The future of the Eurozone and the role of the German Constitutional Court. Research Papers in Law, 05/2012

[Introduction.] Necessary reforms towards a deepened and increased European shaped economic, financial and budgetary policy, paraphrased with the term “fiscal union”, could possibly reach constitutional limits. In its EFSF judgment1, the German Constitutional Court, following the Lisbon judgment in which certain government tasks were determined as being part of the “constitutional identity”2, connected the budget right of the parliament via the principle of democracy to the eternity clause of Art. 79 para 3 Basic Law. A transfer of essential parts of the budget right of the German Bundestag, which would be in conflict with the German constitution, is said to exist when the determination of the nature and amount of the tax affecting the citizens is largely regulated on the supranational level and thereby deprived of the Bundestag’s right to disposition. A reform of the Economic and Monetary Union that touches the core of the budget right can, according to the German Federal Court, with regard to Art. 79 (3) of the Basic Law only be realized by way of Art. 146 of the Basic Law, thus with a new constitution given by the people that replaces the Basic Law.3

EU Policy on Climate Change Mitigation since Copenhagen and the Economic Crisis. CEPS Working Document No. 380, 5 March 2013

The EU has long assumed leadership in advancing domestic and international climate change policy. While pushing its partners in international negotiations, it has led the way in implementing a host of domestic measures, including a unilateral and legally binding target, an ambitious policy on renewable energy and a strategy for low-carbon technology deployment. The centrepiece of EU policy, however, has been the EU Emissions Trading System (ETS), a cap-and-trade programme launched in 2005. The ETS has been seen as a tool to ensure least-cost abatement, drive EU decarbonisation and develop a global carbon market. After an initial review and revision of the ETS, to come into force in 2013, there was a belief that the new ETS was ‘future-proof’, meaning able to cope with the temporary lack of a global agreement on climate change and individual countries’ emission ceilings. This confidence has been shattered by the simultaneous ‘failure’ of Copenhagen to deliver a clear prospect of a global (top-down) agreement and the economic crisis. The lack of prospects for national caps at the international level has led to a situation whereby many member states hesitate to pursue ambitious climate change policies. In the midst of this, the EU is assessing its options anew. A number of promising areas for international cooperation exist, all centred on the need to ‘raise the ambition level’ of GHG emission reductions, notably in aviation and maritime, short-lived climate pollutions, deforestation, industrial competitiveness and green growth. Public policy issues in the field of technology and its transfer will require more work to identify real areas for cooperation.

Cities: The Juncker Commission should not miss this key to growth, jobs and the environment. CEPS Commentary, 3 October 2014

Cities, more particularly ‘smart’ cities, could become a catalyst for economic and social development. For this to happen, Europe will need a new type of integrated infrastructure, a new urban governance and policy structure, as well as new finance and business models. Successful smart projects will eventually develop into new business models and companies. While the European Commission cannot mandate or regulate this top down, it has a role to play in nurturing new initiatives to allow Europe the possibility of developing its own Google and Apple.

The strength of the Christian Democrats, the weakness of the opposition. Germany before the parliamentary elections. OSW Commentary No. 114, 12.09.2013

The political campaign before Germany’s parliamentary elections to be held on 22 September has in all its glory reflected the trends visible during the last four years of the government of Chancellor Angela Merkel – the strength of the Christian Democrats, the weakness of the opposition and the increasing marginalisation of the coalition partner, the FDP. The CDU/CSU remains the most popular political choice in Germany, largely because Angela Merkel has consistently remained the most popular German politician. Everything indicates that the CDU/CSU will win the election, even though it has been running a passive campaign and the Chancellor herself has been avoiding confrontation, presenting herself as a kind of cross-party representative of the interests of all social groups. The Christian Democrats’ main competitors, the Social Democrats, have been unable to play to their strengths and present themselves as a serious alternative to the CDU/CSU. The Christian Democrats, despite their difficult cooperation with the liberal FDP, have declared their willingness to continue doing so during the next parliamentary term. If the numbers make that impossible, and the Social Democrats and the Greens have too few votes to be able to form a government, a grand coalition of the Christian Democrats and the SPD will be formed in Germany.

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).

Social Citizenship and Institution Building: EU-Enlargement and the Restructuring of Welfare States in East Central Europe. CES Germany & Europe Working Paper, No. 01.2, April 2001

With the EU-enlargement process well underway, this paper focuses on social citizenship as a conceptual frame for analyzing the restructuring of social institutions in applicant countries in East Central Europe. So far, comparative welfare state analysis has concentrated mainly on the developed economies of the OECD-countries; there is little systematic analytical work on the transitions in post-communist Europe. Theoretically, this paper builds on comparative welfare state analysis as well as on new institutionalism. The initial hypothesis is built on the assumption that emerging patterns of social support and social security diverge from the typology described in the comparative welfare state literature inasmuch as the transformation of postcommunist societies is distinctly different from the building of welfare states in Europe. The paper argues that institutionbuilding is shaped by and embedded in the process of European integration and part of governance in the EU. Anticipating full membership in the European Union, the applicant countries have to adapt to the rules and regulations of the EU, including the "social acquis." Therefore, framing becomes an important feature of institutional changes. The paper seeks to identify distinct patterns and problems of the institutionalization of social citizenship.