This essay deals with conditions, challenges and perspectives concerning the legal system of the European Union after the Lisbon treaty has entered into force. It starts out by recalling constitutional principles such as primacy, direct effect and consistent interpretation of the European legal order on the one hand and the relationship of cooperation between the Court of Justice and national courts – notably pointing out the importance of the preliminary procedure (Article 267 TFEU) – on the (...) other hand. In addition, characteristics of the legal system of the European Union such as the integration of national legal systems are highlighted. It is accentuated that the legal community of the European Union depends on the acceptance by all 27 Member States. Furthermore, the normative quality of European law-making is discussed as well as the necessity for a sufficient democratic legitimation of European Law. As impressively illustrated by the financial crisis, the European Union is much better equipped with possibilities to effectively fulfil regulatory tasks than any Member State. The author shows developments with regard to European Union citizenship, non-discrimination, the Charter of Fundamental Rights - that is now equipped with binding character – and the vertical distribution of competences between the European Union and the Member States, including explanations relating to subsidiarity requirements and their judicial review. Moreover, challenges to the institutions of the European Union are discussed. (shrink)

The treaty of Lisbon makes European Union (EU) accession to the European Convention on Human Rights (ECHR) an obligation of result. The issue has been intensely discussed for more than thirty years, arguing that such accession is necessary in view of the need to ensure the ECHR standard of fundamental rights protection in Europe. This question again gains prominence as the EU member states and the institutions seek to agree on the negotiation directives of EU accession (...) to the ECHR. The process brings up the difficulties involved in creating a mechanism which would both facilitate the autonomy of the EU legal order and enable individuals to bring claims against the EU to the European Court of Human Rights (ECtHR). This involves the questions how it would be possible to ensure quick access to justice, and whether the ECtHR would continue to apply the doctrine of equivalent protection in relation to EU even after the latter becomes bound by the ECHR. The article argues that EU accession to the Convention is a prominent political step ensuring coherence of human rights protection mechanism in Europe. (shrink)

This chapter analyzes European social policy as a test case to comment on both the originality and the weakness of a unique supranational legal order, such as the one created in 1957 with the Treaty of Rome. Regulatory measures in social policy, related to equal treatment, nondiscrimination, and working conditions were implemented via hard law measures aiming at the harmonization of standards. The chapter also looks at the latest innovations in social policy brought about by the Lisbon (...) class='Hi'>Treaty. Article 3 of the Treaty on European Union (TEU) mentions full employment among the objectives to be pursued in a social market economy. The economic and financial crisis has accentuated the problems of supranational coordination versus national initiatives and has given rise to exceptional austerity actions that have departed from the methods provided for in the treaty. (shrink)

After coming into force of the Treaty of Lisbon it is acknowledged that better control and respect of the principle of subsidiarity is one of the most important and innovative goals of the Treaty. To achieve this goal, the Treaty introduces a mechanism which, apart from checking compliance of draft legislative acts with that principle, may eventually lead to a draft act to be deleted from the legislative agenda of the European Union on grounds of (...) violation of subsidiarity. Within this mechanism, crucial role is attributed to the national parliaments of the Member States. In this article, the reasons for overall inclusion of national parliaments in the European Union (hereinafter EU, the Union) activities are analysed. The role of national parliaments in the EU according to the specific provisions of the EU treaties is also discussed and the largest part of the work is devoted to the ex ante subsidiarity principle control mechanism (the Early Warning System), which gives the right for the national parliaments to influence the EU legislative process. (shrink)

Human rights have occupied a variety of roles in the course of history of the European Union. They played a negligible role at the outset, overlooked by the original Treaty of Rome and, even today, the Union's formidable associations with free trade, the single market, and regulation might suggest that it cannot be primarily defined as a human rights organization. The Charter of Fundamental Rights of the European Union has at last acquired binding force, (...) provision is made for the European Union to accede to the European Convention on Human Rights (ECHR), and the Court of Justice of the European Union (CJEU) is to have greater powers of judicial review in the field of police and judicial cooperation in criminal law, an area of obvious relevance to human rights. This chapter highlights some significant developments in the Court's fundamental rights jurisprudence. (shrink)

The main purpose of the study is to analyze the feasibility and necessity of an EU Constitution. Briefly, the history of the draft constitution is as follows: The draft treaty aims to codify the two main treaties of the European Union - the Treaty of Rome of 1957 and the Treaty of Maastricht of 1992, as amended by the Treaty of Amsterdam (1997) and the Treaty of Nice (2001). The debate on the future (...) of Europe is believed to have begun with a speech by German Foreign Minister Joschka Fischer in Berlin in 2000. The process began after the Laeken Declaration, when the European Convention was set up, chaired by former French President Valerie Giscard d'Estaing, with the aim of drafting a constitution. The draft contract was published in July 2003. After lengthy discussions and debates over the proposal for qualified majority voting, the final text was approved in June 2004 and signed by representatives of the Member States on 29 October 2004. The failure of the treaty in France and the Netherlands is a serious blow to the European Union because these two countries are considered to be loyal supporters of the European project. The text of the treaty was subsequently rewritten by the Amato Group, officially the Active Committee on European Democracy (ACED), a group of high-ranking European politicians. During the German presidency of the Union, a new treaty was proposed - the Treaty of Lisbon - to replace the original draft of the Constitution. On 12 June 2008, the Lisbon Treaty was also rejected in a referendum in Ireland. But if we want to look beyond history, we can ask - Why does the EU need a Constitution and how can the Constitution be the roadmap to an advanced future for the EU? The answers to this question can be found by analyzing several directions (these are the main points of the article): historical reflexivity; socio-cultural analysis of the philosophical concepts of well-known political and social philosophers such as Immanuel Kant, John Locke; the modern constellation through the prism of Jürgen Habermas and the decision to make a text as a Constitution which its aim is to reach the starting point of an entire community like the EU. Keywords: constitution, EU, philosophy, law, John Locke, Immanuel Kant, Jurgen Habermas. (shrink)

The purpose of the present contribution is to explore how the ECJ seeks to respect the principles underpinning national welfare systems, notably social solidarity, whilst ensuring that Member States comply with the substantive law of the European Union, in particular with the Treaty provisions on the fundamental freedoms and EU citizenship. It is submitted that in order to reconcile those two interests the ECJ has taken the view that nationals of the host Member State must show a (...) certain degree of financial solidarity with the nationals of other Member States who have established a ‘genuine or real link’ with the society of that State. With a view to establishing the existence of such a link, national authorities of the host Member State must engage in a case-by-case assessment of the personal circumstances of the EU citizen claiming social benefits. However, Förster is an important exception to the individual application of the ‘genuine or real link’ test. Although Förster does not overrule Bidar as a matter of principle, it exempts the host Member State from examining the personal situation of economically inactive students who apply for maintenance grants or student loans but have not yet completed a five-year period of residence. (shrink)

Translated by Ciaran Cronin. In the midst of the current crisis that is threatening to derail the historical project of European unification, Jürgen Habermas has been one of the most perceptive critics of the ineffectual and evasive responses to the global financial crisis, especially by the German political class. This extended essay on the constitution for Europe represents Habermas’s constructive engagement with the European project at a time when the crisis of the eurozone is threatening the very existence (...) of the European Union. There is a growing realization that the European treaty needs to be revised in order to deal with the structural defects of monetary union, but a clear perspective for the future is missing. Drawing on his analysis of European unification as a process in which international treaties have progressively taken on features of a democratic constitution, Habermas explains why the current proposals to transform the system of European governance into one of executive federalism is a mistake. His central argument is that the European project must realize its democratic potential by evolving from an international into a cosmopolitan community. The opening essay on the role played by the concept of human dignity in the genealogy of human rights in the modern era throws further important light on the philosophical foundations of Habermas’s theory of how democratic political institutions can be extended beyond the level of nation-states. Now that the question of Europe and its future is once again at the centre of public debate, this important intervention by one of the greatest thinkers of our time will be of interest to a wide readership. (shrink)

Translated by Ciaran Cronin. In the midst of the current crisis that is threatening to derail the historical project of European unification, Jürgen Habermas has been one of the most perceptive critics of the ineffectual and evasive responses to the global financial crisis, especially by the German political class. This extended essay on the constitution for Europe represents Habermas’s constructive engagement with the European project at a time when the crisis of the eurozone is threatening the very existence (...) of the European Union. There is a growing realization that the European treaty needs to be revised in order to deal with the structural defects of monetary union, but a clear perspective for the future is missing. Drawing on his analysis of European unification as a process in which international treaties have progressively taken on features of a democratic constitution, Habermas explains why the current proposals to transform the system of European governance into one of executive federalism is a mistake. His central argument is that the European project must realize its democratic potential by evolving from an international into a cosmopolitan community. The opening essay on the role played by the concept of human dignity in the genealogy of human rights in the modern era throws further important light on the philosophical foundations of Habermas’s theory of how democratic political institutions can be extended beyond the level of nation-states. Now that the question of Europe and its future is once again at the centre of public debate, this important intervention by one of the greatest thinkers of our time will be of interest to a wide readership. (shrink)

The system of the European Convention on Human Rights created in 1950 is still regarded as the most important and effective regional system for the protection of human rights in the whole world. However, the experience of the European Court of Human Rights (ECHR) has clearly showed that the steady growth in the number of cases brought before the ECHR makes it increasingly difficult to keep the length of proceedings within the acceptable limits and to maintain the effectiveness (...) of the ECHR. This aspect is becoming extremely important due to the fact that the European Union (EU) will join the Convention system in the near future. The legal basis for the EU accession to the Convention system has been made possible after the entering into force of the EU Lisbon Treaty on 1 December 2009, and, from the Convention’s perspective, the new Protocol No. 14 to the Convention, which entered into force on 1 June 2010, and which, in Article 17 (amending Article 59 of the Convention), stipulates that the EU may accede to this Convention. (shrink)

The author starts with general differentiation between human, fundamental and civil rights. Considering that such distinction in terms isn’t supported in European conventions, he remarks that strict distinction between human, fundamental and civil rights isn’t unconditionally obligatory, and therefore meaningful. That’s why he focuses on common values through his thorough analysis and evaluation of legal standardization of human rights in the European Union: The treaty on European Union, Charter of fundamental rights, other documents and (...) practises of European institutions. Peace, being the basic aim of European unification, can remain stabile through ,,in the first line”, freedom and respect of fundamental and human rights. The most important foundation for developing common European identity is awareness of common European values and fundamental and human rights, which mark the European cultural space in a particular way and provide Europe with the spirit. (shrink)

The first part of the paper is mainly descriptive. Starting from a short historical sketch of the European construction process, from the initial Treaty of Rome to the actual Treaty of the European Union, the changing trade-offs between the environmental and the economic domain will be overviewed. We will focus on a pragmatic examination of the texts, in their dynamic historical evolution.The second part is evaluative. Examining the fifth Environmental Action Programme more in detail, we (...) will try to determine for which environmental ethics the E.U. stands, as confronted with the alternative paradigm defended by environmentalists and the Green Group in the European Parliament. Is the environmental issue a unifying or a dividing factor in the contrasting cultural landscape of the Old Continent? I think probably Cortona is an excellent place to ask such a speculative question, because we are not far away from Assisi, where a successful Interfaith Meeting on the Environment was organised by the W.W.F. in 1986. (shrink)

There are several reasons, according to which it is worth analyzing European administrative law. First, this is a rather new branch of law. Second, the European administrative law is treated in different countries from different legal traditions positions, consequently, any effort to unify the approach to it can provide a basis for a unified European administrative law model. Third, there are no works dedicated to the analysis of the phenomenon of the European administrative law in Lithuania. (...) Therefore, this article deals with the concepts of the European administrative law. It is stated that the comprehensive image of the European administrative law reveals three European administrative law concepts. The first concept of the European administrative law characterizes it as the European Union (hereinafter – EU) administrative law, the validity of boundaries of which can be based on three aspects – functional, institutional and procedural. The second concept of the European administrative law identifies it as the law of administrative cooperation., whereas the third concept allows the European administrative law to be seen as the law common to various public administrations of European countries – ius commune. The article focuses on the analysis of the above-mentioned three approaches and the EU set of administrative procedures as an instrument to promote the development of the EU administrative law. The author comes to the conclusion that the concept of the ‘European Administrative Law’ is broader than the concept of the ‘EU Administrative Law’. The European administrative law can be perceived not only as a part of law that establishes the EU administration’s administrative legal status, its’ activity principles, forms and methods, but also as a law of administrative cooperation between states, governmental and non-governmental organizations and various corporations, based on a wide range of multilateral treaties or conventions, which cross the limits of the EU. Moreover, the European administrative law can be understood as a law with common concepts, general principles characteristic to different European countries’ public administrations as well as a science, with the help of which diverse administrative legal systems of various countries could be compared. Taking into account the content of various working documents, the author draws the conclusion that for the further development of the EU administrative law the establishment of uniform operating rules for the EU administration in its’ relations with the society is of exceptional importance. There are a number of important reasons to develop the Law on administrative procedure of the EU. First, it is generally recognized that the EU needs common binding legislation that sets out clear operating rules of the EU administration in its’ relations with legal and natural persons, and that would increase the transparency of the EU administration and its’ accessibility to citizens. Second, the drafting of the law on administrative procedure of the EU lies in the legal framework as well; the importance of the article 298 of the Treaty of the Functioning of the European Union, the articles 41 and 42 of the Charter of Fundamental Rights of the EU as well as “soft” law (i.e. codes of good administrative behavior) are obvious here. (shrink)

The article aims at resolving the issue whether the Court of Justice of the European Union (CJEU) has an exclusive jurisdiction under Article 344 of the Treaty on Functioning of the European Union (TFEU) to resolve disputes between Member States, stemming from provisions of an international treaty, a party to which is the EU. This problem is especially relevant in cases when a mixed international agreement envisages independent institutions of dispute resolution. The position of (...) the CJEU is expressed in the case of Mox Plant. The European Commission applied to the CJEU against Ireland, because it considered that Ireland, which started an arbitration procedure against United Kingdom under the UN Convention on the Law of the Sea, has infringed the exclusive jurisdiction of the CJEU under Article 344 of the TFEU. The EU is also a Contracting Party to the UN Convention on the Law of the Sea. Therefore according to the consistence case practice of the Court, the provisions of the Convention that fall under the competence of the Union constitute an indivisible part of the EU legal system. Only in such case when a provision of a treaty is attributed to exclusive competence of the Member States, the jurisdiction of the CJEU regarding that provision can be negated. Thus, when deciding on the issue of exclusive jurisdiction of the CJEU in principle, a problem of attribution of the EU and Member States’ competences arises. (shrink)

European identity can be considered in its objective dimension, as being the top-down project and also the bottom-up process of building the genuine form of the trans-national political community, as well as in its subjective dimension related to the identification of the individuals and groups – the Europeans – with this new political community and in addition to their already established identification with a certain nation-state. The third dimension, related to the relevant interpretative models – ethno-cultural/Euroscepticism approach, European (...) constitutional patriotism, pluralist/multiculturalism approach – has also been important factor of European identity-building. New type of political community opens new questions – whether it is a Europe as the family of nations, a Europe of citizens, a Europe which is going to be built through common practices, a Christian Europe or a Europe of mutual matching and crossing civilizations, a secular Europe or Europe of religious Christian heredity and/or different religions. Founding Treaties define European identity politically, starting from the motto “Unity in Diversity”. However, this motto is differently interpreted by communitarians/Euro nationalists, ethno-nationalists/Euro skeptics, liberals and republicans/European constitutional patriots. Controversial character of political identity has to be kept in mind always again. The politics of identity, the misuse of an ethnically concieved concept of identity with its war-like consequences, has represented one of the most destructive potentials of a contemporary politics, including the region of Europe . On the other hand, political communities cannot survive without homogenizing force of a common identity, and it is especially valid for proposed democratic communities, including European Union. When European identity is regarded, it is most important to define its meaning in a sense which will empower a democratic capacity of the European Union, which will contribute to overcoming its democratic deficit, and will also contribute to escaping particularist, xenophobic, Euro skeptic tendencies and sentiments. (shrink)

The main subject of the present research is the enforcement of the European Union law in the domestic legal order. This topic was chosen considering the Treaty of Lisbon amending the Treaty on the European Union and the Treaty establishing the European Community and especially its declaration No. 17 on primacy of EU law. This article will explain the meaning of primacy of the European Union law and the resulting problems (...) in some EU Member States, as well as possible solutions to tackle the problems. The primacy of the European Union law over the national law was recognised as one of the constitutive principles of the European Union. The article includes relevant provisions of the Lisbon Treaty that deal with the rules concerning the legal requirements of the primacy of the European Union law in the EU primary law. The European Court of Justice has developed the meaning of the principle of primacy, which means that the European Union law should take precedence over national law (even over constitutional provisions) and should there be any conflicts between EU law and national law, every national court is obliged to apply the law of the European Union. The main issue of this article is analysing the principle of primacy of the European Union law over the Lithuanian law. (shrink)

Debates about the EU show that the holy trinity of absolute, indivisible sovereignty, nationality/citizenship and national identity/loyalty should be replaced by multilayered, pluralist concepts for descriptive, explanatory and normative purposes. Democratic pluralism criticizes replacement‐strategies (of the nation‐state by a European state, citizenship‐rights by human rights, national obligations by European or global ones). It opts for productive complementarity guided by two principles: “proximity and accountability” and “correspondence of powers and democratic say” and for progressive transdomestic shifts. The inclusion of (...) the articles on citizenship in the EC Treaty has, unintendedly, contributed to such a shift though it missed historical chances to develop a more democratic and social EU living up to minimal global obligations. (shrink)

The French and Dutch referenda on the adoption of a European Constitutional Treaty highlight a remarkable ambiguity in the self‐constitution of a polity, which can be viewed as both constitution by and of a collective self. This ambiguity is a fundamental feature of polities in general, and the European Union in particular. Rather than suppressing this ambiguity, democracy—and a fortiori a European democracy worth its name—institutionalises it as the guiding principle of political action. As will (...) transpire, the conceptual and normative problems raised by political self‐constitution are linked to self‐attribution, i.e., the conditions under which a collective ascribes legislation to itself. (shrink)

The date 23 June 2016 brought in front of the United Kingdom and the European Union a very serious challenge named Brexit. In the June 23, 2016 referendum, the British voted to leave one of the most unique international organizations in the world, thus putting the EU in front of the UK’s request for the activation of Article 50 of the Lisbon Treaty, which the EU is facing for the first time. Brexit is opening new chapters in (...) the history of the UK, while the EU is engaging with the procedures of the voluntary withdrawal of an important member state, which is known about its high political and military role in the world. Some experts of international relations and European studies say that Brexit will have much more consequences for the UK, some for the EU, but truth is that Brexit will be accompanied with many consequences for both of its protagonists. Its risks are very serious so they may result with the dissolution of the UK. Meanwhile, the increase of euroscepticism within the EU’s member states, with particular emphasis the presence of Eurosceptic voices in its most important members is at a very worrying level. Based on these facts, the knowledge about the real meaning of Brexit is necessary. Therefore, the main focus of this research lies in the classification of the main political consequences of Brexit for the UK and the EU. (shrink)

This article analyses the legal basics of the Member States liability in damages for the breach of European Union law and the conditions for liability. It is emphasized that the Member States liability in damages for the breach of European Union law has three different grounds—one direct legal background (Article 4 of the Treaty of the European Union) and two indirect basics—principles of direct effect and that of effectiveness of European Union (...) law. The author subsequently examines the content of each condition for liability established in the practice of the Court of Justice of the European Union —the intention of the rule of European Union law infringed to confer rights on private parties, the sufficiently seriousness of the breach and the direct causal link between the breach and the damage. It is stated that in order to prove that a Member State is liable for the breach of European Union law, one more condition for liability should be established—a private party must prove that he has incurred particular damage. It is also highlighted that the second condition for the Member States liability in damages for the breach of European Union law —sufficiently seriousness of the breach—restricts the right of a private party to obtain compensation. (shrink)

The establishment of the Common European Asylum System by 2012 remains a key policy objective for the European Union. According to the Council of the European Union, the development of a Common Asylum Policy should be based on a full and inclusive application of the 1951 Geneva Convention Relating to the Status of Refugees and other relevant international treaties. In the European Pact on Immigration and Asylum attention is brought to the persistence of wide (...) disparities amongst Member States in the granting of protection and the form of protection granted. This is seen as one of the main problems to be addressed in building the CEAS. It is fairly obvious that existing divergences in policy have a substantial impact upon the aims of the CEAS. It can be assumed that the difference in governmental practices involving recognizing asylum seekers on refugee grounds or subsidiary protection grounds may be a substantial factor in the decision-making process on where to apply for international protection. The European Commission stressed the importance, during the second phase of the CEAS, of paying particular attention to subsidiary and other forms of protection. (shrink)

In the present essay, I argue that the current EU governance reflects a contradiction between the presumption of a European constitutional framework based on human rights, democracy and the rule of law and the recently adopted economic stability governance defined outside the horizon of the EU treaties. I propose to understand this scenario through the prism of two distinct and context-specific assumptions: a political-sociological hypothesis for which internal contradictions of capitalism are thought to be capable of ‘self-displacing’ to other (...) societal sectors and a political-philosophical thesis for which EU governance is connected to a decrease in democratic legitimacy and right-standards due to hegemonic control by economic powers. Both hypotheses testify to the lowering of the standards of protection of fundamental rights and member states’ regulatory capacities as well as to an overall de-constitutionalization of the EU architecture. (shrink)

The aim of the paper is to establish a relation between the cooperative principle formulated by H.P. Grice in pragmatics and the principle of sincere cooperation laid down in the founding Treaties on the European Union and interpretated by the Court of Justice of the European Union, intimately linked to the ethical imperative of cooperation, in a cultural framework shared by the Member States. The key concepts are ratio and value and the case-law analysed is provided (...) by the recent cases of the Romanian magistrates. The principle of cooperation reasserted also as the Cooperation and Verification Mechanism is the main obligation and it implies compliance with agreements and action to obtain certain effects. (shrink)

The Court of Justice of the European Union (CJEU) has some basic structural features similar to that of most judicial bodies. According to the treaties, the members of the Court are chosen from individuals whose independence is beyond doubt and who possess the ability required for appointment to higher judicial offices. The involvement of the Court and its president in the most important reforms of the European Union's judicial architecture in recent years is a striking feature (...) which may be called judicial self‐government. International courts have shifted away from being principally committed to dispute settlement towards pursuing other goals, such as advancing international norms and facilitating cooperative international arrangements. The reinforcement of the cooperation of the Court with national courts on the one hand, and with international courts and tribunals on the other, is one of the great current challenges facing the Court. (shrink)

The non-discrimination principle is one of the essential principles in the area of European public and private law too. The importance of this principle also takes a great place in field of company law, especially in the area of “freedom of establishment of the companies” in the European Single Market. Freedom of establishment of companies is closely related to the general concept of “free movement of people, capital, goods and services,” in ESM. In fact, freedom of establishment is (...) a substantive part of the process of creation the internal market in EU. The freedom of establishment is based on the Treaty of the functioning of EU. According to article 49 from TFEU, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. This prohibition also applies to restrictions on setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State. In-depth exploration of this issue is conditioned by the interpretation of the Court of justice of European Union, which embodies the real legal regime of freedom of establishment. Freedom of establishment of companies is closely related to the principles of healthy and fair competition and equal access of the companies too. This article seeks to elaborate fundamental theoretical aspects of this issue, considering certain case - study analyze of CJEU judgements. The main focus is on the non-discrimination principle, legal effects of the CJEU judgments, free market and competitiveness, and finally, determination of the concept of primary and secondary establishment of companies in EU. (shrink)

The Schuman Plan was enthusiastically endorsed by the Benelux countries, France, Germany, and Italy, but the United Kingdom declined to participate, refusing to accept the supranational role of the projected High Authority. The treaty Establishing the European Coal and Steel Community (ECSC) was signed in Paris on 18 April 1951. The European Economic Community (EEC) has provided the core framework for the process of European integration. The Single European Act (SEA) also inserted into the EEC (...) Treaty a number of specific new legal bases for Community action. The treaty provisions were superseded by the Treaty on European Union (TEU), which provides the legal basis for the common foreign and security policy (CFSP). The Reform Treaty was to shed the form, language, and symbols of a European Constitution in favor of having another amending treaty, similar in nature to the SEA, Treaty of Amsterdam (TA), or Treaty of Nice (TN). (shrink)

Fifty years ago, on 12 September, 1963, the association agreement between the European Economic Community (EEC) and Turkey was signed in Ankara. However, in contrast to many other countries who applied later on, Turkey has not yet become a member of the EU. Nevertheless, Turkey’s candidacy to join the EU is still one of the most considerable and controversial topics within the European political arena. Within the accession negotiations, apart from human rights and the Kurdish and the Cypriot (...) issues, one of the greatest challenges to Turkey’s successful candidacy is the issue of respect for and protection of minorities. It might indeed represent an unsolvable problem, which will ultimately block Turkey joining the EU. Neither the EU nor Turkey has really come to terms or dealt with what the EU sees as an “unsatisfactory” protection of minorities in Turkey. What lies at the root of this disagreement is what the term “minority” actually means. Due to Turkey’s own nation state concept as being a united and undivided country and to the terms of the Treaty of Lausanne signed in 1923, which defined Turkey as a nation, the country only recognises non-Muslim minorities. Moreover, contrary to the wording of the minority protection clauses in the Treaty of Lausanne, Turkey restricts its recognition of non-Muslim minorities only to the Greek, Armenian and Jewish religious populations. Although being a non-Muslim group as well, the Assyrians are excluded from the Turkish concept of minorities and, therefore, also from minority protection. In contrast to that, the EU’s concept of minority includes ethnic, linguistic and religious minorities, which means that according to the EU’s concept of minorities, also ethnic minorities like the Kurds, linguistic minorities like the Laz and religious minorities like the Alevis are included in the term “minority” and, therefore, these minorities should benefit from specific minority protection rights. To find a common basis for discussing the unsatisfactory issue of minority rights in Turkey, the concept of “ethnic groups” is introduced by the author as the most promising approach to deal with this unreconciled conceptual difference. According to this concept, ethnic groups could form a sub-identity of Turkishness and help build a legal basis to the treatment of minority groups founded on human rights, which would be compatible with both Turkish and EU Law. (shrink)

Although the Lisbon Treaty maintained the general exclusion of Common Foreign and Security Policy (CFSP) matters from ECJ jurisdiction, it introduced a number of changes into this area, including an explicit statement that the Court is competent to review the legality of the Council decisions imposing restraining measures on persons. The article analyzes the nature and origin of those changes and considers the legal implications for the level of the protection of fundamental rights in the European Union. (...) For this purpose the author firstly considers the context of the exclusion of CFSP matters from the ECJ jurisdiction, including discussions on the issue at the European Convention, and, secondly, takes a closer look at the separate heads of jurisdiction over which the Court is competent to act after the entry into force of the Lisbon Treaty. A conclusion is made that the Lisbon Treaty did not introduce significant changes to ECJ jurisdiction. Similarly to the pattern of previous amendment treaties, the Lisbon Treaty again gave recognition to the practice of the ECJ on relevant questions. Nonetheless, the amendments made by the Lisbon Treaty should be welcome for introducing more clarity into the legal regulation of the matter, thus boosting the legal certainty and protection of fundamental rights in the European Union. (shrink)

'This book is an excellent, theoretically sound and politically relevant reader', Professor Wolfschaefer, Universitat des Bundeswehr, Hamburg 'Up to date complete overview of European monetary and fiscal policy issues. Highly readable, good mix of theory and data' 'I think the book contains a wealth of useful, precise information, presented in a straightforward, readable way in a quintessentially comparative perspective', Dr M Mclean, Royal Holloway University 'Excellent treatment - quite comprehensive, full references, accessible for non-economists', Charlotte Bretherton, Liverpool John Moores (...) Univesity 'A useful addition to student literature', MJ Macmillan, Exeter University 'This is a top class book and does not limit itself to assessing the adequacy of the European political economy to the precepts of advanced monetary economics...This book is an excellent tool for teaching EMU economics, and raising the level of EMU economics in the reaserch-field of international political economy. Students and scholars will appreciate the explicit assessment the authors make of complex economic issues, and their unbiased stance in the study of EMU economic and political interplay.' Miriam L.Campamella, Jean Monnet Professor, Faculty of Political Science, University of Turin. ECSA Review, Winter 2001This textbook offers a fresh and comprehensive examination of European monetary and fiscal policy in the third stage of Economic and Monetary Union. Professors Eijffinger and de Haan give a brief history of European economic integration before the transition to EMU, and continue with a comprehensive analysis of institutions, legislation, and policies. Their analysis includes the functions and goals of the European Central Bank, the Treaty on European Union, the Stability and Growth Pact, and the harmonization of taxes. Other topics discussed include the targets and instruments of European monetary policy, the integration of European financial markets, and the competition between financial institutions in Europe. (shrink)

This contribution offers an introduction to the Special Issue 'Rethinking the European Social Market Economy'. It places the Special Issue against the background of the debate on free markets versus social protection in the European Union and the inclusion of the notion of 'social market economy' in the Treaty on European Union. It sketches the meaning and development of the social market economy concept, and introduces the key questions underlying this Special Issue and the (...) contributions included in it. (shrink)

(Introduction) Dignity is regarded today as a fundamental, or even the most fundamental, value across legal systems, at both international and national levels. It seems to be one of the values which provide a common axiological basis for different constitutional traditions across Europe (de Lange 2007: esp. 3-6). Moreover, taking account of its prominent place in the law of the United Nations, human dignity is one of the values on which the international community rests. The expression “human dignity” belongs to (...) the vocabulary of the “common language” of the international community and constitutionalism at a domestic level. The common understanding of this expression is paramount. One of the crucial questions, and one that will lie at the heart of our considerations, pertains to the foundations of human dignity. Europe is facing an essential change in understanding of the foundations of dignity, and this seems to be happening unnoticed. At the core of this change lies an abandonment of recognition of the inherent character of dignity, which is among the crucial elements of a universal paradigm for understanding human rights (Piechowiak 1999). This paradigm is based on the international law of human rights established in the framework of the United Nations after the Second World War, and – it should be added – in the face of the terrible experiences of two world wars. The considerations here serve to explain some of the consequences of this change for the understanding of human rights, especially their claim to be universal. It is argued that recognition of the inherency of dignity is interrelated and interdependent with recognition of the universality and equality of dignity, and – in consequence – with recognition of the universality and equality of human rights. The exclusion of inherency from the qualities of dignity recognized by law results in a rejection of the universality and equality of dignity and rights, or at least in fundamental changes in the understanding of universality and equality (cf. Piechowiak 2012). (shrink)

Ordoliberalism is often recognized as a powerful ideational source during the Euro crisis; however, there is no pure ordoliberal vision of European integration, and ordoliberal ideas have been used to support both Eurosceptical and Europeanist positions during the crisis. This article reconstructs the ordoliberal theoretical and political debate on European integration and argues that there exist two ordoliberal paradigms of European integration: one bottom-up, whereby the commitment to liberal economic policies at the national level is the precondition (...) for a liberal international order; the other top-down, whereby a liberal international order can help the establishment of a liberal order at the national level. The article compares two ordoliberal visions of the international order: Wilhelm Röpke’s ‘liberalism from below’ (which follows the bottom-up logic) and Viktor Vanberg’s ‘competitive federalism’ (which follows the top-down logic). Then, it explores the ordoliberal political debate on two episodes of the European integration process – the Maastricht Treaty and the Euro crisis – to argue that the bottom-up and the top-down logics underpinned, respectively, Eurosceptical and Europeanist arguments. (shrink)

This chapter reexamines the case law of the Court of Justice of the European Union (CJEU) through the prism of the modern structure of the foundational treaties of the EU: the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). The Lisbon Treaty has reshaped the structure of the positive law of the EU, marking a new stage in the process of creating a closer (...) union. For EU procedural law, this has led to the formal establishment of three focal points which reflect the issues involved. At one extreme, are general principles of EU law, which have constitutional status including the general principle of effective judicial protection. In the middle of the spectrum are two provisions which recognize the balancing of national and EU interests required at the procedural level. Finally, the treaties recognize the possibility for substantive regulation at the EU level. (shrink)

Many political and legal philosophers compare the EU to a federal union and believe its basic laws should be subject to the standards of constitutional law, and thus find it lacking or incomplete. This book proposes a rival theory: that the substance of EU law is not constitutional, but international, and provides a close examination of the treaties and the precedents of the European courts to explore this concept further. -/- Just like international law, EU law applies primarily (...) to the relations between member states, who have democratically chosen to adapt their constitutional arrangements in order to share legislative and executive powers with their partners. The legal architecture of the European Union is thus best understood under a theory of dualism and not pluralism. -/- According to this 'internationalist' view, EU law is part of the law of nations and its distinction from domestic law is a matter of substance, not form. This arrangement is supported by a cosmopolitan theory of international justice, which we may call progressive internationalism. The EU is a union of democratic peoples, freely organizing their interdependence on the basis of principles of equality and reciprocity. Its central principles are not the principles of a constitution, but cosmopolitan principles of accountability, liberty, and fairness. -/- Presenting an 'internationalist' reading, this book proposes that the EU is a creation of the law of nations, and argues for a dualist account of its legal architecture, with EU law and domestic law allocated different institutional roles. (shrink)

In 2005, seven European countries signed the so-called Prüm Treaty to increase transnational collaboration in combating international crime, terrorism and illegal immigration. Three years later, the Treaty was adopted into EU law. EU member countries were now obliged to have systems in place to allow authorities of other member states access to nationally held data on DNA, fingerprints, and vehicles by August 2011. In this paper, we discuss the conditions of possibility for the Prüm network to emerge, (...) and argue that rather than a linear ascent towards technological and political convergence and harmonisation, the story of Prüm is heterogeneous and halting. This is reflected also in the early stages of implementing the Prüm Decision which has proven to be more challenging than it was hoped by the drivers of the Prüm process. In this sense, the Prüm network sits uncomfortably with success stories of forensic science . Instead of telling a story of heroic science, the story of Prüm articulates the European dream: one in which goods, services, and people live and travel freely and securely. (shrink)

The article deals with the question whether a state might be held liable for the infringement of the European Convention on Human Rights if its national court of last instance fails to implement the obligation to make a reference for a preliminary ruling to the Court of Justice of the European Union under the conditions laid down in Article 267 of the Treaty on the Functioning of the European Union and developed in the case-law (...) of the Court. Relying on well-established practice that an arbitrary decision not to refer a question for a preliminary ruling theoretically could infringe the right to a fair trial, the author analyses the practical application of the “arbitrariness rule” and discusses whether the European Court of Human Rights has established any specific criteria that national courts are required to bring into play in order to substantiate the decision not to refer. (shrink)

The legal regime of the Economic and Monetary Union (EMU) is differentiated in two ways. While the rules on economic union apply with few exceptions to all member states, most Treaty provisions on monetary union are applicable only to those member states that have introduced the common currency. The Treaty on the Functioning of the European Union (TFEU) establishes a system of overlapping competences consisting primarily of measures adopted by the member states. During (...) the initial phase of the European Economic Community (EEC), exchange‐rate fluctuations or flexible exchange rates obstructed the development of a workable capital market. The Treaty of Lisbon provides that the European Union is to establish a monetary union whose currency is the euro. The TFEU provides for institutional and procedural mechanisms aimed at protecting the stability of the common currency. The euro has become a stable and internationally recognized currency. (shrink)

In this article, we reflect on our personal experience of acting as ‘independent academic experts’ in an European Union policy forum, to reflect on how the EU utilises gender to legitimise certain policy discourses in combating sex trafficking. Starting from our personal experience, we draw on wider feminist research on gender expertise and on Fraser’s new reflexive theory of political injustice, to consider how the EU structures debates in this area to determine ‘who’ is entitled to speak and (...) be heard on this issue. In a context in which sex trafficking policy intersects with a variety of competing agendas on – among other things – law and order, organised crime, immigration, asylum and border security policy, our argument will suggest that the exclusion of critical feminist voices and lack of alternative perspectives permits much scope for continuing inequality and injustice. (shrink)

In the post-Single European Act period, debates around European identity have intensified, particularly in the context of EU enlargement. The EU’s move to being a supranational political entity in the past two decades has caused serious concerns in some sections of the elite and people across the EU member states. While French and Dutch rejections of the constitutional treaty set an important milestone, Turkey’s quest for the EU membership has complicated to a great extent controversies on (...) class='Hi'>European identity. The reviewed books here contribute to efforts to understand the extent to which European identity and Turkey’s bid for the EU membership has entangled. It is more likely to witness debates around both European identity and Turkey’s candidacy for the Union for many years to come; therefore, these books will more likely remain relevant for the academic and policy circles. (shrink)

The very idea of the draft European Union (EU) Constitutional Treaty was reexamined after the failed French and Dutch referendums and the Treaty of Lisbon (also known as the Reform Treaty) was drafted and entered into force on 1 December 2009 after it’s ratification by all 27 member states. The traditional notion of a Constitution as a national legal document establishing the social contract and a moral minimum for a particular socially unified group still prevails (...) in legal and political thinking. Indeed, the European Union has some constitutional elements, but absence of the so called ‘European demos’ prevents us from recognizing the founding treaties as a real ‘European constitution’ in the proper sense of the word. The author agrees with the decision to exclude the term ‘Constitution’ from the title and contents of the new Reform Treaty. The author also suggests that softer terms, like ‘European constitutional order’ and ‘European Constitutionalism’ might better reflect the scope of contemporary European integration than the term of ‘a Constitution for Europe’. A rethinking of the ‘constitutional core’ of the Lisbon Treaty was inspired following the so-called Lisbon judgments of Czech, Latvian and German constitutional courts. (shrink)

The power to integrate of the European Union (EU) is after all interlinked to the ability of approximating the different law systems of the member states. On the other side the EU-Treaty stipulates the respect of the national identities of even those states as a core principle (Art. 6 para. 3). Thus a rational manner of law approximation is needed which is sensitive to the law-cultural particularities of the member states. The article tries to develop a coherence-based (...) approach of legal reasoning, which gets the sensitivity looked for by applying the method of comparative law. While differentiating between a horizontal (EU) and a vertical (member states) coherence the method of comparative law can identify meeting points of EU- and member state law. This will, eventually, be demonstrated at the decision of the European Court of Justice (ECJ) in the case of Simone Leitner vs. TUI Germany. (shrink)

Should the EU be a federal union or an intergovernmental forum? Recently, demoicrats have been arguing that there exists a third alternative. The EU should be conceived as a demoicracy, namely a ‘Union of peoples who govern together, but not as one’. The demoi of Europe recognise that they affect one another’s democratic health, and hence establish a union to guarantee their freedom qua demoi – which most demoicrats cash out as non-domination. This is more than intergovernmentalism, (...) because the demoi govern together on these matters. However, if the union aims at protecting the freedom of the different European demoi, it cannot do so by replacing them with a ‘superdemos’, as federalists want. This paper argues that demoicracy does possess distinctive normative features; it claims, however, that an institutional choice between intergovernmentalism and federalism is necessary. Depending on how we interpret what the non-domination of demoi requires, demoicracy will either ground a specific way of practicing intergovernmentalism or a specific form of federalism. It cannot, however, ground an institutional model which is genuinely alternative to both. (shrink)

Since 2001, the Commission of the European Union has instigated Peer Reviews to help countries preparing to accede to the European Union. Added to this has been the provision of workshops and individual expert inputs. This article recounts the experiences of the author in this process. It focuses on how a single directive has revealed major ethical challenges for nurses, their national associations and state governments as they seek to implement the changes required. In particular a (...) sub-agenda has emerged relating to general education, access to higher education and the position of women in these countries. The ethical challenges include freedom to practice and creation of competent authorities to provide proper oversight of the health care professions. In 2011, the directive is being reviewed and this article offers arguments for its continuation, even in an unreformed state. (shrink)

When, on December 7, 2000, the European Parliament, the Council and the Commission proclaimed solemnly in Nice the Charter of Fundamental Rights of the European Union, many thought that European integration was practically guaranteed and that the Charter would soon be made into a binding legal text. Since then, the two attempts to enact a European consitution – the Constitutional Treaty for the European Union of 2004 and the arguably less ambitious (...) class='Hi'>Treaty of Lisbon of 2007 – both failed. Further efforts at unification have stagnated, in part due to the 2008 economic crisis and the European Union’s inability to coordinate responses to issues as serious as immigration, the refugee crisis, and terrorism. In this paper, I examine a theoretical counterpoint to that bleak perspective for European unification, to wit, Jürgen Habermas’ eurofederalist proposal of the postnational democracy and European constitutional patriotism. (shrink)