"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.

The German Constitutional Court’s decision about the European Central Bank’s OMT [Outright Monetary Transactions] mechanism: A masterpiece of judicial arrogance. European Policy Briefs No. 30, April 2014

The German Constitutional Court (BVG) recently referred different questions to the European Court of Justice for a preliminary ruling. They concern the legality of the European Central Bank’s Outright Monetary Transaction mechanism created in 2012. Simultaneously, the German Court has threatened to disrupt the implementation of OTM in Germany if its very restrictive analysis is not validated by the European Court of Justice. This raises fundamental questions about the future efficiency of the ECB’s monetary policy, the damage to the independence of the ECB, the balance of power between judges and political organs in charge of economic policy, in Germany and in Europe, and finally the relationship between the BVG and other national or European courts.

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.

State Transformation and the European Integration Project. Lessons from the financial crisis and the Greek paradigm. CEPS Special Report No. 130/February 2016

The financial crisis that erupted in the eurozone not only affected the EU’s financial governance mechanisms, but also the very nature of state sovereignty and balances in the relations of member states; thus, the actual inequalities between the member states hidden behind their institutional equality have deteriorated. This transformation is recorded in the case law of the Court of Justice of the European Union and the member states’ constitutional courts, particularly in those at the heart of the crisis, with Greece as the most prominent example. It is the issue of public debt (sovereign debt) of the EU member states that particularly reflects the influence of the crisis on state sovereignty as well as the intensely transnational (intergovernmental) character of European integration, which under these circumstances takes the form of a continuous, tough negotiation. The historical connection between public debt (sovereign debt) and state sovereignty has re-emerged because of the financial crisis. This development has affected not only the European institutions, but also, at the member state level, the actual institutional content of the rule of law (especially judicial review) and the welfare state in its essence, as the great social and political acquis of 20th century Europe. From this perspective, the way that the Greek courts have dealt with the gradual waves of fiscal austerity measures and structural reforms from 2010 to 2015 is characteristic. The effect of the financial crisis on the sovereignty of the member states and on the pace of European integration also has an impact on European foreign and security policy, and the correlations between the political forces at both the national and European level, thus producing even more intense pressures on European social democracy. In light of the experience of the financial crisis, the final question is whether the nation state (given the large real inequalities among the EU member states) currently functions as a brake or as an engine for future European integration.

The French Constitutional Council as the Rottweiler of the Republican Ideal in the Language Field: Does Jurisprudence Really Reflect Reality? EDAP 03/2012, 2012

France is known for being a champion of individual rights as well as for its overt hostility to any form of group rights. Linguistic pluralism in the public sphere is rejected for fear of babelization and Balkanization of the country. Over recent decades the Conseil Constitutionnel (CC) has, together with the Conseil d’État, remained arguably the strongest defender of this Jacobin ideal in France. In this article, I will discuss the role of France’s restrictive language policy through the prism of the CC’s jurisprudence. Overall, I will argue that the CC made reference to the (Jacobin) state-nation concept, a concept that is discussed in the first part of the paper, in order to fight the revival of regional languages in France over recent decades. The clause making French the official language in 1992 was functional to this policy. The intriguing aspect is that in France the CC managed to standardise France’s policy vis-à-vis regional and minority languages through its jurisprudence; an issue discussed in the second part of the paper. But in those regions with a stronger tradition of identity, particularly in the French overseas territories, the third part of the paper argues, normative reality has increasingly become under pressure. Therefore, a discrepancy between the ‘law in courts’ and the compliance with these decisions (‘law in action’) has been emerging over recent years. Amid some signs of opening of France to minorities, this contradiction delineates a trend that might well continue in future.

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.”

The European Court of Justice and process-oriented review. Research Paper in Law, 01/2012

Structuralism is a theory of U.S. constitutional adjudication according to which courts should seek to improve the decision-making process of the political branches of government so as to render it more democratic.1 In words of John Hart Ely, courts should exercise their judicial-review powers as a ‘representation-reinforcing’ mechanism.2 Structuralism advocates that courts must eliminate the elements of the political decision-making process that are at odds with the structure set out by the authors of the U.S. Constitution. The advantage of this approach, U.S. scholars posit, lies in the fact that it does not require courts to second-guess the policy decisions adopted by the political branches of government. Instead, they limit themselves to enforcing the constitutional structure within which those decisions must be adopted. Of course, this theory of constitutional adjudication, like all theories, has its shortcomings. For example, detractors of structuralism argue that it is difficult, if not impossible, to draw the dividing line between ‘substantive’ and ‘structural’ matters.3 In particular, they claim that, when identifying the ‘structure’ set out by the authors of the U.S. Constitution, courts necessarily base their determinations not on purely structural principles, but on a set of substantive values, evaluating concepts such as democracy, liberty and equality. 4 Without claiming that structuralism should be embraced by the ECJ as the leading theory of judicial review, the purpose of my contribution is to explore how recent case-law reveals that the ECJ has also striven to develop guiding principles which aim to improve the way in which the political institutions of the EU adopt their decisions. In those cases, the ECJ decided not to second-guess the appropriateness of the policy choices made by the EU legislator. Instead, it preferred to examine whether, in reaching an outcome, the EU political institutions had followed the procedural steps mandated by the authors of the Treaties. Stated simply, I argue that judicial deference in relation to ‘substantive outcomes’ has been counterbalanced by a strict ‘process review’. To that effect, I would like to discuss three recent rulings of the ECJ, delivered after the entry into force of the Treaty of Lisbon, where an EU policy measure was challenged indirectly, i.e. via the preliminary reference procedure, namely Vodafone, Volker und Markus Schecke and Test-Achats.5 Whilst in the former case the ECJ ruled that the questions raised by the referring court disclosed no factor of such a kind as to affect the validity of the challenged act, in the latter cases the challenged provisions of an EU act were declared invalid.

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

Conventions in comparative constitutional law. Research Paper in Law 4/2003

Introduction. “Convention” is an ambiguous term, not only for lawyers, containing a wide variety of different meanings. Even when restricted to denote an assembly it may be used for all sorts of gatherings. In the context of constitutional law a convention is a very specific instrument, and the question is to what extent it is actually known in European constitutional law and whether the “Convention on the Future of Europe” as called forth by the Declaration of Laeken conforms to what is understood in constitutional law by “convention”.1 Or did the Laeken Council pick up a term without any foundation in European constitutional law, rarely practiced and even less understood, the only precedents of which are supposed to be the American Federal Convention in Philadelphia in 1787 and the convention that drafted the European Charter on Fundamental Rights, as can be read time and again? 2 As it is the privilege of the constitutional historian to make aware the evolution of legal institutions and to analyze their conferred meaning so that they will be available in political discourse, I shall examine the meaning of “convention” in constitutional history and comparative constitutional law in a first part, while a second part will place the Convention on the Future of the European Union according to its composition and commission into the context of constitutional conventions as understood in law.

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.

L’Europa sociale e il diritto: il contributo del metodo comparato [Social Europe and the law: the contribution of the comparative method]. WP C.S.D.L.E. "Massimo D'Antona" .INT - 94/2012

The essay explores the evolution of comparative law and the contribution of its more recent methodological results on the process of European social integration through law. The analysis of the comparative method in general glides on a discipline, such a as labour law, traditionally linked to the "nomos" of the nation state and looks at the process of its own supranationalization through the lens which is the comparative method; a method used mainly by the juridical format (national and supranational courts). The analysis focuses on the fixed term contract and on the vexing question of collective social fundamental rights vis a vis fundamental economic freedoms in the EU where national constitutional traditions and supranational principals risk collision due also to the comparative method.

Diritti sociali e crisi del costituzionalismo europeo [Social rights and the crisis of European constitutionalism]. WP C.S.D.L.E. “Massimo D’Antona”.INT – 95/2012

In the face of what looks like a real impasse of the the line of European constitutionalism, partly due to an orientation of the Court of Justice which tends to favor the protection of economic freedoms over the protection of social rights, two opposing trends occurr. The first amounts to a new "constitutional patriotism"; the second entrusts the protection of fundamental social rights no longer to a single Chart or to a single court but to a multi-level system of protection. A dialogue between the European courts that truly valorizes fundamental rights, however, might be hindered by what someone has seen as a resurgence of the dualist theories, evident in an ECJ’s decision as Kadi.

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 Future Organisation of the European Courts. Research Papers in Law, 2/2005

From the Introduction. According to Article 220 of the EC Treaty, the Court of Justice and the Court of First Instance (hereinafter CFI) “each within its jurisdiction, shall ensure that in the interpretation and application of [the EC] Treaty the law is observed”. The “pre-Nice” allocation of jurisdiction between the two Community courts can be summarized as follows. At Court of Justice level, mention should first of all be made of references for a preliminary ruling. A national court, in a case pending before it, can - or in some circumstances must - refer to the Court of Justice a question relating to the interpretation of provisions of the EC Treaty or of secondary Community law, or relating to the validity of provisions of secondary Community law.1 Moreover, the Court of Justice ensures the observance of the law in the context of actions for annulment or failure to act brought before it by the Community institutions, the European Central Bank (hereinafter ECB) and the Member States.2 These actions concern, respectively, the legality of an act of secondary Community law and the legality of the failure of the institution concerned to adopt such act. The Court of Justice also has jurisdiction in actions brought by the Commission or by a Member State relating to the infringement of Community law by a Member State (hereinafter infringement actions)3 and in actions relating to compensation for non-contractual damage brought by Member States against the Community.4 Finally, as regards the jurisdiction of the Court of Justice, mention should be made of appeals which can be lodged on points of law only against rulings of the CFI.5