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Judicial control of the politics of differentiated integration
No full textThis chapter examines to what extent the Court of Justice of the European Union has contributed to shape, through its case law, the legal feasibility (and therefore also the political attractivity) of the various modes of differentiated integration (opt-outs for single countries, enhanced cooperation, and international agreements between groups of EU states). The Court has traditionally sought to restrict the possibility for single Member States to derogate from common European legal norms. By contrast, it has generally supported the recourse to differentiated integration by large groups of Member States when such initiatives, in the Court’s opinion, contribute to advance the European integration process
Introduction:Locating judicial politics
No full textThe Court inhabits a ‘political space’ to which it is called upon to respond. This points to its need to develop cooperative relationships not only with courts but also with political actors (such as national governments and the EU legislature) and even to directly address and explain decisions to EU citizens themselves. This book is aimed at answering the question of ‘How does the CJEU position itself as a political as well as a legal actor?’ with a view to better understanding the work of the Court and addressing its contestation. For that purpose, we explore in this introductory chapter what is meant by judicial ‘activism’ and judicial ‘politics’, before examining the different varieties of judicial politics our authors have shown an interest in. This will pave the way to drawing some lessons on the factors to take into account when seeking to address and respond to contestation of the work of the Court
Fundamental what? : the difficult relationship between foreign policy and fundamental rights
Full text linkIn the past years we have witnessed an increased activity in the field of EU foreign policy. In particular, following the terrorist attacks in the United States first, and in Europe later, the Union has adopted a series of measures which directly affect individuals. In some instances, those measures were aimed at implementing Security Council resolutions which imposed sanctions on named individuals and / or alleged terrorist organisations; in other cases, following the general Security Council Resolution on terrorism, the EU adopted its own measures. The ‘fight against terror’ has also led to an increased activity in the field of co-operation in the criminal sphere, and most notably in the adoption of the framework decision on terrorism and the framework decision on the arrest warrant.
The increased activity in fields which affect individual rights raises important problems in relation to fundamental rights protection. In this respect, the EU shows a considerable degree of schizophrenia: on the one hand, it seeks to reassure its citizens, as well as its international partners, as to its sincere commitment to fundamental rights through the adoption of the Charter, its action in the field of discrimination, the creation of the fundamental rights agency, as well as the considerable improvements that would have been introduced by the Constitutional Treaty. On the other hand, the fundamental rights agency lacks powers in relation to co-operation in criminal matters and common and foreign security policy, the areas in which fundamental rights scrutiny would have been most needed and useful, and, generally speaking, the Union seems incapable to ensure even that minimum standard of protection required (from the Member States) by the European Convention on Human Rights. Nor should one consider this schizophrenia as simply the result of an inherent pathological condition stemming from the European Union’s institutional and constitutional structure. After all, whilst it is true that the second and third pillars are ill equipped to afford even a minimum level of democratic and judicial accountability, it is also true that action at Union level was not essential, and the Member States could have well refrained from using Union instruments until that moment in which a more healthy institutional structure had been put into place. And even should one consider that co-ordinated Member States’ action would have not been sufficient and that therefore Union activity in these fields was an absolute necessity, it should be noted that there are instances, some of which will be examined in detail below, where the Union and (some) Member States could have chosen a different path to reach the same result, whilst being more respectful of both their citizens and their own constitutional obligations.
In this contribution I will analyse some of these problems. In particular, after having given a brief account of the Union’s institutional structure, I will analyse, from a fundamental rights perspective, the problems arising from the adoption of ‘terrorist lists’. In this respect it is necessary to distinguish between the Taliban list, which is of UN derivation and which does not leave any discretion to the EU as to whom should be included in the list, and the EU’s own list. The latter is further divided in two types of listing: foreign-linked alleged terrorists, and those alleged terrorists who do not have any link with outside the EU. My overall conclusion is that we are witnessing a progressive erosion of the very guarantees that were at the foundation of post-war nation states, a result which is perhaps inevitable once concepts which are inherently political, and to a certain extent subjective, such as the definition of terrorism, are transformed into objective and unquestionable legal ‘truths’ via the medium of international executive action
The Trade Versus Culture Discourse: Tracing its Evolution in Global Law
Full text linkThe intensified flows of goods, services, peoples and ideas across borders intrinsic to globalization have had numerous and multi-faceted effects. Those affecting culture have been perhaps the most controversial, as it is more often than not difficult to identify the spill-overs across economic and non-economic areas and across borders, as it is equally hard to qualify the effects of these spill-overs as positive or negative. The debate also tends to be politically and even emotionally charged, which has so far not proven advantageous to establishing a genuine dialogue, nor to finding solutions. This contention and the divergent interests of major players in the international community have been reflected in the institutions and rules of global law. It is the objective of this chapter to explore this institutional architecture, in particular its main (and opposing) constituent fora of the World Trade Organization (WTO) and the United Nations Educational Social and Cultural Organization (UNESCO). The chapter traces the evolution of these institutions and their interaction over time, as well as the underlying objectives, demands and strategies of the key proponents in the trade versus culture discourse, which ultimately shaped the existent law and policy. The chapter concludes with an appraisal of the present state of affairs situating the discussion into the contemporary global governance landscape
The role of judges in academic and political discourse
No full textThe paper aims at exploring the implications of ‘academic activism’ by judges at the Court of Justice, due the specificities of the European institutional setting and the EU legal framework. The contribution will first introduce the possible sources of interaction between academia and the judiciary (section 2) since judges’ scholarly writing is but one of the modes in which the judiciary may engage in dialogue with academia. The goal here is to underline how judicial and academic work differ in nature, aims, and features, but they are likely to interact, and when they do, legal systems have to accommodate the possible ensuing tensions. Following that preliminary part, section 3 will delve into one particular form of interaction between scholarly debate and the judiciary, which is the academic writing by judges, more specifically by members of the Court of Justice. Rather than capturing the details of the extent to which judges at the ECJ engage in legal scholarly writing, our research aimed at gaining an overall picture of the magnitude of the phenomenon, considering also the composition and the academic career of the members of the Court. This broad notion served as a basis to explore the possible points of concerns arising from ‘academic activism’, in particular undermining collegiality or altering the perception of judicial independence.
On our part, we believe that there is no great danger in judges participating to academic debates and that the judiciary’s freedom of expression is a paramount interest, provided of course such participation does not interfere with the effectiveness of proceedings. This is not to say that members of the judiciary should not exercise caution in expressing their views, but this is a matter of desirability better left to the wisdom of the individual, rather than a matter of institutional concern. The concluding remarks will underline how balancing the freedom of expression of members of the judiciary with the independence of the Court deserves particular care in the EU due to the nature of the Court as a judicial body that is both more visible and more open to challenge than national apical courts
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