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

Kelsenian Reflections on the Unity of Domestic and International Law: The Practice of Consistent Interpretation of the Court of Justice of the EU

Paul Gragl 

Queen Mary University of London 
March 10, 2014

Forthcoming in Luis I Gordillo (ed.), Constitutionalism of European Supranational Courts (Thomson-Reuters, 2014) 
Abstract:      

This contribution examines the relationship between EU and international law on the basis of the principle of consistent interpretation which denotes the process of subtly internalising international norms without their express incorporation, transformation, or transposition. Its innovative approach lies in the application of Kelsen’s theory to the relationship of EU lawand international law in order to determine whether Luxembourg’s incoherent jurisprudence on consistent interpretation indeed constitutes an insurmountable normative conflict or whether the Union nevertheless remains a monist legal system. Part 2 will present a brief description of the doctrine of consistent interpretation, especially its defining features and its limits, and a brief analysis on whether there is an international obligation to consistent interpretation. Part 3 will extensively depict the Court’s diverse case law on consistent interpretation, in particular with respect to secondary and primary EU law, and conclude that there are considerable incoherencies in the CJEU’s conclusions from the viewpoint of international law. Eventually, Part 4 will first illustrate Kelsen’s theory on the relationship between national and international law, and then apply its findings and conclusions to the EU’s relationship with public international law in order to fill this theoretical gap.

Number of Pages in PDF File: 51

Keywords: relationship between EU law and international law, customary international law, law of treaties, Hans Kelsen, monism and dualism

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2407131

Rethinking Europe's Freedom, Security and Justice

Cian C. Murphy 

King's College London – The Dickson Poon School of Law

Diego Acosta Arcarazo 

University of Bristol 
March 18, 2014

D. Acosta Arcarazo & C.C. Murphy (eds), EU Security and Justice Law: After Lisbon and Stockholm (Hart Publishing 2014) 
Abstract:      

This paper is the opening chapter from EU Security and Justice Law: After Lisbon and Stockholm. The coming into force of the Lisbon Treaty has provided the EU with new powers in the fields of criminal law and security law while reinforcing existing powers in immigration and asylum law. The Stockholm Programme is the latest framework for EU action in the field of justice and home affairs. It includes a range of new legislation in the fields of immigration and asylum, substantive criminal law, criminal procedure and co-operation between national criminal justice systems. The combination of the new treaty and programme have made security and justice key areas of legislative growth in the EU. This volume brings together a range of leading scholars, as well as some of the most interesting new voices in the debate, to examine the state of EU security and justice law after the Lisbon Treaty and the Stockholm Programme. It provides a critical examination of EU law in the fields of immigration, asylum, counter-terrorism, citizenship, fundamental rights and external relations. The book also examines the evolving roles of the EU institutions and criminal justice agencies. It provides a critical account of EU law in this field under the developing constitutional and institutional settlement.

Number of Pages in PDF File: 16

Keywords: EU law, Area of Freedom, Security and Justice, AFSJ, Justice and Home Affairs, human rights

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2410781

Shifting EU Institutional Reform into High Gear: Report of the CEPS High-Level Group

Sonia Piedrafita

Centre for European Policy Studies (CEPS)

Steven Blockmans

Centre for European Policy Studies (CEPS) 
March 19, 2014

CEPS Task Force Report, 2014, ISBN 978-94-6138-383-9 
Abstract:      

To contribute to the important debate on EU institutional reform in the run-up to the European Parliament elections and the start of a new Commission, CEPS formed a High-Level Group on EU Institutional Reform under the leadership of Danuta Hübner MEP and member of the CEPS Board of Directors. The report of this distinguished group of MEPs, former and current EU institutional members and leading scholars on EU law and institutional affairs focuses on reforms that could be taken within the framework of the current treaties to build a more responsive and accountable Union. The report analyses the main inter- and intra-institutional weaknesses in terms of efficiency, democracy and differentiation and puts forward a number of recommendations addressing issues such as the reorganisation of the College of Commissioners, the promotion of strategic legislative planning, the enhancement of the role of the EP and the rotating Presidency of the Council, the improvement of the democratic accountability of the European Council and the adequate engagement of the national parliaments.

Number of Pages in PDF File: 41

Keywords: EU institutional reform, EU, European Parliament elections, European Parliament, EP

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2416755

La Buena Gobernanza Económica Y El Papel De La Autoridad Fiscal Independiente En La Unión Europea (The Good Economic Governance in the Eurozone and the Role of Fiscal Councils in the EU)

Patricia Lampreave 

Universidad Complutense de Madrid, Law School - C.U.N.E.F. 
January 15, 2014

(ed) Quincena Fiscal Aranzadi 1-2, Enero I-II - 2014, Págs. 61-85 
Abstract:      

Spanish Abstract: Un déficit excesivo ha provocado graves desequilibrios fiscales en algunos Estados miembros de la UE. Por ello, a finales de 2011, se aprobó una reforma normativa sustancial en la UE con el objetivo de modificar la supervisión de la política fiscal e incorporar la buena gobernanza económica en los Estados miembros. La nueva arquitectura emergente señala que una Autoridad de Responsabilidad Fiscal Independiente incorporada en los Estados miembros y que actúe como organismo de control fiscal, reforzará el principio rector del mantenimiento de unas finanzas públicas saneadas, establecido en el TFUE.

English Abstract: An excessive deficit in some Member states has brought about a steep decline in public finances in recent years. In late 2011 a substantial reform came into force which intended to amend the supervision of fiscal policy and incorporate economic good governance in the EU. Within the scope of this new regulatory framework, an independent fiscal institution acting as a fiscal watchdog will be able to reinforce the guiding principle of “sound public finances” established by the TFEU.

Note: Downloadable document is in Spanish.

Number of Pages in PDF File: 25

Keywords: EU Law, European Governance, Eurozone, Independent Fiscal Authority, Fiscal Council, Excessive Deficit, Supervision of Fiscal Policy, Stability and Growth Pact, Fiscal Compact

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2419957

Between a Rock and a Hard Place: The Future of EU Treaty Revisions

Carlos Closa 

Consejo Superior de Investigaciones Científicas CSIC 
March 2014

SIEPS European Policy Analysis, March Issue 2014:2epa 
Abstract:      

The European economic crisis revived the discussion on future treaty revision. However, stringency of the revision procedure based on unanimity requirement presented an obstacle to fast resolution of complicated problems posed by the crisis. Faced with that difficulty, a majority of the Member States showed willingness to depart form the ordinary procedure and adopt necessary reform measures in form of intergovernmental agreements. In this policy analysis, Carlos Closa examines feasibility of future treaty revisions. With less than perfect options available – and far-fetched solutions proposed to resolve the dilemma – current demands for revision may remain unanswered for the time being.

Number of Pages in PDF File: 12

Keywords: Treaty revision, ratification, unanimity, EU law, EU politics

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2422898

Founding Principles of EU Law. A Theoretical and Doctrinal Sketch

Armin Von Bogdandy

Max Planck Society for the Advancement of the Sciences - Max Planck Institute for Comparative Public Law and International Law 
June 1, 2010

Revus 12 | 2010. 35-56
Abstract:     

The article provides the groundwork for the constitutional law approach to EU legal scholarship. It stresses the special role of the basic principles of the EU legal order, explaining their dimensions, foundations and their functions. First of all, legal principles play a special role in ordering the legal material into a meaningful whole, a function the author entitles doctrinal constructivism. Furthermore, they can supply arguments for the creative application of the law and can at the same time help to maintain and further legal infrastructure. The author also explains their legal and integrative aspects and their constitutional characteristics and illustrates their significance for establishing unity of EU law in light of heterogeneous primary law.

Number of Pages in PDF File: 23

Keywords: basic principles, constitutional law, constitutional theory, European Union, functions of legal scholarship

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2427443