the Court of Justice have attracted as much comment -- or controversy -- as the Schrems decision on the data protection "safe harbor."  As part of our ongoing series of posts regarding the case, we are delighted to publish here an analysis and comment by network member Herwig Hofmann (Luxembourg).  Herwig's perspective is of particular interest, as he represented Max Schrems before the Court of Justice in the case.  In the post below, he explores some of the broader implications of the decision.

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The Essence of EU Fundamental Rights and their Global Reach 

Herwig C.H. Hofmann[1]

The CJEU ruling in Schrems v Data Protection Commissioner[2] will be subject to many discussions on constitutional matters for the time to come. It is a landmark case not only for clarifying and applying the basic conceptual understanding of fundamental rights in the EU. The Schrems case clarifies therein many further aspects of conditions for effective protection of a right, supervision by Member State authorities as well as the global reach of EU fundamental rights, at least regarding information rights and their protection. As is typical for many essential developments in public law, these developments originate from the very specific structural and substantive context of a specific policy area’s administrative law details. But the consequences will radiate also into debates on pluralism of multi-level legal orders in an inter-connected world.

The background to Schrems v DPC is as follows: Supervision of compliance with EU data protection rules takes place by national authorities vested with “complete independence”[3] within the territory of each Member State. Transfer of data from the EU to a third country is possible only if that country has an “adequate level” of data protection, a fact the European Commission may certify by means of a decision.[4] In 2000, the Commission had taken an adequacy decision with respect to the United States of America, a decision became known as the “Safe Harbour Decision”.[5] The Court of Justice of the European Union (CJEU) had the opportunity to review the compliance of the various elements of the data protection regime, especially the conditions of the Commission decisions declaring a third country to maintain an adequate level of protection, upon request for preliminary reference by the High Court of Ireland in a judicial review procedure of a decision of the Irish Data Protection Commissioner (DPC) not to accept a complaint about Facebook Ireland transferring personal data to Facebook servers in the US.

Europe's Justice Deficit? (Debate at LSE, June 4, 2015)

Network member Gráinne de Búrca (NYU) has sent us the following account, which also appears on EUtopia here, of a debate on Thursday June 4, 2015 at the London School of Economics, between Justice Giuliano Amato of the Constitutional Court of Italy (former Italian Prime Minister) and Professor Christian Joerges (Hertie School of Governance).  The debate marked the publication by Hart Publishing of a new collection of essays on “Europe's Justice Deficit?" (available here), edited by Dimitry Kochenov, Gráinne de Búrca and Andrew Williams.  

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Christian Joerges launched the debate by reflecting on the EU’s origins, and on the strong influence of German ordo-liberal economic theory in the creation and design of the European Economic Community.  He described an ordo-liberal legal framework as one which “privileges and constitutionalizes a private-law society”; and which treats as “just” whatever a system of undistorted competition delivers.  He asked the audience whether the EU’s institutional design and its ordoliberalism-inspired “integration through law” agenda has been an obstacle to the pursuit of justice instead of a means of fostering it.  Citing the various challenges which have been made to this ordo-liberal vision by writers such as Fritz Scharpf, Jürgen Habermas and Wolfgang Streeck, he emphasized the democratic and social embeddedness of markets and their dependence on other institutions for their capacity to deliver justice, and doubted whether the EU in its current form has that capacity.  Moving on to the writings of John Rawls and Thomas Nagel on the scope of justice, and on the difficult question of whether “justice between states,” and particularly any form of redistributive justice, is really possible, he posed the question: “what are the Greeks entitled to expect from the Germans?”  The EU is better understood, he suggested, in terms of “inter-democracy” (to use a term derived from Daniel Innerarity’s work, here) rather than being thought of as itself a democratic system.

On the current crisis, with its politics of austerity and governance-by-troika, Joerges argued that the kind of interventionist European economic and financial management we have seen in recent years is actually far removed from the ordo-liberal vision, in its reliance on discretionary power rather than justiciable rules.  Finishing on an understandably gloomy note, he suggested that while the EU’s crisis management may well destroy southern European economic cultures, the social and institutional resistance of these cultures means that it will nevertheless be unable to replace them with some other top-down model of economic governance.

Book Announcement: Alicia Hinarejos, The Euro Area Crisis in Constitutional Perspective (OUP 2015)

Network member Alicia Hinarejos (Cambridge) has just published a new book with OUP.  Entitled The Euro Area Crisis in Constitutional Perspective, the book provides a comprehensive treatment of the complexities of European Economic and Monetary Union, and an account of the recent tribulations of the eurozone in the light of the key constitutional issues for the Union and the Member States alike.  The publisher's blurb is below; further information is available here.

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The euro area sovereign debt crisis has been the greatest threat to the euro since its inception, but the consequences of the crisis go well beyond the realm of macroeconomics: the crisis has cast doubt on the viability of a mechanism of integration such as the one envisaged in Economic and Monetary Union ("EMU"), and on the future of the European Union as a political project in the face of citizens' growing disaffection. The various responses to the crisis have not only altered the principles underlying EMU; they have also had a profound impact on the constitutional orders of the EU and its Member States.

This book focuses on the euro area crisis and its aftermath from a constitutional perspective. It provides a critical analysis of the workings and evolution of Economic and Monetary Union, the changes brought by the crisis and their broader effects, and the constitutional obstacles to integration in this area. Looking forward, it tackles the uncertain future of economic and fiscal integration and the challenges posed. This is a compelling and incisive account of some of the most significant developments and dilemmas facing the European Union since its creation.

[Change of Time] Justice Breyer to Lecture at Paris-Nanterre, Wednesday, April 15, 16:00

Friend of the network Myriam Benlolo-Carabot (Paris-Nanterre) has asked us to let readers know that Justice Stephen Breyer's lecture on Wednesday, April 15 at the law faculty of the Université Paris Ouest Nanterre La Défense will now take place at 16:00 (rather than 15:00 as originally scheduled).  The talk is entitled "The Court and the World".  More information, including location details, can be found here as well as on the flyer is below.

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Book Announcement: Kathleen Gutman, The Constitutional Foundations of European Contract Law (OUP 2014)

Network member Kathleen Gutman (KU Leuven) has alerted us to the appearance of her new book from OUP, The Constitutional Foundations of European Contract Law: A Comparative Analysis.  The publisher's blurb is below and more information can be found on the OUP website here.

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Situated within the context of the ongoing debate about European contract law, this book provides a detailed examination of the European Union's competence in the field of contract law. It analyses the limits of Union competence in relation to several relevant Treaty provisions which potentially confer competence on the Union to adopt a comprehensive contract law instrument and the exercise of Union competence in connection with the operation of the principles of subsidiarity, proportionality and sincere cooperation. It also explores the viability of several alternative and complementary routes to the adoption of such an instrument, including enhanced cooperation, an intergovernmental treaty and certain American techniques. Setting forth an elaborate account of the context for this debate and its chronological development at the European level, this book charts the discussions relating to the European Union's competence to regulate contract law and offers a comparative analysis of the approach taken to the approximation of contract law in the American setting. Setting forth a detailed account of the context for this debate and its chronological development at the European level, the book charts the discussions that have occurred within and outside the EU relating to the transnational competence to regulate contract law. Situating European constitutional law within the continued debate about European contract law, it also reflects upon the contract law structure of the United States and examines the viability of alternative and complementary routes to the adoption of a comprehensive instrument of substantive contract law.

Book Announcment: Klemen Jaklic, Constitutional Pluralism in the EU (OUP)

Many of you may already know that network member Klemen Jaklic (Harvard) has a book out from OUP, Constitutional Pluralism in the EU.  What you may have overlooked was that it just received a very nice end-of-year review from Joseph Weiler (EUI) on EJIL: Talk, who called it "an important and tremendously useful book."  For readers seeking to learn more, the publisher's blurb is below and more information (including a downloadable Chapter One), can be found here.

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Where does the law and political power of any given territory come from? Until recently it was believed that it came from a single and hierarchical source of constitutional authority, a sovereign people and their constitution. However, how can this model account for the new Europe? Where state constitutions and the European Constitution, which are ultimately equally self-standing sources of constitutional authority, overlap heterarchically over a shared piece of territory.

Constitutional pluralism is a new branch within constitutional thought that argues sovereignty is no longer the accurate and normatively superior constitutional foundation. It instead replaces this thought with its own foundation. It emerged on the basis of contributions by the leading EU constitutionalists and has now become the most dominant branch of European constitutional thought. Its claims have also overstepped the European context, suggesting that it offers historic advantages for further development of the idea of constitutionalism and world order as such.


This book offers the first overarching examination of constitutional pluralism.Comprehensively mapping out the leading contributions to date and solving the complicated labyrinth they currently form, Klemen Jaklic offers a complete assessment against existing and new criticisms while elaborating his own original vision. Constitutional pluralism thus refined has the potential to rightfully be considered the superior new approach within constitutional thought.

National Constitutional Rights as a Limit on the Application of European Law in Integration's Early Decades (Will Phelan)

Network member Will Phelan (Trinity College Dublin) has let us know about a new article entitled "The Limited Practical Relevance of National Constitutional Rights as a Constraint on the National Application of European Law in the Early Decades of European Integration". The article is available from the Irish Journal of European Law and can be downloaded in full here. An abstract is below.

Scholarship on the early development of the supremacy of European law has frequently been dominated by discussion of the possibility that a directly effective European law obligation would not be applied in the national legal order because it violated a national constitutional law fundamental right, as discussed, for example, in the Frontini and Solange decisions of the Italian and German Constitutional Courts. This paper argues that such a possibility should instead be seen as of limited practical relevance. This claim is supported by early scholarship on the application of European law in the national legal orders and by the practice of constitutional review of laws giving execution to treaty obligations in Denmark, Ireland, Italy and Germany, including the German Constitutional Court’s 1955 decision on the Saar Statute. Two conclusions are drawn from this discussion. First, scholarship examining the development of European law supremacy in relation to national constitutional law fundamental rights in particular should be situated within the context of the flexible and politically sensitive approach to adjudication demonstrated by Europe’s national courts in their decisions on potential conflicts between constitutional rights and international legal obligations. Second, scholarship offering a general explanation of the development of the supremacy of European law should not focus on the national constitutional rights question to the exclusion of a thorough examination of national law solutions to European law’s lex posterior problem. 

The Network on SSRN: Erin Delaney on "Judiciary Rising: Constitutional Change in the United Kingdom"

Network member Erin Delaney (Northwestern) has posted a new piece on SSRN, entitled "Judiciary Rising: Constitutional Change in the United Kingdom."  The article is forthcoming from the Northwestern University Law Review.  The abstract is below and the full article may be downloaded here.

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Britain is experiencing a period of dramatic change that challenges centuries-old understandings of British constitutionalism. In the past fifteen years, the British Parliament enacted a quasi-constitutional bill of rights; devolved legislative power to Scotland, Wales, and Northern Ireland; and created a new Supreme Court. British academics debate how each element of this transformation can be best understood: is it consistent with political constitutionalism and historic notions of parliamentary sovereignty, or does it usher in a new regime that places external, rule-of-law-based limits on Parliament? Much of this commentary examines these changes in a piecemeal fashion, failing to account for the systemic factors at play in the British system.

This Article assesses the cumulative force of the many recent constitutional changes, shedding new light on the changing nature of the British constitution. Drawing on the U.S. literature on federalism and judicial power, the Article illuminates the role of human rights and devolution in the growing influence of the U.K. Supreme Court. Whether a rising judiciary will truly challenge British notions of parliamentary sovereignty is as yet unknown, but scholars and politicians should pay close attention to the groundwork being laid.

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.

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.

Call for Papers (Deadline Mar 9, 2014): What Form of Government for the EU and the Eurozone?

We are pleased to pass on the call for papers for a new Conference to be organized at Tilburg Law School on June 5-6, 2014. The Conference is entitled "What Form of Government for the EU and the Eurozone?" and one of the lead participants is network member Dan Kelemen. The announcement is below and can be found in PDF form here, 

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What Form of Government for the European Union and the Eurozone?

Venue: Tilburg Law School, Tilburg, the Netherlands

Dates: June 5-6, 2014

Organizers: Federico Fabbrini, Han Somsen on behalf of Tilburg Law School

The debate about the institutional reforms of the European Union (EU) generally, and of the Euro-zone specifically, has recently acquired a new impetus. The Euro-crisis and the constitutional responses to it have profoundly modified de facto and de jure the institutional architecture of the EU designed by the Lisbon Treaty, and a number of influential road-maps have been advanced at the highest level of policy-making to trace the way forward for the EU. The purpose of this Conference is to examine from a comparative constitutional perspective the form of government of the EU and to discuss the prospects of integration and institutional reform in the Eurozone and the EU at large.