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Shaping liability in private enforcement actions : a framework from tort and competition damages law in Europe and the United States
No full textDefence date: 12 June 2024Examining Board: Prof. Stefan Grundmann (Humboldt University, Supervisor); Prof. Martijn Hesselink (European University Institute); Prof. Olha Cherednychenko (University of Groningen); Prof. Dörte Poelzig (University of Hamburg)Private enforcement—the pursuit of public policies through private plaintiff litigation — is used more than in the past, with the United States and the European Union as two of its main promoters. Theoretical and practical problems arise as private law, designed for another purpose, needs to change to adapt to the demands of enforcing public policy. The main question is how to change existing tort law rules to incentivise enforcement without sacrificing the structure and rationality of private law. Focusing on substantive law and specifically on the conditions of liability, I will ask how and why they should change, if at all. For this reason, I will use competition damages claims in the EU and the US as the primary case study, investigating how standing, causation, fault, and passive liability, are shaped in this area compared to general tort law.Chapter 8 'Standing' of the PhD thesis draws upon an earlier version published as an article 'Is 'more' better? : broadening the right to sue in competition damages claims in both sides of the Atlantic' (2022) in the journal 'Journal of European competition law & practice'
Human flourishing and structural injustice
No full textDefence date: 03 June 2024Examining Board: Prof. Andrea Sangiovanni (King's College London, Former European University Institute, Supervisor); Prof. Anton Hemerijck (European University Institute); Prof. Serene Khader (The City University of New York); Prof. Maeve McKeown (University of Groningen)In this thesis I argue that we should think of human flourishing in terms of the development of human capacities and that we should understand oppression in terms of the structural obstacles to such development. My overarching aim is to bring the analysis and critique back together by showing that thinking more carefully about well-being can help us think better about the web of interrelated psycho-social and political phenomena such as internalised oppression, personal autonomy, structural oppression, and ideology. My arguments thus contribute to a broader discussion on the nature of justice by providing an analytic normative framework for the critical theory of oppression. The thesis consists of three parts. In the first part, I argue against the prevailing theory of subjective well-being in moral philosophy and in public policy, by subjecting to critical analysis its philosophical foundations. I then defend an objective developmental theory of well-being that can be traced to an idea of Eudaimonia. I argue that we flourish because we realise a range of human capacities rather than because we satisfy our preferences or experience positive mental responses. I propose to understand well-being in terms of self-development – as a process of development of one’s human capacities in the pursuit of one’s projects for their own sake. I answer some of the most important objections to the proposed view. In the second part, I start with problematizing the phenomenon of internalised oppression – or adaptive preferences – in such a way as to show its key relevance for a successful theory of oppression and personal autonomy. I discuss various theories of adaptive preferences, but find them unsatisfactory, proposing a developmental view that improves our understanding of this phenomenon. I argue that adaptive preferences should be defined by their inconsistency with human flourishing and their causal relationship to flourishing-incompatible formative conditions. I introduce the notion of structurally imposed constraining preferences to signal what I think is normatively important in cases of internalised oppression, namely the material conditions of class-divided social systems that thwart the universal and free realization of people’s developmental capacities. In the third part, I call for a widening of our analytic tools to include the theory of subjectivation, critical phenomenology, and ideology critique. I claim that constraining preferences represent a form of internalised enclosure, a distinct type of psychic and corporeal oppression that thwarts well-being understood as self-development. I then argue that this is a form of structural oppression because it affects individuals depending on how they are structurally positioned in a society. To fully understand the mechanism of perpetuation of such structural oppression I suggest that we need an account of ideology that focuses on the habitus of agents rather than on distorted cognitive beliefs. I then propose a concept of ideology as a practice encoded into cognitive and corporeal responses to the world; it stabilises oppression by erasing its effects through the creation of distinctive life-worlds that constrain the horizon of one’s well-being. I think that highlighting this dimension of oppression clarifies the goals of emancipatory struggles
The intellectual sources of the European Union’s response to the rule of law crisis in the Member States
No full textDefence date: 05 June 2024Examining Board: Prof. Gábor Halmai (European University Institute, Supervisor); Prof. Martijn Hesselink (European University Institute); Prof. Fernanda Nicola (Washington College of Law); Prof. Neil Walker (University of Edinburgh)The thesis analyses the legal response of European Union supranational institutions to the laws and policies systemically affecting the rule of law at a national level in the Member States. This EU response, developed as of 2010s onwards, has been meant to protect common values enshrined in Article 2 of the Treaty on European Union, through EU legislation, soft law and case law of the Court of Justice. These institutional reactions have been accompanied by a remarkable number of policy proposals and the normative interventionist EU legal scholarship. Much of academic attention thus far has been devoted to the problems of effectiveness, legitimacy and doctrinal innovation of EU response to the rule of law crisis in the Member States. This thesis in turn frames this response as the new, growing phenomenon in EU constitutional order. It contributes mainly to the critical constitutional theory, focusing on the supranational level of the Union. Hence the thesis traces the paths of EU constitutional ideas, discourse and argumentations, so as to examine how the response of supranational institutions emerged in its actual shape. In the face of highly disputable effectiveness of the mechanisms aimed to protect the rule of law, the thesis suggests reflecting on how these mechanisms are conditioned by the recent history of EU constitutional law. In order to do so, the thesis interprets the current EU response in the light of EU constitutional thought, through its most important discussions, concerning constitutional pluralism, constitutional change and membership in the EU. In this way it becomes clear how concrete interpretative patterns, problems, paradoxes and understandings reappear in the new context of the rule of law crisis. The research therefore deepens our assessment of the recent Union’s rule of law developments and reconnects them to the broadly conceived EU constitutionalism
The use of cost-benefit analysis in EU administrative rulemaking
No full textDefence date: 27 September 2024Examining Board: Prof. Giorgio Monti (European University Institute; Tilburg Law School, Tilburg University, Supervisor); Prof. Deirdre Curtin (Law Department, European University Institute); Prof. Susan Rose-Ackerman (Yale Law School, Yale University); Prof. Fernanda Nicola (Washington College of Law, American University)Cost-Benefit Analysis (CBA) aims at cataloging the costs and benefits of different policy actions, to establish a comparison among them and decide how to proceed so that the benefits outweigh or (at least) equate to the costs. Over the years, CBA has captured the interest of many decision-makers, not least due to the simplicity of its rationale. In the US, both Republican and Democratic administrations have repeatedly confirmed the value of such analysis. The European Commission has traditionally been more sceptical on CBA, as many of the benefits of regulation – notably those relating to public health and the environment – may not be easily quantified in monetary terms. This study will show that the way the EU has envisaged the role of CBA in the ex-ante impact assessment of EU legislation leaves abundant space for improvement. First, looking at concrete examples of CBA documents produced by the Commission and its agencies, the CBA assessment exercise will oftentimes contradict the basic tenets of text-book CBA, reducing itself to a sequence of wordy statements instead of numeric evaluations. Second, in the absence of an explicit methodological approach agreed on at interservice and interinstitutional levels among the EU co-legislators, the different actors involved in EU rulemaking cannot really communicate among themselves to discuss the estimates of the costs and benefits identified in the assessment. Third, the enormous number of acts whose impacts the Commission is required to evaluate, generates a substantial administrative burden on EU administrators, with the paradox that to cut red tape results in additional red tape and inefficiencies. Fourth, the whole better regulation agenda package, along with any impact assessment documents, are enshrined in “soft law” acts, which are not legally binding and cannot be subject to judicial review by EU judges. To systematically identify the most eye-catching weaknesses of the use of CBA in EU rulemaking, this study puts forward a new theoretical framework, which will be named the “double-check theory”.Chapter 6 'Cost-benefit analysis and public engagement' of the PhD thesis draws upon an earlier version published as an article 'Democratic accountability in stressful times : when decisions must be made quickly' (2023) in the journal 'Penn State journal of law & international affairs'
The margin of appreciation at the European Court of Human Rights : a court under pressure in search of legitimacy
No full textDefence date: 13 June 2024Examining Board: Prof. Martin Scheinin (European University Institute, Supervisor); Prof. Urška Šadl (European University Institute); Prof. Janneke Gerards (Utrecht University); Prof. Malcolm Langford (University of Oslo)The margin of appreciation is a doctrine in the caselaw of the European Court of Human Rights. It is contested in the literature both descriptively and normatively, but in the most overarching of terms, it is assumed to increase deference to state parties for reasons of subsidiarity, democracy, or procedural quality. Originally conceived in connection with national security and derogation in times of emergency, the doctrine has since been applied more broadly and is today often conceptualised as emerging from the ‘necessary in a democratic society’ limitation on legal interferences with Articles 8–11 of the European Convention on Human Rights. In practice, however, it has been applied in connection with almost every right in the Convention. In recent years, some politicians, academics, and judges have made the case that the margin should be applied more ‘robustly’. This suggestion has moved from general discussion to a more formal request and encouragement in the political declarations by the Committee of Ministers during the Interlaken reform process. This thesis investigates whether abiding by this request would be compatible with the Court’s independence and its purpose, and whether the Court has abided. To this end, an unprecedented in-depth empirical study of the use of the margin of appreciation by different actors at the Court was conducted, along with a reflection into the foundational principles behind the doctrine, building a framework for determining when and how it is appropriate to apply the margin in the Court’s caselaw and when it is not. The main finding of this thesis is that despite claims to the contrary in political speech and academic literature, the margin does not appear to have been applied more often in response to increasing criticism, and statistically speaking the margin does not help states win cases.Section a from Chapter 1 'Epistemology, methodology, and methods for contentious topics : sampling and inference in empirical legal studies' of the PhD thesis draws upon an earlier version published as an article 'Battling for the is-position in the field of law : the problem with case-law sampling' (2024) in the journal 'European journal of legal studies'.Section b from Chapter 6 'Empirical study of the margin of appreciation : does de use of the margin of appreciation win cases?' of the PhD thesis draws upon an earlier version published as an article 'Subsidiarity does not win cases : a mixed methods study of the relationship between margin of appreciation language and deference at the European Court of Human Rights' (2023) in the journal 'Leiden journal of international law'.Section d from Chapter 2 'Reacting to pressure : a brief history of an ever-reforming Court : conclusions on current challenges to the Court in a historical perspective' of the PhD thesis draws upon an earlier version published as chapter 'The Copenhagen declaration : wrapping up the Interlaken reform?' (2022) in the book 'Theory and practice of the European Convention on Human Rights'
The European Citizens' Initiative as an instrument of deliberative democracy
No full textDefence date: 22 May 2024Examining Board: Prof. Martijn Hesselink (European University Institute, Supervisor); Prof. Gráinne De Búrca (European University Institute); Prof. Christine Landfried (University of Hamburg); Prof. James Organ (University of Liverpool)This thesis argues that the mechanism of the European Citizens’ Initiative (ECI) should fulfil the role of an instrument of deliberative democracy. It engages with the debate on the democratic deficit in the EU and argues that the persuasiveness of arguments on the existence or non-existence of the deficit depends on the kind of legitimacy that is expected from the EU. The thesis endorses the view that the EU should enjoy reasoning-based normative legitimacy, rooted in citizens’ political autonomy and agency in the process of law-making. Following that criterion, indeed there is a democratic deficit in the EU. Arguably, deliberative democracy put into practice can work to cure it. The underlying premise of the deliberative democracy theory is that the addressees of the law should also be able to consider themselves its co-authors. The ECI offers such a possibility. It allows seven citizens from seven different EU Member States to propose a new law to the European Commission. However, since its inception the mechanism has not brought substantial success in terms of legislation. This in turn prompts negative evaluations of its hitherto effectiveness. A counterargument is that legislative success should not be seen as the only measure of success of the mechanism, as it has the potential to also fulfil other roles. This thesis is situated in the latter strand. It argues that the ECI should fulfil a deliberative democratic role. In order to evaluate whether it currently does so, two criteria are drawn from the normative framework. The first one relating to the role of reasons and the latter to the openness of the legislative power. The thesis concludes that currently the ECI does not fully deploy its deliberative potential and discusses potential reforms which could lead in that direction, inter alia the proposal for deliberative meetings
Manufacturing consensus : the domestic politics of foreign and security policy
No full textDefence date: 14 March 2024Examining Board: Prof. Jeffrey T. Checkel (European University Institute, Supervisor); Prof. Stephanie C. Hofmann (European University Institute); Prof. Elizabeth N. Saunders (Columbia University); Prof. Wolfgang Wagner (Vrije Universiteit Amsterdam)The conventional American adage that “politics ends at the water’s edge” is no longer taken for granted across the democratic world. Political parties and domestic actors actively contest foreign and security policy, undermining pre-existing academic expectations about cross-party consensus as a defining feature of foreign and security policy. Recent scholarship has delved into how partisan contestation influences states’ foreign and security policy behavior (Hofmann and Martill 2021; Haesebrouck et al., 2022), triggers policy change (Chryssogelos, 2020), and affects a country’s standing in international affairs (Myrick, 2021). This shift towards viewing foreign and security policy as contested arenas, akin to other domestic policy fields, is supported by a growing body of empirical evidence (Raunio & Wagner, 2020; Saunders, 2024). However, this perspective underappreciates the possibility that partisan contestation might actually foster cross-party consensus. In other words, scholars might ignore how contestation may itself lead to consensus under certain conditions. Both partisan disagreements and cross-party consensus are recurring phenomena in the political arena, with parties often diverging on the objectives and strategies of foreign and security policy. Nonetheless, such disputes can lead to cross-party consensus, with previous opposing parties abandoning their opposition and joining their rivals to support the same policy orientations or solutions. This dissertation explores the role of reinforcing political pressures to explain how crossparty consensus may emerge out of episodes of partisan contestation over foreign and security policy. It argues that exposure to reinforcing pressures from above, coming from international partners, and from below, originating from opinion leaders and the domestic public, together with horizontal pressure from rival parties, forces a party to reconsider its political objectives in a way that enables cross-party consensus. In explaining how reinforcing pressures lead to cross-party consensus, the dissertation introduces the concept of political entrapment as the mechanism through which consensus is reached. Exposure to reinforcing political pressures, it is said, forces a party into a situation where it must tradeoff between its office-seeking and policy-seeking motivations, prompting intra-party struggles that lead to policy shifts, enabling consensus. This process demonstrates that consensus can emerge through the exertion of political pressure rather than through other causal channels, such as bargaining or persuasion, as some other scholars may argue. Additionally, this dissertation contributes to the debate between culturalists and party politics scholars in international relations (IR) and foreign policy analysis (FPA) concerning the influence of culture and ideology on political motivations and policy outcomes (Hofmann, 2021). Drawing on the latest advancements in strategic culture scholarship (e.g., Bloomfield, 2012), this dissertation argues for a synthesis of party politics and culturalist approaches. Recognizing that strategic cultures can be internally heterogeneous and thus prone to contain subcultures with slightly different beliefs about the use of force helps us bridge what this dissertation suggests is an artificial divide between two bodies of scholarship that provide compatible explanations of political motivations and foreign policy change. Empirically, the dissertation examines the evolution of German foreign and security policy post-reunification, highlighting Germany’s unique historical context and its patterns of fluctuating between contestation and consensus. Through a detailed analysis of three case studies, it tests the theoretical assertions made therein: the NATO intervention in Kosovo (1998-1999), which illustrates how reinforcing pressures can politically entrap parties to facilitate a cross-party consensus; the debate over the US-led invasion of Iraq (2002-2003), a negative case where a consensus was obstructed due to an absence of reinforcing pressures; and the recent controversy over arms deliveries to Ukraine following the 2022 Russian invasion, where the Social Democrats’ policy shift underlines the effectiveness of political entrapment. Employing a longitudinal comparative case study research design and employing process tracing as a within-case method, supplemented by content analysis and archival research, this dissertation offers a nuanced understanding of how consensus over foreign and security policy can emerge out of partisan contestation
Financial activism against the neoliberal backdrop : tracing institutional variation in development finance in East-Central Europe
No full textDefence date: 07 October 2024Examining Board: Prof. Dorothee Bohle (University of Vienna, Former European University Institute, Supervisor); Prof. Anton Hemerijck (European University Institute); Prof. Cornel Ban (Copenhagen Business School); Prof. Matthias Thiemann (Sciences Po Paris)The last decade bears witness to increasing financial activism: various governments react to the shortcomings of de-regulated financial markets by becoming active as market participants themselves. This is no less true in East-Central Europe (ECE), where responses to the pitfalls of the status quo include increasing domestic and/or public shares of bank ownership, and the expanded activity of development banks. Research on these measures highlights their most prominent representations – notably the measures enacted by the right-wing governments in Hungary and Poland – and explains them in the context of changing economic policymaking paradigms by emphasising ideological shifts, discontent among the electorate, and the interests of domestic businesses. This dissertation aims to fill two blind spots in these accounts. First, the focus on Hungary and Poland cannot account for the full range of measures that diverge from the neoliberal status quo: a variety of governments engage in similar measures, while others follow such paths less successfully, and yet others refrain from any reform efforts altogether. This constellation is highlighted by a comprehensive overview of measures related to financial activism in the region. Second, the advanced explanations underemphasise the importance of the state as an actor tasked with implementing such policy in an increasingly complex environment. This emphasis is adopted by comparing Poland as a case of successful financial activism to Romania as a case of an attempted imitation of the Polish case with only limited success. Substantively, the analysis considers the management of financial instruments included in the European Structural and Investment Funds (ESIF) and the underlying institutional structures as suitable examples of financial activism more generally. The comparison highlights the importance of capacity in explaining the observed variation and stresses the pitfalls of the institutional approaches in both countries in terms of the autonomy of the bureaucracy
The Europeanisation of post-communist administrations : the Commission as a driver? A study of the European Commission’s efforts to support administrative reform in Romania, Serbia and Moldova between 2000-2020
No full textDefence date: 24 January 2024Examining Board: Prof. Emeritus Brigid Laffan (European University Institute, Supervisor); Prof. Waltraud Schelkle (European University Institute); Prof. Eva Heidbreder (University of Magdeburg); Prof. Jan-Hinrik Meyer-Sahling (University of Nottingham)Following the collapse of communism in Europe in 1989, the European Commission started supporting domestic administrative reforms in Central and Eastern Europe (CEE) and the Western Balkans in a bid to assist the transition to democratic governance and to promote the development of market economies in the region. Despite having expressed their commitment to European integration since the fall of communism, and having received considerable EU support to introduce reforms in line with EU best practices, standards and principles of administration, some countries fail to show satisfactory progress in line with the EU’s expectations. This thesis explores why that is the case by analysing EU-funded programmes that have been supporting public administration reform in three post-communist countries (i.e. Romania, Serbia and Moldova), over a period of two decades, specifically between 2000-2020. All in all, this dissertation explores the Commission's initiatives and tools that are intended to drive administrative reform in line with European principles of public administration, and assesses their normative and financial input, their implementation, and their impact on the public administration of each country. The study considers the historical legacies of communism in each case study country, as well as the institutional and political dynamics at both the supranational and domestic levels, in a bid to grasp the complexities inherent in the transformation that post-communist states undergo when seeking to become fully-fledged EU Member States. The findings encapsulate the challenges and dynamics involved in the Europeanisation of public administrations in former communist countries and provides insights into the driving forces and barriers that shape the Commission’s ability to ‘Europeanise’ public administrations in EU Member States, Candidate States and Neighbourhood States. Building on desk research, quantitative text analysis and elite interviews undertaken in Romania, Serbia, Moldova, the European Commission and the OECD-SIGMA, this thesis traces the genesis and gradual institutionalisation of the European Commission’s toolkit for supporting domestic administrative reform in line with European principles, and evaluates its implementation over a twenty-year period in each case-study country. Ultimately, the thesis reveals the complex interplay that exists between the Commission’s strategies, the distinct historical and political contexts of each country, and the challenges posed by entrenched legacies of communism in modern societies. The thesis underscores how the effectiveness of the European Commission in fostering meaningful administrative reforms is significantly influenced by wavering political will and commitment for reform within these countries, alongside the Commission's own limitations in imposing effective conditionality and in monitoring the implementation of reforms. It highlights the unique challenges each country faces: Romania, despite being an EU member, struggles with the legacy of centralised governance and the politicisation of the country’s public administration; Serbia’s lack of a credible perspective for joining the EU allows political elites to balance EU conditionalities with internal political dynamics and vested interests; and Moldova, despite having nominally pro-European parties in power, is heavily influenced internally by external geopolitical pressures, particularly from Russia. The study also points to the role of broader geopolitical considerations in shaping the Commission's approach, noting how geopolitical interests, like countering Russian influence or maintaining peace in the Western Balkans, can sometimes overshadow the primary goal of driving administrative reform in keeping with principles of liberal democratic governance. The thesis concludes by emphasizing that while there is a general pro-European discourse in these countries, the actual implementation of reforms that promote efficiency, accountability, and transparency is hindered by deep-seated communist practices and chronic political instability, making it challenging to see the European principles of public administration being adopted in the daily practice of civil servants and systems of public administration from the countries analysed in this thesis. This analysis contributes to a deeper understanding of why the Commission's efforts have seen limited success, despite substantial investment and ongoing efforts to support administrative reform in line with European principles of public administration, thereby offering valuable insights for policymakers, scholars, and practitioners involved in the Europeanisation of public administration
Navigating social media environments : the influence of social media environments on attitudes towards immigration in Denmark and Sweden
No full textDefence date: 05 June 2024Examining Board: Prof. Andrew Geddes (European University Institute, Supervisor); Prof. Simon Hix (European University Institute); Prof. Lene Aarøe (Aarhus University); Prof. Pieter Bevelander (Malmö University)This dissertation explores the dynamic interplay between social media environments and individual attitudes, focusing on the politically salient topic of immigration. Acknowledging the significant role of social media in political communication, the research aims to unravel the complex mechanisms through which these platforms influence attitudes. The study addresses the research question: "How does political information and discussion on social media environments affect attitudes towards immigration? "The thesis systematically examines three crucial aspects: the impact of human values on attitudes, the relationship between values and information in social media engagement, and the strategies politicians employ to target specific audiences. Additionally, it investigates how the attitudes of their social groups influence individuals' attitudes towards immigration. The empirical focus lies on Denmark and Sweden, utilising novel data from CrowdTangle, survey data from the European Social Survey, and self-collected experimental data. Conceptually, the thesis argues that social media does not inherently change attitudes but rather activates and channels existing beliefs. It combines theoretical concepts from social psychology and political science to unveil the mechanism behind this process. The research contends that, through social media, politicians tap into individuals' values, activating and shaping their attitudes. The dissertation concludes by presenting the overarching mechanism through which political attitudes are influenced by online information, emphasising the intricate interplay between values, information, and social environments. The final section delves into five key implications for comprehending and navigating the intricate landscape of social media's impact on political attitudes. Firstly, it underlines the significance of values in understanding attitudes. Secondly, it exposes the intricate role of values in attitude activation and channelling. Thirdly, the thesis explores the untapped potential for politicians to leverage values on social media. Furthermore, it addresses the growing traction of far-right discourse on social media. Lastly, it demonstrates that attitudes do not necessarily follow suit despite the apparent polarisation on social media