Search Results

This chapter looks at the role of constitutional courts from a compliance perspective. It focuses on how constitutional courts deal with challenges of unconstitutionality in the course of application of EU law in the member states. It starts with a short overview of the European mandate for national courts. It then discusses how constitutional courts may hinder or facilitate compliance with EU law. It argues that, despite their firm position of upholding the constitution vis-à-vis EU law and some cases of restricting the full effects of EU law, constitutional courts in several ways may act as facilitators of compliance for member states. They do so, for instance, by finding the least harmful solution for the full application of EU law whilst constructing constitutional reservations; by instructing other political branches on how to introduce constitutional or legislative amendments in order to ensure full compliance; and in the pre-accession setting, by putting forward the obligation to interpret national law in conformity with EU law within the ambit of the obligation of approximation.

This chapter explores the contrasting approaches of scholars on the subject of EU legal compliance from the disciplines of political science and international relations. It discusses theoretical approaches to understanding compliance with EU law, empirical findings on compliance with EU law, and variations in scholarship and directions for future research.

This chapter assesses how national courts can induce compliance with international and European law, and compares the relative strengths of national courts in this regard under, respectively, international and European law. It is based on the assumption that while national courts are obviously not the primary or only cause of compliance, they can, in particular circumstances and under particular conditions, ensure that states comply with their obligations under international and/or European law, both in individual cases and at a more structural level. The chapter is organized as follows. Sections 2 and 3 discuss the relative role of courts as agents of compliance and the key condition of independence of courts, respectively. Section 4 examines four key principles that govern the practice of national courts in terms of their compliance-effects: supremacy, direct effect, consistent interpretation, and liability. Section 5 explores the interaction between international and European law in so far as they relate to the practice of national courts. Finally, Section 6 draws some conclusions.

Considers the role that the European Court of Justice (ECJ) has played in the evolution of EU law, and places recent developments in the context of longer‐term trends in the jurisprudence of the Court. Rather than debating the question of what kind of institutional actor the ECJ is within the EU political system, the chapter proceeds on the premise that the Court is a purposive actor that nonetheless considers itself to be constrained in significant ways by the text of the EC Treaties, by its own previous body of case law, and in different ways by the political and social context within which it operates. Reflects on the polity‐shaping impacts of the case law of the ECJ, including the effects on EU and national political organizations and on the notion of a European citizen, and, finally, how the Court may or may not be responding to the changing nature of EU law. Various case studies on case law are included. The four sections of the chapter are: Introduction; The Court and the Political Decision‐Making Bodies: Policing of the Bounds of EU Power; The Court and the Individual; and Conclusion.

Compliance is usually associated with those means of enforcement based upon coercion. In the European Union (EU) legal order, compliance with EU law by the addressees of EU law and policies — both private actors and national public powers — typically refers to means of enforcement, such as administrative control and litigation in the courts, followed by sanctions. This chapter focuses on the variety of steering mechanisms that combine authority with non-coercive elements. It is organized as follows. Section 2 identifies the steering instruments that have emerged and consolidated in the last two decades. Section 3 assesses their novelty as modes of governance. Section 4 discusses some of the problems raised by the functioning of the emerging governance of compliance. Finally, Section 5 focuses is devoted to the perspectives of development of the governance of compliance.

Provides an account of the status of the enlargement process in the EU, both in the candidate countries and in terms of institutional changes at the EU level. In particular, it argues that European enlargement is a combination of ‘institutional and political hypocrisy’. While political hypocrisy is the result of the purposeful strategy of specific actors that wilfully disobey EU law, institutional hypocrisy results from involuntary non‐compliance due to the lack of capacity or clarity; both have been a systemic feature of legal integration and a major driving force of the European constitutionalization process. However, as the heterogeneity of the EU member states increases, enlargement may well lead to a substantial erosion of the legal and policy coherence of the EU. The first section of the chapter discusses the problem of non‐compliance, the second characterizes the European polity as resulting from the enmeshment of the process of Europe's legal integration with different national legal systems, the third and fourth sections discuss the southern and eastern enlargements of the EU, and the fifth section concludes by pointing to differences in national legal traditions that make institutional and political hypocrisy a systemic outcome of the process of European enlargement.

Provides an introduction to the book, giving a general overview of the evolution of EU law and politics with emphasis on the growing intersection between these two disciplines. The first section describes the approach taken (use of the dynamic interaction between law, politics, and society as a starting point to think critically about recent developments and future innovations in European integration and EU studies), and the objectives. These are: to provide an overview of key events of 2000–2002 in the EU, while illuminating how these institutional (formal legal) developments are linked to an ongoing interaction between law, politics, and society; to illuminate why the key events since 2000 are also distinct from previous trends; and to provide a unique and interdisciplinary approach to studying the EU by bringing together both legal scholars and political scientists. The second section looks at law, politics, and society as a process of institutional change, and outlines the varying approaches taken in the different chapters. The last section provides an overview of the book by part and chapter.

Examines the impact of EU institutional structure on individual rights litigation. Kelemen argues that EU institutions have encouraged a particular type of law and regulation, ‘adversarial legalism’, a factor that has led to an increased amount of litigation by both public authorities and private parties. The analysis illustrates how the creation of EU rights empowers societal actors in the enforcement of EU law and encourages strict centralization of enforcement by the European Commission. Kelemen explores various public‐interest legal domains to illustrate how this enforcement mechanism has shifted the balance of power away from member state governments. The five sections of the chapter are: Introduction; The Institutional Foundations of the EU Rights Revolution—an examination of how the basic institutional structure of the EU is conducive to the proliferation of rights and an adversarial litigious approach to enforcement; The Legal Foundations of the EU Rights Revolution—a review of recent developments in EU law that have expanded the legal basis for EU rights litigation; The Societal Foundations of the EU Rights Revolution—an investigation of the variety of social and institutional arrangements at the national level that are likely to influence patterns of rights litigation; and Conclusion—a presentation of findings from a survey of EU interest associations concerning their use of litigation strategies.

Chapter 6 addresses the Union law effects of EU foreign investment law. It begins with identifying the EU law rights and obligations of EU institutions and Member States arising from the regulation of foreign investment by the EU, focusing on the Union law obligation to comply and perform EU IIAs. Chapter 6 looks also extensively into the scope and application of the Union law obligation to respect the primacy and autonomy of Union law in the field of foreign investment regulation. It examines the compatibility of EU IIAs and, more importantly, of Member States BITs with EU law, it identifies the violations of Union law and assesses the suggested proposals for their remedy. This chapter considers also the enforceability of these Union law obligations, focusing on the scope of judicial review of EU and Member States actions in light of EU IIAs and the creation of individual rights.

Focusses on EU immigration policy. While providing an overview of the current status of EU immigration policy, Givens and Luedtke also examine the various national‐level factors from party politics to citizen action that can influence the direction and shape of new EU laws. The analysis reveals that harmonization is more difficult in areas of immigration policy that are highly politicized at the national level. After an introduction, the second section of the chapter proposes a model of how EU immigration policy is harmonized, and how this harmonization can be blocked or restricted. The third section traces the history of EU immigration policy harmonization, focussing on European Court of Justice case law in respect of Third‐country nationals, and the fourth concludes.

This chapter analyses the obligations concerning the enforcement of substantive Union policies by the member states within the national legal systems. The use of criminal penalties for the enforcement of substantive Union law arises in two main categories of situation. The first can usefully be termed the ‘velvet glove’: in the absence of Union legislation prescribing precise sanctions for its own enforcement, the member states are free to impose appropriate sanctions within their own legal systems — including penalties of a criminal nature — subject to various obligations imposed under Union law as interpreted by the Court in the famous Greek Maize ruling. In the second situation, the Union legislature positively requires the member states to criminalize certain infringements of Union law, and may even prescribe the detailed rules governing the imposition of liability and the type/level of sanction. That ‘iron fist’ can claim a constitutional provenance both more recent and more rumbustious than the Greek Maize jurisprudence: pre-Lisbon, bitter institutional disputes about whether criminal sanctions could or should be imposed under the First (or instead the Third) Pillar culminated in the Court's controversial rulings in the Environmental Crimes and Ship-Source Pollution cases; since 1 December 2009, the revised provisions of the Treaty on the Functioning of the European Union have radically changed the relevant legal framework once again.

This chapter examines the ways in which European sanctions against private individuals clash with the well-established right of access to justice, both under the European Convention on Human Rights (ECHR) and under EU law. Particular attention is paid to the criminal implications of individual sanctions. The structure of the chapter is as follows. Section 1 outlines the commitment of the EU to the rule of law. Section 2 emphasizes the importance of the ECHR for EU law and points out the difference of fundamental rights protection under the ECHR and under EU law. Section 3 conducts a detailed analysis of whether and to what extent those listed as terrorist suspects under Union law and those sanctioned by the Community can rely on Article 6 ECHR in light of the case-law of the European Court of Human Rights (ECtHR). It shows that both the Court of First Instance (CFI) and the ECtHR departed from established standards of fundamental rights in cases concerning individual sanctions. It is submitted that those targeted by European sanctions against individuals have a right to judicial review according to Article 6 ECHR and, even if only applied subsidiarily, a right to an effective remedy under Article 13 ECHR. It is further argued that the criminal characteristics of individual sanctions require a strict application of Article 6 ECHR.

Brings together resources on conducting both qualitative and quantitative research on law and politics in the EU, presenting a critical discussion of research design and methodology while at the same time offering a compendium of practical research tools. Includes research tips, such as how to gain access to EU organizations in Brussels and Luxembourg, and a list of quantitative resources, including databases such as the Eurobarometer surveys and EuroStat. After an introduction, the chapter is organized in five further sections. The second section offers some observations about the wealth of research questions that could be asked about the EU, and suggests that the nature of the question can and should guide researchers in the identification of relevant theories, the formulation of testable hypotheses, and the design of a research project. The third section reviews the availability of both qualitative and quantitative data, including both official EU sources and innovative datasets compiled by EU scholars, the fourth and fifth sections offer some ‘nuts‐and‐bolts’ advice for scholars undertaking fieldwork at the Brussels and Luxembourg headquarters of the primary EU institutions, and the last offers conclusions.

Assesses the interaction between developments in EU law and the politics of integration, and is primarily concerned with the impacts of the courts on the evolution of EU institutions (rules and procedures). It gives a broad‐gauge overview of the development of the legal system and considers the impact of adjudicating European law on EU political developments. Stone Sweet then relates both European integration theory and methodology, identifying if, how, and why these theories can help understanding of the evolution of the EU legal system. Proceeds as follows: the first section, Integration and the Courts, examines the sources and consequences of the constitutionalization of the legal system; the second and third sections (The Evolution of the Treaty of Rome, and The Legislative Process) evaluate the role of the courts in the institutional evolution of the EU, and the impact of that evolution on the treaty revision and legislative processes; the Conclusion briefly considers the Europeanization of the law, an important phenomenon implicated in various ways throughout the chapter.

Armstrong links macro structures to the micro level (individual action) by providing a critical analysis of the institutionalization of new modes of governance and their impact on civil society and democratic politics. The argument is presented with respect to a particular new mode of governance, the open method of co‐ordination (or OMC), which is seen as posing challenges for integration theories that assume that law and courts would be central to understanding EU governance. OMC does not rest on the instrumental usage of EU law to achieve its goal and triggers law‐production at the national rather than the EU level. Focussing on the application of the OMC to the fight against poverty and social exclusion, Armstrong elaborates the tension (and potential pitfalls and promise) this new mode of governance presents for EU democracy. The six sections of the chapter are: Introduction; OMC and Integration Theory; Institutional Context and Change: Systemic Discourses, Rules and Norms—an analysis of the systemic context of OMC inclusion policy; The Organizational, Procedural, and Substantive Levels of Policy Development; Mobilizing Actors—the roles of civil society actors at national/subnational and transnational levels in the OMC inclusion process; and Conclusions.

This chapter on the national co-ordination of European Union (EU) policy in Italy discusses the frequent failures of Italian policies concerning the EU, which, in some cases, have become a European problem. Although other member states frequently face similar problems, there is a twofold difference between Italy and the other countries: first, of scale, and second of the nature of the interests concerned, since many of the complaints about Italy concern EU policies that provide Italy with financial benefits; a double contradiction thus arises between the interests of the EU and national interests. These problems raise two main questions: are the policy failures a consequence of treating European integration as a relatively minor issue in spite of the diffuse pro-integration attitude constantly shown by public opinion; or are they the result of the lack of co-ordination tools and processes at the institutional and political level in Italy? The chapter considers these questions in five main sections: The Failures of EU Policy-making in Italy (an identification and measurement of the problem); The Importance of the EU in Law and Policy-making in Italy; Inadequate Co-ordination as the Source of Italy’s ‘Failures’ in Europe; and European Policy Co-ordination: The Past, and The Present. The conclusion suggests that despite that centrality of concern for the EU in Italy, the country has been slow to create effective and efficient mechanisms for co-ordinating the formulation and implementation of EU law; although there have been some advances, fragmentation and duplication still appear to dominate.