June 24, 2016

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

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

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

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

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

June 22, 2016

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

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

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

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

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

June 14, 2016

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

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

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

Background

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

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

May 20, 2016

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

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

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

May 18, 2016

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

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

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

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

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

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

May 13, 2016

Amedeo Arena on Competences and Pre-emption in the EU

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

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

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

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

The article continues here.

April 4, 2016

Dan Kelemen on "Europe's Lousy Deal with Turkey"

Network member Dan Kelemen (Rutgers) has recently published an article in Foreign Affairs on "Europe's Lousy Deal with Turkey: Why the Refugee Arrangement Won't Work."  Co-authored with Megan Greene, the article criticizes the EU's "cynical bargain to turn Turkey into a buffer zone."  

The first paragraph follows: the full version can be found here (registration required).

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On March 18, the leaders of the European Union reached a controversial deal with Turkey. That agreement, touted as a resolution to the refugee crisis, was in essence a cynical bargain to turn Turkey into a buffer zone. Turkey has agreed to act as a giant refugee holding center, keeping the millions of migrants fleeing conflict in the Middle East from reaching Europe and accepting those sent back from Greece. In exchange, the EU will pay Turkey three billion euros on top of the three billion pledged last November to help care for the refugees. It will also speed up the approval of visa-free travel to Europe for Turkish citizens and revive stalled negotiations over Turkey’s accession to the EU. The EU also agreed to settle a limited number of Syrian refugees—up to 72,000—directly from Turkey to Europe based on a crude “one-in, one-out” trade: for every Syrian smuggled to Greece but returned to Turkey, the EU will legally resettle one Syrian directly from Turkey to a European country. Finally, European leaders promised that once the flood of migration has abated they will implement a “voluntary humanitarian admission scheme,” a vaguely conceived program under which a coalition of willing member states could volunteer to resettle additional refugees.

The article continues here.

March 24, 2016

Max Weber Conference: Democracy and Expertise (March 31-April 1, 2016, NYC)

We are pleased to announce a terrific Max Weber Conference on "Democracy and Expertise" to be held at NYU's Deutsches Haus on March 31 and April 1, 2016.  The conference features a superb lineup, including network members Christine Landfried (NYU & Hamburg) and Gráinne de Búrca (NYU), alongside Mario Monti (Bocconi University; formerly Prime Minister of Italy and European Commissioner), Robert Post (Yale), Katharina Pistor (Columbia), and many others.  The conference will explore the tension between democracy and expertise in an age of innovation and specialization, and at a time when the European Union faces sharp technical and democratic challenges on every side.

Further information and a conference schedule are available here.  Please note that RSVP is required to deutscheshaus.rsvp (at) nyu.edu.

March 22, 2016

Jan-Werner Müller in "Foreign Policy": on Angela Merkel and the "decisive moment ... not just for the EU, but also for Christian Democracy"

Network member Jan-Werner Müller (Princeton) has published a new piece in Foreign Policy entitled "Angela Merkel’s Misunderstood Christian Mission".  The opening paragraphs are below and the remainder of the article can be found here.

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Angela Merkel is in the curious position of having become one of Europe’s moral leaders without ever clearly articulating the real moral dimensions of her decisions. Her emphatic “We can do this” (Wir schaffen das) in response to the arrival in Germany of hundreds of thousands of asylum-seekers has attained the status of a sort of proverb in that country. But she has never otherwise been one for rousing speeches that set out political visions. The sordid details of the deal that she helped seal on Friday with an increasingly repressive Turkey to help control the flow of migrants to the continent has also done little to burnish her reputation as a moral visionary.

But Merkel’s negotiations with Turkey can only be properly considered in the context of the broader moral campaign that she has been waging. It has not always been easy to perceive the distinctly religious aspect of her political agenda, but that does not mean it hasn’t been there. Like few others on the continent, Merkel seems to understand this is a decisive moment not just for Germany, and for the EU, but also for Christian Democracy, one of Europe’s leading governing ideologies of the post-war era.

March 20, 2016

Pietro Faraguna reviews Barsotti et al. on "Italian Constitutional Justice in a Global Context" (Oxford 2015)

In this post, network member Pietro Faraguna (Ferrara) reviews an important new work on the history and jurisprudence of the Italian Constitutional Court from Oxford University Press.

Further information about this volume can be found here.

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Review of Vittoria Barsotti, Paolo G. Carozza, Marta Cartabia, and Andrea Simoncini, Italian Constitutional Justice in Global Context (Oxford 2015) 

Italian Constitutional Justice in Global Context fills a major gap in the international legal literature that has long isolated the Italian constitutional system from global debates amongst scholars of public law. Remarkably, the last comprehensive work written in English on the Italian system of constitutional justice dates from the 1970s: Mauro Cappelletti’s 1971 volume Judicial Review in the Contemporary World. This prolonged lack of accessible scholarship in English struck an odd note, particularly when compared with the vibrant debate amongst public lawyers about the role of constitutional courts in legal orders throughout Europe and worldwide. A lack of English-language literature on the Italian Constitutional Court has muted a potentially influential voice with much to contribute to the global judicial dialogue.