Member State BITS after the Treaty of Lisbon: solid foundation or first victims of EU investment policy? Research Paper in Law, 02/2012

[Introduction.] This paper discusses the uncertain future of Member State BITs with third countries in the light of the developing EU investment policy. The question will be examined on the basis of the proposed Regulation establishing transitional arrangements for bilateral investment agreements between Member States and third countries presented by the Commission on 7 July 20101 and the European Parliament’s Position adopted at first reading on 10 May 2011.2 The proposed Regulation and the Commission Communication of the same day are meant to be the “first steps in the development of an EU international investment policy”.3 The first chapters present the legal framework relevant for this question and its evolution to better understand the particular challenges of this transition process. The second chapter examines the relationship of EU law and investment law, with a brief introduction of the notion of investment law and the scope of the EU’s new investment competence. The third chapter outlines the legal framework for the continuation and termination of treaties under international and EU law. The fourth chapter concerns BITs, first covering the particular nature of BITs and then the CJEU’s judgments in the BIT Cases of 2009. The fifth chapter consists of a step by step analysis of the different provisions of the proposed Regulation.

Reflections on the institutional balance, the Community Method and the interplay between jurisdictions after Lisbon. Research Papers in Law, 04/2012

[Introduction.] Over the last two years, not only inside but also outside the framework of the EU treaties, far reaching measures have been taken at the highest political level in order to address the financial and economic crisis in Europe and in particular the sovereign debt crisis in the Euro area. This has triggered debates forecasting the “renationalisation of European politics.” Herman Van Rompuy, the President of the European Council, countered the prediction that Europe is doomed because of such a renationalisation: “If national politics have a prominent place in our Union, why would this not strengthen it?” He took the view that not a renationalisation of European politics was at stake, but an Europeanization of national politics emphasising that post war Europe was never developed in contradiction with nation states.1 Indeed, the European project is based on a mobilisation of bundled, national forces which are of vital importance to a democratically structured and robust Union that is capable of acting in a globalised world. To that end, the Treaty of Lisbon created a legal basis. The new legal framework redefines the balance between the Union institutions and confirms the central role of the Community method in the EU legislative and judiciary process. This contribution critically discusses the development of the EU's institutional balance after the entry into force of the Treaty of Lisbon, with a particular emphasis on the use of the Community Method and the current interplay between national constitutional courts and the Court of Justice. This interplay has to date been characterised by suspicion and mistrust, rather than by a genuine dialogue between the pertinent judicial actors.

Talking with the “pouvoir constituant” in times of constitutional reform: The European Court of Justice on Private Applicants’ Access to Justice. Research Paper in Law 3/2003

[From the Introduction]. European lawyers, at least those dealing predominantly with institutional matters, are living particularly interesting times since the setting-up of the “European Convention on the Future of Europe” in December 2001.1 As the Convention’s mandate, spelled out in rather broad terms in the European Council’s declaration of Laeken,2 is potentially unlimited, and as the future constitution of the European Union (EU) will be ultimately adopted by the subsequent Intergovernmental Conference (IGC), there appears to be a great possibility to clarify, to simplify and also to reform many of the more controversial elements in the European legal construction. The present debate on the future of the European constitution also highlights the relationship between the pouvoir constituant3 and the European Courts, the Court of Justice (ECJ) and its Court of First Instance (CFI), who have to interpret the basic rules and principles of the EU.4 In that light, the present article will focus on a classic theme of the Court’s case law: the relationship between judges and pouvoir constituant. In the EU, this relationship has traditionally been marked by the ECJ’s role as driving force in the “constitutionalisation” of the EC Treaties – which has, to a large extent, been accepted and even codified by the Member States in subsequent treaty revisions. However, since 1994, the ECJ appears to be more reluctant to act as a “law-maker.”5 The recent judgment in Unión de Pequeños Agricultores (UPA)6 – an important decision by which the ECJ refused to liberalize individuals’ access to the Community Courts – is also interesting in this context. UPA may be seen as another proof of judicial restraint - or even as indicator of the beginning of a new phase in the “constitutional dialogue” between the ECJ and the “Masters of the Treaties.”

A realistic bridge towards European banking union. Bruegel Policy Contribution 2013/09, June 2013

New obstacles to the European banking union have emerged over the last year, but a successful transition remains both necessary and possible. The key next step will be in the second half of 2014, when the European Central Bank (ECB) will gain supervisory authority over most of Europe’s banking system. This needs to be preceded by a rigorous balance sheet assessment that is likely to trigger significant bank restructuring, for which preparation has barely started. It will be much more significant than current discussions about a bank resolution directive and bank recapitalisation by the European Stability Mechanism (ESM). The 2014 handover, and a subsequent change in the European treaties that will establish the robust legal basis needed for a sustainable banking union, together define the policy sequence as a bridge that can allow Europe to cross the choppy waters that separate it from a steady-state banking policy framework.

Bridging qualified majority and unanimity decision-making in the EU. IHS Political Science Series No. 132, February 2013

The EU has tried to bridge decision making by qualified majority and unanimity over the years by expanding qualified majorities (consensus) or by making unanimities easier to achieve. I call this decision-making procedure q-“unanimity” and trace its history from the Luxembourg compromise to the Lisbon Treaty, and to more recent agreements. I analyze the most recent and explicit mechanism of this bridging (article 31 (2) of the Lisbon Treaty) and identify one specific means by which the transformation of qualified majorities to unanimities is achieved: the reduction of precision or scope of the decision, so that different behaviors can be covered by it. I provide empirical evidence of such a mechanism by analyzing legislative decisions. Finally, I argue that this bridging is a ubiquitous feature of EU institutions, used in Treaties as well as in legislative decision-making.

Fundamental rights in the EU: three years after Lisbon, the Luxembourg perspective. Research Paper in Law (Cooperative Research Paper) 02/2013

For more than 10 years after the signature of the Treaty of Rome in 1957, the question of the protection of human rights had never been in issue. The emphasis was on the creation and consolidation of the common market establishing the free movement of persons, of services, of goods and of capital. Neither the initial Treaties nor the jurisprudence of the Court made any reference to the protection of human rights in the process of the creation of the common market. It all started in 1969 in the Stauder case with this very short sentence: “Interpreted in this way the provision at issue contains nothing capable of prejudicing the fundamental human rights enshrined in the general principles of Community law and protected by the Court”. Forty years later, with the adoption of the Treaty of Lisbon, which came into force on 1 December 2009, fundamental rights are part of primary law. The achievement has been remarkable if we consider the very beginning of the process. It is not an exaggeration to say that the Court with its jurisprudence has been the driving force and the source of inspiration for this achievement.

All Roads Lead to Rome: Background, Context and Legacy of the Treaty on the European Community. Jean Monnet/Robert Schuman Paper Series Special Issue 3, August 2012

From the Introduction. The rejection by the French National Assembly of the ill-fated European Defense Community (EDC) Treaty in August 30, 1954, together with the automatic shelving of the equally faulty European Political Community (EPC) proposal, put an end, at least for the time being, to any form of political and military union of the existing Western Europe on a supranational level. The times were difficult in Europe and the international atmosphere was cloudy. The end of the Korean War coincided with the insistence of the Soviets to stick to a policy of détente, leading to the suppression of the Hungarian rebellion. France was facing opposition to her colonial presence in Indochina, as well as in North Africa. But the crisis of Suez prompted the French government to distance itself from the British and the United States. The defeat of the EDC and EPC was not going to be the end of the story and the dream inaugurated by Monnet and Schuman in 1950. It was not long before plans in favor of a European re-launch were taking shape. 1

What Does the Lisbon Treaty Change Regarding Subsidiarity within the EU Institutional Framework?

he principle of subsidiarity refers in general to the choice of the most suitable and efficient level for taking policy action. The European Union associates subsidiarity with the way of taking decisions ‘as closely as possible to the citizen’, as it is referred to in the EU treaties. Thus, ensuring the respect of subsidiarity within the EU legislative framework ensures that any EU action is justified when proposing draft legislative acts. The Lisbon Treaty establishes new mechanisms reinforcing subsidiarity control, both ex ante and ex post the EU legislative process, and by doing so, enhances mainly the role of the national parliaments (and to a lesser extent the regional parliaments) and the Committee of the Regions. But in the end, this is a way of ensuring legitimacy of the EU action as it is quite often questioned, especially in times of crisis. Years of practice will tell whether the words will join reality.

l bilanciamento tra le libertà economiche e i diritti sociali collettivi operato dalla Corte di Giustizia è un contemperamento tra diritti equiordinati?* = The balance between economic freedoms and collective social rights and actions; Court of Justice is a choice between rights equiordinati? Actions by the Court of Justice. WP C.S.D.L.E. “Massimo D’Antona”.INT – 98/2012

In the Viking and Laval judgments and more recently in the Comm. v. Germany ruling, the Court of Justice applied the proportionality test to collective rights, setting a series of restrictions to the exercise of the right to strike and the right to collective bargaining. The way the ECJ balances the economic freedoms and the social rights is indeed very different from that of the Italian Constitutional Court. Unlike the European Union Treaties, the Italian Constitution recognizes an important role to the right to take collective action which has to be connected with article 3, paragraph 2, consequently the right of strike is more protected than the exercise of economic freedoms.

Not Making the Lists: The Underrepresentation of Women in EU Politics and Business. EPIN Commentary No. 12, 22 August 2013

The EU has recently been pushing for legislation to strengthen the gender balance on company boards in its member states and indeed, the principle of gender equality is enshrined in the European treaties. Yet, as Vilde Renman points out, women are clearly underrepresented in top positions within EU institutions themselves. The upcoming European Parliament elections are an opportunity for the EU to appoint more women at the highest levels of administration and legislature, thereby setting an example for companies, member states and citizens alike.

Lisbon Treaty: Year I

The completion of the ratification of the Lisbon Treaty (from now on the Treaty) in November and its entry into force on 1 December 2009 marked the end of an extraordinary and unprecedented lengthy process of institutional change of the European Union. The Treaty had been signed on 13 December 2007, almost two years before its entry into force, by no means an excessive duration compared to the ratification of previous modifications of the Treaties. But the Treaty – in strictly legal terms a substantial set of amendments to two previous treaties renamed in the process – has a long history. Initial proposals for institutional reform date back to the German reunification in 1989-1990. They went through lengthy debates that eventually led to the European Convention and the 'Draft Treaty establishing a Constitution for Europe' of 20031 and from there to the 'Treaty establishing a Constitution for Europe' of 20042. If the current form of the Treaty is a clear consequence of the difficulties of the ratification process of the Constitution, the ideas that provide the substance can be traced back to the final years of the past century. The pages that follow are not a legal analysis but an attempt to identify changes and to assess their significance3.

European Central Bank accountability: how the monetary dialogue could be improved. Bruegel Policy Contribution 2014/04, March 2014

According to the European Union Treaties, the European Central Bank (ECB) is accountable to the European Parliament. In practice, this accountability takes mainly the form of a quarterly Monetary Dialogue between the president of the ECB and the European Parliament Economic and Monetary Affairs committee. We assess the impact of the Monetary Dialogue. We describe the ECB’s accountability practices, compare them to those of other major central banks and provide an assessment of the dialogue in the last five years. The Monetary Dialogue could be improved and we make recommendations on this. We also consider what role the Monetary Dialogue could play in the current context of the ECB’s evolving role. We discuss in particular forward guidance and quantitative easing. We review the main features and the way in which those policies have been implemented by other central banks. We then suggest the appropriate role for the Monetary Dialogue in relation to each of those policies. We conclude with some observations on the function of the Monetary Dialogue after the establishment of a banking union in Europe.

Shifting EU Institutional Reform into High Gear. Report of the CEPS High-Level Group. CEPS Task Force Reports

To contribute to the important debate on EU institutional reform in the run-up to the European Parliament elections and the start of a new Commission, CEPS formed a High-Level Group on EU Institutional Reform under the leadership of Danuta Hübner MEP and member of the CEPS Board of Directors. The report of this distinguished group of MEPs, former and current EU institutional members and leading scholars on EU law and institutional affairs focuses on reforms that could be taken within the framework of the current treaties to build a more responsive and accountable Union. The report analyses the main inter- and intra-institutional weaknesses in terms of efficiency, democracy and differentiation and puts forward a number of recommendations addressing issues such as the reorganisation of the College of Commissioners, the promotion of strategic legislative planning, the enhancement of the role of the EP and the rotating Presidency of the Council, the improvement of the democratic accountability of the European Council and the adequate engagement of the national parliaments.

Addressing weak inflation: The European Central Bank's shopping list. Bruegel Policy Contribution 2014/05, May 2014

There are clear benefits to price stability. High inflation can distort corporate investment decisions and the consumption behaviour of households. Changes to inflation redistribute real wealth and income between different segments of society, such as savers and borrowers, or young and old. Price stability is therefore a fundamental public good and it became a fundamental principle of European Economic and Monetary Union. But the European Treaties do not define price stability. It was left to the Governing Council of the European Central Bank (ECB) to quantify it: "Price stability is defined as a year-on-year increase in the Harmonised Index of Consumer Prices (HICP) for the euro area of below 2%"[1]. The Governing Council has also clarified that it aims to maintain inflation below, but close to, two percent over the medium term, though it has not quantified what 'closeness' means, nor has it given a precise definition of the 'medium term'[2]. The clarification has been widely interpreted to mean that the actual target of the ECB is close to, but below, two percent inflation in the medium term.

British Balance of Competence Reviews, Part II: Again, a huge contradiction between the evidence and Eurosceptic populism. EPIN Paper No. 40, June 2014

This paper is the second in a series for a CEPS project entitled “The British Question and the Search for a Fresh European Narrative”. It is pegged on an ambitious exercise by the British government to review all the competences of the European Union on the basis of evidence submitted by independent stakeholders. In all, 32 sectoral policy reviews are being produced over the period 2013-2015, as input into public information and debate leading up to a referendum on whether the UK should remain in, or secede from, the EU, planned for 2017. This second set of reviews covers a broad range of EU policies (for the single market for goods, external trade, transport policy, environment, climate change, research, asylum, non-EU immigration, civil judicial cooperation, tourism, culture and sport). The findings confirm what emerged from the first set of reviews, namely that there is little or no case for repatriation of EU competences at the level they are defined in the treaties. This does not exclude that at a more detailed level there can be individual actions or laws that might be done better or not at all. However, that is the task of all the institutions to work at on a regular basis, and hardly a rationale for secession. For the UK in particular the EU has shown considerable flexibility in agreeing to special arrangements, such as in the case of the policies here reviewed of asylum, non-EU immigration and civil judicial cooperation. In other areas reviewed here, such as the single market for goods, external trade, transport, environment, climate change and research, there is a good fit between the EU’s policies and UK priorities, with the EU perceived by stakeholders as an ‘amplifier’ of British interests.