At any price: Russia is embarking on the construction of South Stream. OSW Commentary No. 98, 2012-12-07

Gazprom is determined to continue its efforts to build the South Stream gas pipeline regardless of the slump on the European gas market and the fact that there is sufficient capacity already in the existing transport infrastructure. The official inauguration of the maritime section of South Stream was held on 7 December this year, but the construction itself will commence in 2014. The agreements concluded so far, both intergovernmental and between corporations, are necessary for the launch of the construction of the new pipeline, but still do not guarantee that the project will be completed on time. First of all, some legal problems have yet to be resolved, such as the evaluation of the compliance of the planned actions with the ‘third energy package’ or the fact that ecological surveys required under European law need to be carried out. Secondly, given the present situation on the European gas market and medium-term forecasts, the high cost of implementation of this project and the maintenance expenses of existing pipelines – which are not being used to full capacity – the new project seems to be unfeasible. However, Gazprom’s determination in its efforts to build the pipeline proves that Russia is ready to take a high economic risk to maintain its dominant position on the European gas supply market; it will restrict the possibilities of alternative infrastructural projects being implemented (above all, the EU’s Southern Corridor) and use the construction of new pipelines as an instrument of political pressure on the present transit countries (especially Ukraine).

Will the construction of a nuclear power plant in Belarus exacerbate the country's energy dependence on Russia? OSW Commentary No. 87, 2012-07-23

During Russian PM Dmitry Medvedev’s working visit to Minsk on 18 July, Russia and Belarus signed a general contract for the construction of a nuclear power plant in Belarus. The signature brought to an end the complex negotiations which had been underway since January 2009 involving the leadership in Minsk, the Russian government and Atomstroyexport, the Russian company that will be the main contractor of the investment. However, the power plant’s future ownership structure, management arrangements and terms and conditions of profit sharing remain unclear. The Belarusian leadership hopes that with the launch of the nuclear power plant, it will be able to reduce gas imports from Russia, gas being the main resource used in producing heat and electricity in Belarus. This should in turn reduce the costs of energy generation. In addition, Minsk expects that the new investment will allow it to export electricity surpluses to the European Union, including Poland. Agreements concerning the power plant have been concluded over the last year or so and, according to these, Russia has acquired partial control of the Belarusian electricity grid, especially with regard to the transmission of energy to foreign markets. Russia is also the sole creditor and contractor for the investment, and the sole future provider of nuclear fuel. Therefore, implementation of the project will exacerbate Minsk’s already significant dependence on Moscow in energy and political terms.

Casual but Smart: The Court’s new clothes in the Area of Freedom Security and Justice (AFSJ) after the Lisbon Treaty. Research Papers in Law, 2/2008

Introduction. Unintended as it was, the European Court of Justice (ECJ, the Court, the Court of the EU) has played an extremely important role in the construction of the Area of Freedom Security and Justice (AFSJ). The AFSJ was set up by the Treaty of Amsterdam in 1997 and only entered into force in May 1999. The fact that this is a new field of EU competence, poses afresh all the fundamental questions – both political and legal – triggered by European integration, namely in terms of: a) distribution of powers between the Union and its Member States, b) attribution of competences between the various EU Institutions, c) direct effect and supremacy of EU rules, d) scope of competence of the ECJ, and e) extent of the protection given to fundamental rights. The above questions have prompted judicial solutions which take into account both the extremely sensible fields of law upon which the AFSJ is anchored, and the EU’s highly inconvenient three-pillar institutional framework.1 The ECJ is the body whose institutional role is to benefit most from this upcoming ‘depilarisation’, possibly more than that of the European Parliament. This structure is on the verge of being abandoned, provided the Treaty of Lisbon enters into force.2 However spectacular this formal boost of the Court’s competence, the changes in real terms are not going to be that dramatic. This apparent contradiction is explained, to a large extent, by the fact that the Court has in many ways ‘provoked’, or even ‘anticipated’, the depilarisation of its own jurisdictional role, already under the existing three-pillar structure. Simply put, under the new – post Treaty of Lisbon – regime, the Court will have full jurisdiction over all AFSJ matters, as those are going to be fully integrated in what is now the first pillar. Some limitations will continue to apply, however, while a special AFSJ procedure will be institutionalised. Indeed, if we look into the new Treaty we may identify general modifications to the Court’s structure and jurisdiction affecting the AFSJ (section 2), modifications in the field of the AFSJ stemming from the abolition of the pillar structure (section 3) and, finally, some rules specifically applicable to the AFSJ (section 4).

The Catholic Identity of Malta after Ten Years of Membership in the European Union: Challenges and Prospects. Occasional Paper 2/2014

Introduction. Ten years have elapsed since Malta’s accession in the European Union. One can still recall vividly the intense and acrimonious campaign prior to the membership referendum and the ensuing electoral victory that confirmed the Nationalist Party (PN) in power under the leadership of Edward Fenech Adami in 2003. In both cases the Maltese voted in favour of entry into the EU. During both exercises in democracy the Maltese were exposed to the rhetoric of both prophets of doom and prophets of plenty. For the former accession meant a loss of national and territorial independence, for the latter it meant the beginning of opportunity for all and, in some cases, the answer to all of Malta’s woes. Now, ten years later, a further appraisal of Malta’s membership and place in the European Union is called for. The purpose of this paper, however, is to reflect upon how this membership has affected the Roman Catholic Church in Malta and what prospects lie ahead for the Catholic community within Maltese society that remains in a state of constant flux on both the social and the religious level. It traces the major events that have accelerated the transformation of Malta into a secular society. The paper describes how these events, together with pressures that are being brought to bear by secular movements upon Maltese society, are profoundly affecting its Catholic identity and redrawing its moral landscape. It also discusses ways and means by which the Catholic Church in Malta can address these challenges and contribute towards the construction of a more humane Maltese society. In order to achieve this, it must first and foremost remain a coherent witness of a faith that is forever alive, dynamic and relevant.

An Exercise in Legal Honesty: Re-writing the Court of Justice and the Bundesverfassungsgericht. IHS Political Science Series No. 136, February 2014

At a time of crisis – a true state of emergency – both the Court of Justice of the European Union and the German Federal Constitutional Court have failed the rule of law in Europe. Worse still, in their evaluation of the ersatz crisis law, which has been developed in response to financial and sovereign debt crises, both courts have undermined constitutionality throughout Europe. Each jurisdiction has been implicated within the techocratisation of democratic process. Each Court has contributed to an incremental process of the undermining of the political subjectivity of European Citizens. The results are depressing for lawyers who are still attached to notions of constitutionality. Yet, we must also ask whether the Courts could have acted otherwise. Given the original flaws in the construction of Economic and Monetary Union, as well as the politically pre-emptive constraints imposed by global financial markets, each Court might thus be argued to have been forced to suspend immediate legality in a longer term effort to secure the character of the legal jurisdiction as a whole. Crisis can and does defeat the law. Nevertheless, what continues to disturb is the failure of law in Europe to open up any perspective for a return to normal constitutionality post crisis, as well as its apparent inability to give proper and honest consideration to the hardship now being experienced by millions of Europeans within crisis. This contribution accordingly seeks to reimagine each Judgment in a language of legal honesty. Above all, this contribution seeks to suggest a new form of post-national constitutional language; a language which takes as its primary function, proper protection of democratic process against the ever encroaching powers of a post-national executive power. This contribution forms a part of an on-going effort to identify a new basis for the legitimacy of European Law, conducted jointly and severally with Christian Joerges, University of Bremen and Hertie School of Government, Berlin. Differences do remain in our theoretical positions; hence this individual essay. Nevertheless, the congruence between pluralist and conflict of law approaches to the topic are also readily apparent. See, for example, Everson & Joerges (2013).

The expensive energy revolution in Germany. The implementation of the Energiewende is behind schedule. OSW Commentary No. 77, 2012-05-10

One year after the events of Fukushima the implementation of the new German energy strategy adopted in the summer of 2011 is being verified. Business circles, experts and publicists are sounding the alarm. The tempo at which the German economy is being rearranged in order that it uses renewable energy sources is so that it has turned out to be an extremely difficult and expensive task. The implementation of the key guidelines of the new strategy, such as the development of the transmission networks and the construction of new conventional power plants, is meeting increasing resistance in the form of economic and legal difficulties. The development of the green technologies sector is also posing problems. The solar energy industry, for example, is excessively subsidised, whereas the subsidies for the construction of maritime wind farms are too low. At present, only those guidelines of the strategy which are evaluated as economically feasible by investors or which receive adequate financial support from the state have a chance of being carried through. The strategy may also turn out to be unsuccessful due to the lack of a comprehensive coordination of its implementation and the financial burden its introduction entails for both the public and the economy. In the immediate future, the German government will make efforts not only to revise its internal regulations in order to enable the realisation of the energy transformation; it is also likely to undertake a number of measures at the EU forum which will facilitate this realisation. One should expect that the German government will actively support the financing of both the development of the energy networks in EU member states and the development of renewable energy sources in the energy sector.