Die deutsche Europapolitik unter den Vorgaben des Bundesverfassungsgerichts = The German European policy under the provisions of the Federal Constitutional Court. ZEI Discussion Paper No. C 218, 2013

No abstract.

Brèves observations sur la consécration constitutionnelle d’un droit de retrait volontaire = Brief comments on the constitutional recognition of the right to withdraw. Research Papers in Law, 5/2004.

No abstract.

The Europeanisation of Criminal Law and the Criminal Law Dimension of European Integration. Research Papers in Law, 3/2005

From the Introduction. In the academic year 1991-1992, Utrecht University, on my initiative, started to offer courses in European criminal law. This initiative came at a symbolic moment, just prior to the entry into force of the EU Treaty of Maastricht1 and the outlining of European policy in the areas of Justice and Home Affairs (JHA). The Director of the Legal Department, Paul DEMARET, was aware of the significance of this development and I have been given the opportunity to teach this subject at the College of Europe since 1995. Since then, JHA has evolved into one of the main areas of EU legislation. Now we are again on the threshold of an important historical feat. In June 2003, the European Convention reached agreement concerning a draft Treaty establishing a Constitution for Europe.2 The use of the term “Constitution” for the future EU Treaty is not simply cosmetic. The realisation has dawned that EU integration must be embedded in a treaty document which also regulates the rights and duties of citizens, not just with respect to European citizenship, but also with respect to, for example, Justice. Where JHA is concerned, this result acknowledges that the harmonisation of criminal law and criminal procedure and transnational cooperation cannot preclude the harmonisation of principles of due law and fair trial. Despite the substantial Europeanisation of criminal law, many criminal lawyers are defending the achievements and typicalities of their national criminal law like never before. EU initiatives are assessed from the perspective of the national agenda and national achievements. We are still too far removed from a European criminal law policy that is both European and enjoys national support. The core issue is therefore not how to keep our criminal (procedural) law national and free from European influences, but rather how to ensure democratic decision making, the quality of the constitutional state and the guarantees of criminal law in a national administrative model which has to operate increasingly interactively within a European and international context. In this contribution, the contours of the Europeanisation of criminal law are outlined and analysed. First, attention will be paid to the EC and, second, to the JHA. Following this, an evaluation and a look ahead at the current IGC are indicated.

The Convention on the Future of Europe: Extended Working Group or Constitutional Assembly? Research Papers in Law, 4/2005

From the Introduction. “We are a Convention. We are not an Intergovernmental Conference because we have not been given a mandate by Governments to negotiate on their behalf the solutions which we propose. We are not a Parliament because we are not elected by citizens to draft legislative texts. […] We are a Convention. What does this mean? A Convention is a group of men and women meeting for the sole purpose of preparing a joint proposal. […] It is a task modest in form but immense in content, for if it succeeds in accordance with our mandate, it will light up the future of Europe”.1 In his speech inaugurating the Convention process on 26 February 2002 in Brussels, Convention President VALÉRY GISCARD D’ESTAING raises three issues: first, he refers to the Convention’s nature and method; second, he talks of the Convention’s aim and output; and, third, he evokes the Convention’s historic and symbolic significance. All three aspects have been amply discussed in the past two years by politicians and academics analysing whether the Convention’s purpose and instruments differ fundamentally from those of previous reform rounds; whether the input into and output of the Convention process qualitatively improves European Treaty revision; and whether the Convention as an institution lived up to its symbolic and normative load, reflected in comparisons with “Philadelphia” or references to a “constitutional moment”.2

From Structure to Substance: Has the Constitutional Treaty improved the Chances for a Common Foreign and Security Policy? Research Papers in Law, 6/2005

From the Introduction. A common foreign and security policy for the European Union is an issue of the day. While most academic and many political observers believe that it would be in the interest of the Union to have a common policy, there is quite some disagreement as to how this is to be achieved and whether it should be accomplished in an assured and regular manner or whether it should come about on an ad hoc basis only when it is in the clear interest of all member states at any particular time. In other words, is a common foreign policy to be a fundamental characteristic of the Union or is it to be an occasional occurrence when advantageous and convenient, the ‘C’ in CFSP – as one observer has sarcastically commented – standing not for ‘Common’ but for ‘Convenient’?2

A Critique of Kosovo’s Internationalized Constitutional Court. EDAP 2014/02

The quality and the sustainability of the democratic institutions established in post-independence Kosovo under the guidance of the international community depend to a large extent on the performance of its constitutional court. The considerable international investment in that court reflects this assessment. One of the reasons why Kosovo’s international supervision has recently been terminated is that such court has been deemed to be functioning well. But its performance has not yet adequately been scrutinized. This essay reviews its most significant judgments, including decisions that deposed a president, annulled a presidential election, prevented a general election, and abolished the inviolability of parliament. The analysis of the reasons and effects of such rulings leads to the conclusion that the court gravely lacks independence and is subject to heavy political interference, which also the international judges do not seem immune from. The performance of the court is both a manifestation and a cause of Kosovo’s acute governance problems, which its international supervision has failed to remedy. The international community’s approach towards the court is also an illustration of the reasons why statebuilding in Kosovo led to unsatisfactory results, despite unprecedented investment.

"Viewers should not try this at home". Die Verfassungsgerichte Bosnien-Herzegowinas und Kosovos in deren Rolle als Schlichtungsinstanzen in ethnopolitischen Konflikten = The constitutional courts of Bosnia-Herzegovina and Kosovo in their role as arbitration bodies in ethno-political conflicts. EDAP 01/2014

The article analyzes the role of constitutional courts in Bosnia and Kosovo, both characterized by their partly internationalized membership, in the adjudication of cases that are highly controversial between the different ethno-political factions. The main focus is on the Constitutional Court of Bosnia, which presents one of the richest and most interesting examples of “lawfare” in divided societies. The concept of lawfare has been adapted to refer to the continuation of political battles by ethno-political actors through legal means, in this case, constitutional adjudication. In Kosovo, the Constitutional Court has been an important defender of diversity, albeit its primary focus and merit are to have contributed to the establishment of a concept of democracy close to the people of Kosovo. The article concludes that constitutional courts represent important institutions of internal conflict resolution in divided societies, which have been instrumental in shaping multiculturalism in these post-conflict societies divided by deep ethnic cleavages.