The New Financial Regulatory Paradigm: A transatlantic perspective. CEPS Policy Brief No. 287, 21 March 2013

This CEPS Policy Brief reviews key aspects of the new financial paradigm in a transatlantic perspective, focusing on the general approach in EU and US legislation in response to the financial crisis and the G-20 commitments and specifically as regards the extraterritorial implications. Following discussion of the institutional setting, conclusions are offered on what these changes mean in the context of the recently proposed Transatlantic Trade and Investment Partnership. In comparing the EU and the US efforts in re-engineering their regulatory regimes in response to the financial crisis, the paper finds, with the notable exception of the banking union, serious grounds for concern that the outcome may be an even more fragmented European financial market, access to which for third-country institutions is highly problematic.

The Protocol of Frankfurt: a new treaty for the eurozone. EPC Discussion Paper, 12 January 2016

At a time when the EU finds itself in a perfect storm of crises which it seems unable to overcome, a bold move is needed to reinvigorate the EU’s system of government and stave off the risk of disintegration. In order to address the inherent weakness of the EU’s monetary and economic governance, this pamphlet proposes a new treaty for the eurozone: the Protocol of Frankfurt. Written by Andrew Duff, former Member of the European Parliament and Visiting Fellow at the EPC, it is the first ever attempt to draft a treaty aimed at setting up a fiscal union. “The Protocol of Frankfurt provides the constitutional framework for a proper economic government and will, hopefully, also serve to accelerate the debate on the Five Presidents’ Report”. Realising that the time is not ripe for a major constitutional overhaul, the pamphlet instead puts forward a shorter treaty revision that concentrates on re-engineering the Maastricht arrangements for the economic and monetary union, taking on the form of a Protocol to be added on to the existing Treaties. Article 48(2) of the Treaty on European Union allows the government of any member state, the European Parliament or the Commission to table amendments to the Treaties. Our hope is that somebody, informed by this draft Protocol, does just that.

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).