The Court of Justice of the European Union as a fundamental rights tribunal: challenges for the effective delivery of fundamental rights in the area of freedom, security and justice. CEPS Paper in Liberty and Security in Europe No. 49, 29 August 2012

This paper reflects on the challenges facing the effective implementation of the new EU fundamental rights architecture that emerged from the Lisbon Treaty. Particular attention is paid to the role of the Court of Justice of the European Union (CJEU) and its ability to function as a ‘fundamental rights tribunal’. The paper first analyses the praxis of the European Court of Human Rights in Strasbourg and its long-standing experience in overseeing the practical implementation of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Against this analysis, it then examines the readiness of the CJEU to live up to its consolidated and strengthened mandate on fundamental rights as one of the prime guarantors of the effective implementation of the EU Charter of Fundamental Rights. We specifically review the role of ‘third-party interventions’ by non-governmental organisations, international and regional human rights actors as well as ‘interim relief measures’ when ensuring effective judicial protection of vulnerable individuals in cases of alleged violations of fundamental human rights. To flesh out our arguments, we rely on examples within the scope of the relatively new and complex domain of EU legislation, the Area of Freedom, Security and Justice (AFSJ), and its immigration, external border and asylum policies. In view of the fundamental rights-sensitive nature of these domains, which often encounter shifts of accountability and responsibility in their practical application, and the Lisbon Treaty’s expansion of the jurisdiction of the CJEU to interpret and review EU AFSJ legislation, this area can be seen as an excellent test case for the analyses at hand. The final section puts forth a set of policy suggestions that can assist the CJEU in the process of adjusting itself to the new fundamental rights context in a post-Lisbon Treaty setting.

Cittadinanza, lavoro e diritti sociali nella crisi europea = Citizenship, work and social rights in the European crisis. WP C.S.D.L.E. “Massimo D’Antona”.INT – 100/2013

This paper explores the limits and potentials of European citizenship as a transnational form of social integration, taking as comparison Marshall's classical analysis of the historical development of social rights in the context of the national Welfare State. It is submitted that this potential is currently frustrated by the prevailing negative-integration dimension in which the interplay between Union citizenship and national systems of Welfare State takes place. This negative dimension pervades the entire case law of the Court of Justice on Union citizenship, even becoming dominant – after the famous Viking and Laval judgements – in the ways in which the judges in Luxembourg have built, and limited, what in Marshall’s terms might be called the European collective dimension of “industrial citizenship”. The new architecture of the economic and monetary governance of the Union, based as it is on an unprecedented effort towards a creeping constitutionalisation of a neo-liberal politics of austerity and welfare retrenchment, is destined to strengthen the de-structuring pressures on the industrial-relation and social protection systems of the member States. The conclusions sum-up the main critical arguments and make some suggestions for an alternative path for re-politicising the social question in Europe.

Legal privilege for in-house lawyers in the light of AKZO: a matter of law or policy? Research Papers in Law, 05/2011

From introduction. This paper discusses the arguments in favour of extending legal privilege to in-house lawyers in the light of the CJEU‟s judgement in AKZO. The previous jurisprudence is unambiguous, as the Court clearly stated in AM & S that the confidentiality of written communications between an undertaking and its lawyer is protected under Union law only when two cumulative conditions are fulfilled: they must be connected to the exercise of the client‟s rights of defence and the lawyer must be independent, that is, “not bound to the client by a relationship of employment”.1 This protection also applies to internal notes confined to reporting the content of communications with independent lawyers containing legal advice.2

The Putin doctrine: The formation of a conceptual framework for Russian dominance in the post-Soviet area. OSW Commentary No. 131, 28.03.2014

The statements made in recent weeks by Russian officials, and especially President Vladimir Putin, in connection with Moscow’s policy towards Ukraine, may suggest that the emergence of a certain doctrine of Russian foreign and security policy is at hand, especially in relation to the post-Soviet area. Most of the arguments at the core of this doctrine are not new, but recently they have been formulated more openly and in more radical terms. Those arguments concern the role of Russia as the defender of Russian-speaking communities abroad and the guarantor of their rights, as well as specifically understood good neighbourly relations (meaning in fact limited sovereignty) as a precondition that must be met in order for Moscow to recognise the independence and territorial integrity of post-Soviet states. However, the new doctrine also includes arguments which have not been raised before, or have hitherto only been formulated on rare occasions, and which may indicate the future evolution of Russia’s policy. Specifically, this refers to Russia’s use of extralegal categories, such as national interest, truth and justice, to justify its policy, and its recognition of military force as a legitimate instrument to defend its compatriots abroad. This doctrine is effectively an outline of the conceptual foundation for Russian dominance in the post-Soviet area. It offers a justification for the efforts to restore the unity of the ‘Russian nation’ (or more broadly, the Russian-speaking community), within a bloc pursuing close integration (the Eurasian Economic Union), or even within a single state encompassing at least parts of that area. As such, it poses a challenge for the West, which Moscow sees as the main opponent of Russia’s plans to build a new order in Europe (Eurasia) that would undermine the post-Cold War order.

Is Independence Possible in an Interdependent World? Scotland vs. the UK's Participation in the European Economy. Bruges European Economic Policy (BEEP) Briefing 30/2013

Many commentators have criticised the strategy used to finance regional governments such as the Scottish Parliament – both the block grant system and the limited amount of fiscal autonomy devised in the Scotland Act of 2012. This lecture sets out to identify what level of autonomy or independence would best suit a regional economy in a currency union, and also the institutional changes needed to sustain those arrangements. Our argument is developed along three lines. First, we set out the advantages of a fiscal federalism framework and the institutions needed to support it, but which the Euro-zone currently lacks. The second is to elaborate a model of fiscal federalism where comprehensive powers of taxation and spending are devolved (an independent Scotland and the UK remain constituent members of the EU and European economy). Third, we evaluate the main arguments for the breakup of nations or economic unions with Scotland and the UK as leading examples. We note that greater autonomy may not result in increases in long run economic growth rate, but it does imply that enhancing the fiscal competence and responsibility of regional governments would result in productivity gains and hence higher levels of GDP per head. That means the population is permanently richer than before, even if ultimately their incomes continue to grow at the same rate. It turns out that these improvements can be achieved through devolved tax powers, but not through devolved spending powers or shared taxes.

Taiwanese Lobbying in the European Union: ‘Workable Diplomacy’ and its Limitations. EU Diplomacy Paper 8/2015

The policy of the European Union (EU) towards Taiwan has mostly been analysed either as a by-product of EU-China relations or with reference to the general lack of a European geopolitical approach towards East Asia. By adopting a lobbying approach which focusses on Taiwan’s different ‘channels of influence’ within the complex European foreign policy system in Brussels, this study provides new insights into the functioning of EU-Taiwan relations. It also sheds new light on the implications of the radical change in Taiwanese diplomacy after 2008, when Chen Shui-bian’s assertive and identity-based diplomacy was replaced with the Kuomintang’s new dogma of ‘workable diplomacy’. Based on semi-guided interviews with Taiwanese and European actors, this paper examines why Taiwanese lobbying in Brussels, albeit very active and professional, is not salient enough to meet the challenges arising from the overwhelming Chinese competition and from the increasing proliferation of regional trade agreements – with active EU participation – in the Asia-Pacific region. It argues that the pragmatic ‘workable diplomacy’ approach, while smoothing out working-level relations between Taiwan and the EU, fails to attract a sufficient degree of political and public attention in Europe to the Taiwan question and thus fosters the neglect of Taiwan by European foreign policy-makers. The main challenge faced by Taiwanese diplomacy, however, is not simply one of convincing through technical arguments, but one of agenda setting, that is, of redefining European priorities in Taiwan’s favour.

An Analysis of the Schengen Area in the Wake of Recent Developments. 30 June 2016. CEPS researchers’ work published externally

This study, commissioned by the European Parliament’s Policy Department for Citizen’s Rights and Constitutional Affairs at the request of the LIBE Committee, analyses the Schengen area in the wake of the European ‘refugee crisis’ and other recent developments. With several Member States reintroducing temporary internal border controls over recent months, the study assesses compliance with the Schengen governance framework in this context. Despite suggestions that the end of Schengen is nigh or arguments that there is a need to get ‘back to Schengen’, the research demonstrates that Schengen is alive and well and that border controls have, at least formally, complied with the legal framework. Nonetheless, better monitoring and democratic accountability are necessary.