This article belongs to the debate » German Legal Hegemony?
23 Oktober 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? We propose a discussion which is both analytical and normative. The more analytical part of our discussion will be centered on Antoine Vauchez’ thesis of “Vicarious hegemony”. It does not capture all concerns that were raised, but pointedly articulates many of them. For the normative part, we shall focus on Daniel Halberstam’s Anti-Hegemony thesis and think, how it can be evolved into ideas on the 2nd Senate’s stance on Europe, but also broader on judicial politics, on legal mindsets and academic orientations, not just in Germany.

Four academics form our panel: MARTA CARTABIA, DANIEL HALBERSTAM, ANNA ŚLEDZIŃSKA-SIMON and ANTOINE VAUCHEZ. The panel will be moderated by ARMIN VON BOGDANDY. 

Comments, suggestions and questions can be submitted to the discussion in real time via the comment form below.


SUGGESTED CITATION  Cartabia, Marta, Halberstam, Daniel, Śledzińska-Simon, Anna, Vauchez, Antoine; von Bogdandy, Armin: Vicarious Hegemony and the Anti-hegemonic Thrust of European Law: a Conversation, VerfBlog, 2020/10/23, https://verfassungsblog.de/vicarious-hegemony-conversation/.

9 Comments

  1. Raf Verbeke Do 22 Okt 2020 at 18:06 - Reply

    Können wir uns die Diskussionen auch später noch ansehen?

    Danke schön fur das Initiative.

    RV

    • Maximilian Steinbeis Do 22 Okt 2020 at 18:23 - Reply

      yes, there will be a recording

  2. Maciej Pichlak Fr 23 Okt 2020 at 09:18 - Reply

    Could you please clarify: The panel is at 3.30 pm of what time zone?
    Thank you

    • Maximilian Steinbeis Fr 23 Okt 2020 at 09:36 - Reply

      CEST

      • Alexandra Kemmerer Fr 23 Okt 2020 at 14:32 - Reply

        Berlin Time!

        • Peter Herrmann Fr 23 Okt 2020 at 15:38 - Reply

          Why does it say that the event hasn’t stated yet? delayed or a problem from my side?

  3. Henri Schmit Sa 24 Okt 2020 at 16:14 - Reply

    I think that hegemony has to be defined, here obviously in the context of the BVerfG’s PSPP decision. It is not political (force, propaganda, physical & military constraint), nor economic hegemony (de facto influence; although there is some German economic hegemony in the EU, it has nothing to do with the BVerfG’s PSPP decision). Is it a legal hegemony? I don’t think so. The BVerfG accepts European law supremacy, in free movement and other EU matters, even in individual right matters (Solange I and II). Is it judicial? I don’t think so, because the BVerfG accepts the authority of the ECJ (as long as EU-competences are not unduly extended/violated). When the BVerfG decides that a particular ECJ decision concerning the ECB monetary policy is not applicable in D, because it is ultra vires, it defends a doctrine of the member States as masters of the treaties, national authorities as the exclusive legitimate sovereign power to extend EU-competences and by way of consequence to interprete the extension of existing competences (internatioal law/EU-identity doctrine) (cf. Dieter Grimm). This is not German political, legal or judiciary hegemony, but doctrinal hegemony: a fundamental rights based doctrine (including political rights) of the EU as a particular intergovernmental or international organisation founded and legitimated by the sovereign power of the national constitutional authorities, not the German authorities (constitutional identity, democratic constitutional order founded by the GG), but the legitimate (presumably democratic) authorities of all member States. The BVerfG interpretes how German democratic sovereignty is exercised legitimately. In the PSPP case it affirms that only the German voters or their legitimate elected representatives, the Bundestag, may extend their commitment and risks as tax payers beyond the existing EU-competences. If the ECJ decides that the ECB may do this, extending the scope of its monetary policy to economic and fiscal politicy, it acts beyond the EU’s and thus its own competences. (I share the BVerfG/Grimm doctrine although I disagree with what I consider an improper use of the proportionality criterion).

  4. […] de la categoría que nos ocupa, como expresivamente ha puesto de manifiesto Armin von Bogdandy en su invitación a la reflexión sobre la cuestión. De hegemonía jurídica nacional puede hablarse en varios sentidos y desde distintas perspectivas. […]

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