17 February 2022
In Defense of Its Identity
The introduction of rule of law budgetary conditionality, as approved by the Court, is a first step in the right direction. But the Union must go further. Taking a page from fundamental rights and anti-discrimination law, we suggest the systematic, deliberate, and transparent incorporation of rule of law considerations into all Union policies and practices at all stages, from planning and legislation to execution and enforcement, with the aim of actively promoting, realizing, and sustaining the rule of law throughout the Union. Continue reading >>
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23 October 2020
Vicarious Hegemony and the Anti-hegemonic Thrust of European Law: a Conversation
We are debating the specter of German Legal Hegemony. It’s a new dimension for most German lawyers. The prevailing view has been that Germany is at the receiving end and losing out. Many consider Germany as making a too small impact on European law because it’s too inflexible for its federalism and too inhibited for many reasons. Quite a few see the 2nd Senate of the BVerfG as the last institution defending law and reason against overbearing European institutions as Berlin politicians have largely given up. The symposium has provided a different picture. How to deepen learning from it? Today we propose a discussion which is both analytical and normative. Continue reading >>14 October 2020
Anti-Hegemony and Its Discontents
Long before the fighting ceased, Jean Monnet was already planning to integrate a defeated Germany into “a Europe united on terms of equality.” The idea had been brewing in the French and Italian resistance during World War II, even since Germany had been defeated last time around, and before then, in other forms, too. The key to bringing the warring nations together in solidarity was, as the Schuman Declaration would explain, taming the age-old animosity between Germany and France in a supranational project “open to all countries willing to take part.” The aim, in the words of the Treaty of Rome would be an “ever closer union among the peoples of Europe.” Continue reading >>
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23 February 2020
Could there be a Rule of Law Problem at the EU Court of Justice?
The Member States’ current plan of replacing the sitting U.K. Advocate General at the Court of Justice Eleanor Sharpston before the end of her six-year term raises a serious question whether doing so may violate the European Treaties. If yes, this would be a troubling intrusion on the independence of the Court and the constitutional structure of the Union – just when the EU should be setting an example for the Member States (both current and former). Continue reading >>09 June 2016
The Judicial Battle over Mutual Trust in the EU: Recent Cracks in the Façade
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. Continue reading >>12 June 2015
Foreign Policy and the Luxembourg Court: How to Address a Key Roadblock to EU Accession to the ECHR
The Court of Justice of the European Union recently declared the European Union cannot join the European Convention on Human Rights (ECHR) unless the Luxembourg court has jurisdiction over all questions of EU law that reach the Strasbourg court – including Common Foreign and Security Policy. The reasons behind this decision have been discussed elsewhere. The big question now is, how to proceed? Continue reading >>
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12 June 2015
Foreign Policy and the Luxembourg Court: How to Address a Key Roadblock to EU Accession to the ECHR
The Court of Justice of the European Union recently declared the European Union cannot join the European Convention on Human Rights (ECHR) unless the Luxembourg court has jurisdiction over all questions of EU law that reach the Strasbourg court – including Common Foreign and Security Policy. The reasons behind this decision have been discussed elsewhere. The big question now is, how to proceed? Continue reading >>
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23 March 2015
Plural Constitutionalism as Theory and Method: A Reply to Critics
I enjoyed the exchange on my article providing a qualified constitutional defense of Opinion 2/13. I will not delve into a point-by-point rebuttal of the critics here. Instead, I shall make three quick points and end with a methodological challenge in the interest of moving forward. Continue reading >>
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12 March 2015
A Constitutional Defense of CJEU Opinion 2/13 on EU Accession to the ECHR (and the way forward)
The Court of Justice of the European Union has arrived! Gone are the days of hagiography, when in the eyes of the academy the Court could do no wrong. The judicial darling, if there is one today, is Strasbourg not Luxembourg. Only hours after Opinion 2/13 struck down the Draft Agreement on EU Accession to the European Convention on Human Rights, scholars condemned the opinion as “exceptionally poor.” Critical voices mounted ever since, leading to nothing short of widespread “outrage.” I disagree with the critics. In my legal analysis and constitutional reconstruction the Court’s concerns are mostly warranted. I also identify the changes that must be – and reasonably can be – made to move accession forward. Finally, and in a twist of irony, I show that one of the Court’s greatest concerns – mutual trust – goes to the very survival of the Union and demands not an exemption, but full accession. Continue reading >>03 April 2012
Rescue Package for Fundamental Rights: Further Comments by DANIEL HALBERSTAM
Peter Lindseth’s post directed at my own intervention on the [...] Continue reading >>
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