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.”

Brexit – lessons from four referenda on the European Union (EU) in Denmark. EU Centre, Policy Brief No. 8, June 2015

From 1972 to 1993 Denmark staged four referenda on the EU. Two of them in particular hold valuable lessons for Britain seeking new terms - in June 1992 on the Treaty on European Union (Maastricht Treaty), the Danes voted “NO” with a slim majority; this was followed by another vote on the treaty in May 1993 on the Edinburgh Agreement with a “YES” vote. Joergen Oerstroem Moeller was directly involved in all four referenda and served 1989-1997 as State-Secretary in the Royal Danish Foreign Ministry. The result of a referendum may and often will be decided by policy decisions shaping the electorates’ perception long before the voting takes place. The majority votes according to instinct and intuition and is often guided by emotions. The Danish case highlights the importance of defining clearly specific exceptions, working hard to explain the case (at home and abroad), establishing good-will, and conveying that exceptions are in principle temporary and do not require treaty changes. The objectives laid out at the start of the process must be achievable. The member state in question should not manoeuvre itself into humiliating back-pedalling at the final negotiation round: if so it arouses suspicion among the electorate that it is being manipulated and deceived. During the campaign media attention will primarily focus on dissent and scepticism presenting the establishment with the tedious task of confuting accusations of all kinds. The YES camp will be pushed into the defensive by the NO camp setting the agenda. Time and effort and political capital needed to be invested for the positive outcome.

The Importance of Being Earnest: The green economy and sustainable development in China. Asia Policy Brief 2012/02, November 2012

China's past economic development model has not been sustainable, at least in environmental terms. In recent years, the Chinese government has dedicated considerable time, planning energy, policy and rhetoric to "green" issues. However, there is a risk that this trend will be stalled by struggles related to pending economic problems and the upcoming leadership transition. Consequently, the international community should acknowledge China’s achievements in terms of environmental policy and cooperation as one way of serving the global public interest.