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.

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

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 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.

"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.

Did the German court do Europe a favor? Bruegel Working Paper 2014/09, July 2014

The European Central Bank’s Outright Monetary Transactions (OMT) programme was a politically-pragmatic tool to diffuse the euro-area crisis. But it did not deal with the fundamental incompleteness of the European monetary union. As such, it blurred the boundary between monetary and fiscal policy. The fuzziness of this boundary helped in the short-term but pushed political and economic risks to the future. Unless a credible commitment to enforcing losses on private creditors is instituted, these conundrums will persist. The German Federal Constitutional Court has helped by insisting that such a dialogue be conducted in order to achieve a more durable political and economic solution. A study of the European Union Court of Justice’s Pringle decision (Thomas Pringle v Government of Ireland, Ireland and The Attorney General, Case C-370/12, ECJ, 27 November 2012) suggests that the ECJ will also not rubber-stamp the OMT – and, if it does, the legal victory will not resolve the fundamental dilemmas.

The 2011 Constitutional reform in Morocco: more flaws than merits. Jean Monnet Occasional Paper No. 07/2014

Introduction. In the speech given to both Houses of Parliament on 11 October 2013 during the first parliamentary session, King Mohammed VI said that the “Moroccan democratic model” was “a precursor in the region as well as on the continental level.”1 Similarly, with the purpose of stressing the “democratic exceptionalism”2 of the country, the new government, led by Abdeilah Benkirane, emphasised that Morocco represents a “third way” compared to countries such as Tunisia, Libya or Egypt since it “…has not embarked on a limited process of reform from the top, driven and controlled by the King. Nor has it experienced a revolution brought a angry citizens rising up against the regime. Rather, it has chosen an alternate path based on a genuine partnership between the King and the PJD (Parti de la justice et du développement) that promises to bring about more far-reaching reform than palace alone would grant, without the disruption caused by uncontrolled popular upheaval.”4 It should not be at all surprising that the regime and the new Government consider Morocco a “democratic model” or a “third way.” After all, they are refe country. What is harder to understand is that when discussing the Arab uprisings, even prominent Western political leaders, representatives of the European Union institutions and the mainstream media (when they do not forget about Morocc to praise the process of democratic reform carried out by Mohammed VI. For example, on 12 September 2012, Hillary Clinton, former US Secretary of State, said, “in many ways, the United States looks to Morocco to be a leader and a model […] On political reform, we have all seen remarkable changes taking place across North Africa and the Middle East. I commend Morocco and your government for your efforts to stay ahead of these changes by holding free and fair elections, empowering the elected parliament, taking other steps to ensure that the government reflects the will of the people.”5 Similarly, former French President Nicolas Sarkozy sang the praises of the process that led to the adoption of the new 2011 Constitution: “King Mohammed VI has shown the path towards a profound, peaceful and modern transformation of Moroccan institutions and society […] France fully supports this exemplary process.” Interestingly enough, even at the European Union level the constitutional reform that took more far-reaching reform than palace alone would grant, without the disruption caused by uncontrolled popular upheaval.”4 It should not be at all surprising that the regime and the new Government consider Morocco a “democratic model” or a “third way.” After all, they are refe country. What is harder to understand is that when discussing the Arab uprisings, even prominent Western political leaders, representatives of the European Union institutions and the mainstream media (when they do not forget about Morocc to praise the process of democratic reform carried out by Mohammed VI. For example, on 12 September 2012, Hillary Clinton, former US Secretary of State, said, “in many ways, the United States looks to Morocco to be a leader and a model […] On political reform, we have all seen remarkable changes taking place across North Africa and the Middle East. I commend Morocco and your government for your efforts to stay ahead of these changes by holding free and fair elections, empowering the elected parliament, taking other steps to ensure that the government reflects the will of the people.”5 Similarly, former French President Nicolas Sarkozy sang the praises of the process that led to the adoption of the new 2011 Constitution: “King Mohammed VI has shown the path towards a profound, peaceful and modern transformation of Moroccan institutions and society […] France fully supports this exemplary process.” Interestingly enough, even at the European Union level the constitutional reform that took place in Morocco was considered an extremely positive step taken by the country, as well as a means to strengthen the cooperation between the EU and Morocco. Indeed, according to the High Representative Catherine Ashton, this reform “constitute[s] a significant response to the legitimate aspirations of the Moroccan people and [is] consistent with Morocco’s Advanced Status with the EU.”7 When it comes to the media, it is worth noting that following the ratification of the 2011 Constitution, The New York Times headlined: “All Hail the (Democratic) King.” Even sections of the academic literature have commended the constitutional reform carried out by the Moroccan Sovereign.9 In this paper I argue against the aforementioned idea, according to which Morocco should be considered a model in the region, and in particular I show that the constitution-making process, the 2011 Constitution and its subsequent implementation have more flaws than merits. Accordingly, this paper proceeds in five steps. First of all, I examine the reaction of the regime to the upheavals that broke out in the country after 20 February 2011. Secondly, I analyse the process of constitution showing its main strengths and weaknesses, and comparing it with other constituent processes that took place in the region following the Arab uprisings. In the third section, I highlight the most significant elements of continuity and discontinuity with the previous 1996 Constitution. The fourth section deals with the process of implementation: specifically process is proceeding quite slowly and that in some cases ordinary legislation is in contrast with the new Constitution and international human rights treaties. Moreover, I discuss the role that the judiciary and the Constitutional Court can play in the implementation and interpretation of the Constitution. Finally, I draw some concluding remarks.

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 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.

The Dynamics of Decentralization in Italy: Towards a Federal Solution? European Diversity and Autonomy Papers, EDAP/04 2013

This paper analyses the recent process of state decentralisation in Italy from the perspectives of political science and constitutional law. It considers the conflicting pressures and partisan opportunism of the decentralising process, and how these have adversely affected the consistency and completeness of the new constitutional framework. The paper evaluates the major institutional reforms affecting state decentralisation, including the 2001 constitutional reform and the more recent legislation on fiscal federalism. It argues that while the legal framework for decentralisation remains unclear and contradictory in parts, the Constitutional Court has performed a key role in interpreting the provisions and giving life to the decentralised system, in which regional governments now perform a much more prominent role. This new system of more decentralised multi-level government must nevertheless contend with a political culture and party system that remains highly centralised, while the administrative apparatus has undergone no comparable shift to take account of state decentralisation, leading to the duplication of bureaucracy at all territorial levels and continuing conflicts over policy jurisdiction. Unlike in federal systems these conflicts cannot be resolved in Italy through mechanisms of “shared rule”, since formal inter-governmental coordination structure are weak and entirely consultative.

Dealing with the Fallout: West Germany's Response to the Solange Decision (1974). ACES Working Papers, 2011

The European Union's powerful legal system has proven to be the vanguard moment in the process of European integration. As early as the 1960s, the European Court of Justice established an effective and powerful supranational legal order, beyond the original wording of the Treaties of Rome through the doctrines of direct effect and supremacy. Whereas scholars have analyzed the evolution of EU case law and its implications, only very recent historical scholarship has examined how the Member States received this process in the context of a number of difficult political and economic crises for the integration process. This paper investigates how the national level dealt with these fundamental transformations in the European legal system. Specifically, it examines one of the Union's most important member states, the Federal Republic of Germany. Faced with a huge number of cases dealing with European law, German judges dealt with the supremacy of European law very cautiously, negotiating between increasingly polarized academic, public and ministerial debates on the question throughout the 1960s. By the mid 1970s, the German Constitutional Court famously limited the power of the ECJ in its Solange decision (1974). This was an expression of a broader discourse in Germany from 1968 onwards about the qualitative nature of democracy and participation in public life and was in some aspects a marker, at which the German elites felt comfortable expressing the value of their national constitutional system on the European stage. This paper examines the political, media and academic build up and response to the Constitutional Court's decision in the 1970s, arguing that the national "reception" is central to understanding the dynamics and evolution of European Union legal history.

Judicial Selection, Lay Participation, and Judicial Culture in the Czech Republic: A Study in a Central European (Non)Transformation. College of Europe Research Paper in Law 03/2014

Introduction. The idea that “merit” should be the guiding principle of judicial selections is a universal principle, unlikely to be contested in whatever legal system. What differs considerably across legal cultures, however, is the way in which “merit” is defined. For deeper cultural and historical reasons, the current definition of “merit” in the process of judicial selections in the Czech Republic, at least in the way it is implemented in the institutional settings, is an odd mongrel. The old technocratic Austrian judicial heritage has in some aspects merged with, in others was altered or destroyed, by the Communist past. After 1989, some aspects of the judicial organisation were amended, with the most problematic elements removed. Furthermore, several old as well as new provisions relating to the judiciary were struck down by the Constitutional Court. However, apart from these rather haphazard interventions, there has been neither a sustained discussion as to how a new judicial architecture and system of judicial appointments ought to look like nor much of broader, conceptual reform in this regard. Thus, some twenty five years after the Velvet Revolution of 1989, the guiding principles for judicial selection and appointments are still a debate to be had.

Flashlight Europe N°5–June 2015. OMT is Monetary Policy and Not Economic Policy

In January 2014, for the first time in its history, the German Federal Constitutional Court submitted several questions to the European Court of Justice (ECJ) in Luxembourg and asked for a preliminary ruling. The questions had arisen within the framework of the OMT case, and the issue was whether or not the OMT (“outright monetary transactions”) programme announced by Mario Draghi, the head of the European Central Bank (ECB), is in compliance with the law of the European Union. The OMT programme (which has be-come well-known because Draghi said “what-ever it takes to preserve the euro” when he unveiled it) plays an important role in the stabilization of the euro area. It means that the European System of Central Banks will be empowered to engage in unlimited buying of government bonds issued by certain Member States if and as long as these Member States are simultaneously taking part in a European rescue or reform programme (under the EFSF ot the ESM). Hitherto the OMT has not been implemented. Nonetheless a suit contesting its legality was filed with the Federal Constitutional Court. The European Court of Justice now had to decide whether or not the activities of the ECB were in compliance with European law. How-ever, the ECJ had to take into account the prior assessment of the Federal Constitutional Court. In its submission the Federal Constitutional Court made it quite clear that it was of the opinion that there has been a violation of European law. But at the same time it did not exclude the possibility that the ECJ set up legal conditions for OMT in order to avoid a violation of European law.