Evento: IL DIRITTO COSTITUZIONALE ITALIANO NELLO SPAZIO GIURIDICO EUROPEO. ROMA , 24 marzo 2014

(dal sito dell'Associazione italiana dei costituzionalisti)

Roma, 24 marzo, ore 11

Luiss Guido Carli, Centro di Studi sul Parlamento, Aula Nocco, via Parenzo, 11

“Il diritto costituzionale italiano nello spazio giuridico europeo”

programma

Call for Papers: What Form of Government for the European Union and the Eurozone?

Call for Papers: What Form of Government for the European Union and the Eurozone?

Venue: Tilburg Law School, Tilburg, the Netherlands
Dates: 5/6 June 2014
Organizers: Federico Fabbrini, Han Somsen on behalf of Tilburg Law School

The debate about the institutional reforms of the European Union (EU) generally, and of the Euro-zone specifically, has recently acquired a new impetus. The Euro-crisis and the constitutional responses to it have profoundly modified de facto and de jure the institutional architecture of the EU designed by the Lisbon Treaty, and a number of influential road-maps have been advanced at the highest level of policy-making to trace the way forward for the EU. The purpose of this Conference is to examine from a comparative constitutional perspective the form of government of the EU and to discuss the prospects of integration and institutional reform in the Eurozone and the EU at large.

The Conference will feature the participation of a number of distinguished scholars, including Paul Craig (Professor of Law, St. John’s College, Oxford), Christian Calliess (Professor of Law, Freie Universität, Berlin) Deirdre Curtin (Professor of Law, Amsterdam), Ernst Hirsch Ballin (Professor of Law, Tilburg and former Minister of Justice of the Netherlands), Daniel Kelemen (Professor of Political Science, Rutgers University), Jean-Claude Piris (Professor of Law, and former Director, Legal Service of the Council of the EU), and Sylvie Goulard (Member of the European Parliament, Committee of Economic and Monetary Affairs) all of which have confirmed their presence.

The Organizers invite the submission of paper proposals, in particular on topics like:

How has the Euro-crisis changed the form of governance of the EU and the Eurozone? How has the role of the EU institutions, notably the European Council, evolved? And what have been the implications of integration in the Eurozone for the EU as such?
How do the EU and Eurozone forms of governance feature in (comparative and historical) constitutional perspective? To what extent do these forms of governance resemble features of presidential, parliamentary, semi-presidential or directorial regimes?
What are the perspective for institutional design in the EU and the Eurozone? What are the advantages of alternative constitutional solutions, such as the parliamentarization of the Commission or the democratization of the European Council? How can checks and balances operate in the context of the new EU and Eurozone architecture?
Applicants are invited to submit an abstract (max. 250 words) and their CV to federico.fabbrini@gmail.com by 9 March 2014. Selected speakers will be required to circulate a draft of their paper by 18 May 2014 and commit to submit in the immediate aftermath of the Conference their revised essays for an edited volume to be published by a top international press. Selected speakers will receive free meals during the days of the Conference and a subsidy of 150 € to defray the costs of their travel to, and accommodation in, Tilburg, the Netherlands.

More information:

http://www.iacl-aidc.org/images/blog/blog_40_Call%20for%20Paper_TLS%20conference%202014.pdf

Counter-Terrorism Law and Judicial Review: The Challenge for the Court of Justice of the European Union

Cian C. Murphy 

King's College London – The Dickson Poon School of Law
August 1, 2013

Forthcoming in de Londras & Davis (eds) Critical Debates on Counter-terrorist Judicial Review (2014 CUP) 
Abstract:      

Any discussion of European Union counter-terrorism law poses challenges. There is a challenge for the conservative observer that sees the former economic community with power akin to that of a sovereign state. For the liberal observer, the substance of much EU counter-terrorism law is so far-removed from European ideals of respect for human rights and the rule of law as to be rather alarming. In the present context, a book exploring judicial review of counter-terrorism action, there are also challenges. In the first half of this paper the idea that the ECJ is an appropriate institution for review of counter-terrorism law is subject to challenge. The ECJ has been the subject of much praise for its judicial review of counter-terrorism law – but that praise often overlooks the Court’s limitations. In earlier work it was possible to speak of ‘the difficult position of the European judiciary’. In that work the analysis set out the problem the Court faces in striking an appropriate balance between rules of EU constitutional law on division of powers and the protection of human rights. In this chapter the analysis takes a further look at the Court’s work in light of its history and practices. A key question is whether the Court of Justice conducts review in a manner appropriate to counter- terrorism law. The substantive challenge for the Court of Justice in more recent cases has been to reconcile overlapping rules of counter-terrorism law with legal principles such as the rule of law. Thus, the second half of the paper turns to the Court’s emerging counter-terrorism jurisprudence. That jurisprudence, in particular the line of cases dealing with restrictive measures, now ranks amongst the most discussed judgments in its history. After its judgment in Kadi I the Court is seen as a bastion of the rule of law in the face of executive power that has a global reach. That judgment was undoubtedly a positive one for the rule of law but it left many questions without answers. These questions – on intensity of review, secret evidence, and due process – have since been the subject of litigation in Kadi II and other cases. The central aim of this paper is to challenge the complacency in much European legal debate that courts – and the Court of Justice in particular – can be relied upon to control executive power. The paper argues that although they are a necessary part of a system of constraint they are by no means sufficient by themselves.

Number of Pages in PDF File: 14

Keywords: counter-terrorism, judicial review, European Union, Kadi, due process

FUll text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2362780

The Moment of Schmittian Truth: Conceiving of the State of Exception in the Wake of the Financial Crisis

Ming-Sung Kuo 

University of Warwick School of Law
2014

Christian Joerges and Carola Glinski (eds), The European Crisis and the Transformation of Transnational Governance: Authoritarian Managerialism versus Democratic Governance (Oxford: Hart Publishing, 2014 Forthcoming). 
Warwick School of Law Research Paper No. 2014/01 
Abstract:      

This paper aims to provide critical perspectives on the constitutional debate surrounding global governance by examining the de facto state of exception as the euro crisis has prompted. I first discuss the character of the US emergency power regime and show that the euro crisis management evokes the design of emergency power in the US: executive emergency powers are ‘normalised’ through ordinary legislation but only switched on with the securitisation of the administrative machinery when a crisis is looming. While (global) administrative law, based on the US experience in dealing with the rise of the administrative state, has been advocated as a pragmatic and normative approach to framing global governance in legal terms, the resemblance the euro crisis management bears to American emergency regime reveals the second but more disturbing aspect of modelling global governance on American administrative law. Then, I reflect upon the appeal and limits of constitutionalisation as a practical response to the new crisis management in global governance. In contrast to the issues concerning American emergency regime, the question of transnational states of emergency is entangled with the constitutional debate over global governance and its political condition. I argue that the dilemma facing the constitutionalisation of global crisis governance exposes the Achilles heel of global governance: the absence of a common political will beyond the state. Thus situated, not only is a successful invocation of emergency power unlikely on the transnational level but global governance will continue to be conceived in non-constitutional terms. Here shines the cunning of the crown jurist of the Third Reich.

Number of Pages in PDF File: 25

Keywords: financial and euro crisis, (global) economic state of emergency, Carl Schmitt, state of exception, emergency powers, normalization of state of emergency, US emergency power regime, global governance, troika, global administrative law

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2400386

Using the EU Charter of Fundamental Rights Against Private Parties after Association De Médiation Sociale

Cian C. Murphy 

King's College London – The Dickson Poon School of Law
February 24, 2014

European Human Rights Law Review, 2014 Forthcoming 
Abstract:      

The judgment in Association de Médiation Sociale gave the Court of Justice the opportunity to revisit its decision in Kücükdeveci on the effect of the EU Charter. In its short judgment the Court declines to follow the complex reasoning of Advocate General Cruz Villalón in his Opinion in the case and leaves the law on the effect of the EU Charter in disputes between private parties rather unclear. The analysis herein explores the Court of Justice judgment in its wider legal context, taking in the Court’s affirmation of the rule against horizontal direct effect, the distinction of Kücükdeveci, and the question of rights and principles in the Charter. It concludes with some thoughts on how litigants in disputes between private parties might best frame their claims on the basis of the Charter and on current challenges for the European Union and the Court of Justice in this evolving field of law.

Number of Pages in PDF File: 12

Keywords: human rights, EU law, horizontal direct effect, Court of Justice of the European Union

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2400491

Jurisprudence of the European Court of Human Rights Regarding Indigenous Peoples: Retrospect and Prospects

Timo Koivurova 

University of Lapland - Arctic Centre - Northern Institute for Environmental and Minority Law 
February 17, 2014

M. Fitzmaurice and P. Merkouris (eds.), The Interpretation and Application of the European Convention of Human Rights: Legal and Practical Implications (Martinus Nijhoff Publishers, 2013) 217-257. 
Abstract:      

The development of international law relating to indigenous peoples has been rapid, in particular if one considers advances at the universal level since the 1980s. The article provides with a short introduction of the Convention on Indigenous and Tribal Peoples in Independent Countries and determining whether complaints manifesting problems that the northern indigenous peoples confront when dominant societies and modern economic activities penetrate deeper into their traditional territories and hamper their traditional livelihoods.

Number of Pages in PDF File: 22

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2397016&download=yes

The Court of Justice's Participation in the Judicial Discourse: Theory and Practice

Christina Eckes 

Amsterdam Centre for European Law and Governance
February 17, 2014

Marise Cremona & Anne Thies (eds.), The European Court of Justice and External Relations - Constitutional Challenges (Hart Publishing, Oxford, 2014) 
Abstract:      

Judges argue within a legal frame of reference. They identify and interpret this frame and read factual situations before them in the light of it. By interpreting the law and the facts coherently with the relevant legal frame of reference they aim to objectively justify their decisions. This may sound naïve and often be much less heroic in practice. However, the core value of separation of powers and of independent judicial review is widely accepted, including the added value of the judiciary’s attempts to objectify what is ‘just’ outside of the political power struggle. Judicial discourse, it is here argued, could help the judiciary to continue to offer this objectifying value in a pluricontextual setting, where the internal and the external become increasingly interlocked because policy making is increasingly externalized, rights relevant decisions are taken by the executive outside the domestic constitutional framework, and an increasing number of players claim authority, including ultimate authority, to govern a legal situation.

The chapter hopes to contribute to the thinking about the role of the judiciary in a pluricontextual setting and turns to the European Union (EU) for inspiration. Within the EU the relationship between EU law on the one hand and the Member States collectively and individually on the other is characterized by an on-going pulling and pushing of law and politics. Both the Court of Justice of the European Union (CJEU) and Member States’ courts have long functioned in this setting. The Union legal order is a compound constitutionalized construction with interlocking claims of ultimate authority. This chapter considers what could be learned from interaction between different judiciaries within the EU legal order for the CJEU’s approach to external claims of authority.

Section One lays out the theoretical grounding of the value and necessity of judicial reasoning. It then makes the argument that both within the EU and beyond the boundaries of the EU legal order, the same philosophical arguments and theories require not only an inward looking judicial reasoning but also a discourse with other judicial bodies. Section Two looks consequently into the practice of judicial interaction between the CJEU and the courts of the Member States (internal discourse) and then to the interaction between the CJEU and international judicial bodies (external discourse). This sets the scene for Section Three, which addresses the core questions of this chapter: What lessons can the CJEU learn from the internal European judicial discourse that can be transferred to the external discourse with international courts and tribunals? What considerations should guide the CJEU’s external relations case law in the described pluricontextual setting?

Number of Pages in PDF File: 28

Keywords: Judicial discourse; European Union; Court of Justice

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2397067