sabato 31 marzo 2012

Davies on Network Governance Theory

Network Governance Theory: A Gramscian Critique

Jonathan S. Davies

De Montfort University

Environment and Planning A, Forthcoming

Influential governance theories argue that we live increasingly in a world of networks, either relegating hierarchy to the shadows or dismissing it altogether. This paper develops a Gramscian critique of these currents, advancing two key arguments. First, drawing on Gramsci’s concepts of hegemony and passive revolution, it reinterprets the cultivation of networks as a prominent element in the hegemonic strategies of Western neoliberalism, exemplified by UK public policy. Second, however, governing networks struggle to cultivate trust, relying instead on hierarchy and closure. The paper argues that network governance can therefore be understood as a form of Gramsci’s integral state, a concept which highlights both the continuing centrality of coercion in the governance system and the limits of the networks project. It concludes that conceiving of urban governing networks as micro-configurations of the integral state offers a distinctive way of overcoming the ‘government to governance’ dualism.
Number of Pages in PDF File: 46
Keywords: Governance, Networks, Gramsci, Neoliberalism, Hegemony, Integral State, Passive Revolution

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Fabbrini on Free Market and Right to Strike

Europe in Need of a New Deal: On Federalism, Free Market and the Right to Strike

Federico Fabbrini

European University Institute

Georgetown Journal of International Law, Vol. 43, 2012

The paper analyzes the protection of the right to strike in Europe in a comparative perspective with the United States (US). The paper argues that the overlap and interplay between state law and European Union (EU) law in the field of industrial relations has generated major tensions. Although the protection of collective labour rights varies widely across EU member states, the development of a judge-made standard for the regulation of industrial action at the supranational level has challenged the effectiveness of the protection of the right to strike in most EU countries. In fact, the right to strike has been recognized at the EU level, but has been subjected to significant limitations in order to ensure free market principles. As the paper claims, nevertheless, the dynamics which Europe is currently experimenting are not sui generis and rather reveal numerous analogies with the constitutional experience of the US. For long time tensions between social rights guarantees and free market rules have characterized the US because of the interaction between state and federal law. During the New Deal, however, the US found a way to address the challenge of protecting labour rights in a federal system committed to the free market by enacting federal legislation such as the Wagner Act. The paper hence explores how additional reforms may be envisaged in the EU constitutional system to strengthen collective labour rights vis-à-vis free market principles and advances the argument that Europe should enact an EU regulation setting a standard for the protection of strike action in labour-management disputes having a cross-border dimension. Taking also into account the unprecedented effects of the current economic crisis, the paper concludes that if Europe wants to take the right to collective action seriously and strike a ne/w balance between market integration and social protections, it needs a New Deal.
Number of Pages in PDF File: 73

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Lindseth on the Administrative Character of European Governance Revisited

Constitutionalism Beyond the State?: The Administrative Character of European Governance Revisited

Peter L. Lindseth

University of Connecticut School of Law

Cardozo Law Review, Vol. 33, No. 5, 2012

This article is my contribution to a symposium at Cardozo Law School in October 2010 on Michel Rosenfeld’s recent book, The Identity of the Constitutional Subject (2010). I focus in particular on the question posed in Rosenfeld’s final chapter, 'Can the constitutional subject go global?' Like many other scholars, Rosenfeld cautiously looks to the experience of the European Union (EU) as a possible model for such denationalized constitutionalism. I believe this approach requires even more circumspection than Rosenfeld rightly brings to it. Understood historically, European integration is best seen as a new, denationalized stage in the historical process of diffusion and fragmentation of normative power into the administrative sphere, whether within or beyond the state. Even as significant regulatory power has migrated to Europe’s denationalized system of governance, the capacity for ultimate legitimation has remained distributed among the 'constituted' bodies of government in the Member States; no similar capacity has yet migrated to the EU level, despite the best efforts of Europe’s supranational institution-builders over time. The evolution of European public law over the last six decades can thus best be understood as an effort to overcome a core disconnect - between the exercise of otherwise autonomous supranational regulatory 'power,' on the one hand, and the persistence of the nation-state as the primary source of democratic and constitutional 'legitimacy,' on the other. This separation of power and legitimacy has been the identifying characteristic of administrative governance as it evolved over the course of the twentieth century. Although often overlooked in the literature on European integration, European public law has depended on the legitimating structures and normative principles of administrative governance in its effort to reconcile Europe and the nation-state for more than over a half-century. In this sense, the EU is best understood as 'administrative, not constitutional' rather than as a possible model of 'constitutionalism beyond the state.'
Number of Pages in PDF File: 13
Keywords: administrative governance, constitutionalism beyond the state, European Union, European integration

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Orsolic on EU citizenship

Constitutional Provision on EU Citizenship – The Case of Croatia

Tina Orsolic

University of Zagreb - School of Law

Dutch Constitutional Law Review, Volume 2, 2011

Croatia is the first State to adopt a provision concerning European citizenship in its Constitution: None of the current EU Member States’ Constitutions include such an article. Three issues concerning this provision are of interest. First, what is the legal effect of the inclusion of such a provision in the Constitution within the present context of European integration? Second, what were the reasons for Croatia to include this provision in the Constitution? Third, what consequences will this provision likely generate in the future? The article analyzes these questions and concludes that the adopted constitutional provision on European Union citizenship may turn out to be much less benign than would first appear.
Number of Pages in PDF File: 15
Keywords: constitutional amendment, European Union citizenship, primacy of EU law, EU membership

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Bonadio and Santo on "Murphy"

'Communication to the Public' in FAPL v QC Leisure and Murphy v Media Protection Services (C-403/08 and C-429/08)

Enrico Bonadio

City University London - The City Law School

Mauro Santo

M&R Europe, Intellectual Property Legal Advisors, Milan

European Intellectual Property Review, Issue 4, pp. 277-279, 2012

On 4 October 2011 the Court of Justice of the European Union released its decision in FAPL v QC Leisure and Murphy v Media Protection Services (Joined Cases C-403/08 and C-429/08). Amongst the many aspects dealt with, the Court gave its interpretation of ‘communication to the public’ under Article 3(1) of the Info Society Directive and concluded that the showing of live Premier League matches in pubs does amount to such communication.
Number of Pages in PDF File: 3
Keywords: Intellectual Property, Coyright, Satellite, Communication to the public

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mercoledì 21 marzo 2012

A collaborative Doctoral Programme in Contemporary Legal and Political Theory

Participating Institutions:

University of Antwerp, Centre for Law and Cosmopolitan Values
University of Glasgow, School of Law,
Christian-Albrechts University (Kiel), Chair of Public Law and Legal Theory
Tilburg University, Chair of Legal Philosophy

The 'Globalisation and Legal Theory’ doctoral programme builds on a collaboration between the Universities of Antwerp (Belgium), Glasgow (United Kingdom), Kiel (Germany) and Tilburg (The Netherlands) that combines the expertise of all four institutions in bringing critical legal thought (in a broad sense) to bear on contemporary global challenges. The doctoral programme draws on different strands of legal theory around the foundational notions of normativity, (human) rights, and justice in a globalised world. We welcome PhD proposals that address these foundational notions as well as their relation to concrete and practical issues and problématiques.
What we offer
The Collaborative Doctoral Programme combines the advantages of close, personalised supervision in research institutions with an excellent reputation in legal theory with the exciting opportunity to become part of a dynamic research community that spans across four universities in four different EU Member States. With mobility and cooperation being key features of the programme, there will be ample opportunity for doctoral students to become involved in research activities of all participating universities. A collective annual doctoral colloquium, regular workshops, and seminar series involving internationally renowned academics and practitioners are integral parts of this doctoral programme that encourages the engagement of its researchers in a vibrant international research culture.

German Law Journal New Issue

13 German Law Journal No. 3 (2012)

Table of contents:

Full issue:

Besselink on the Sayn-Wittgenstein

Respecting Constitutional Identity in the European Union: An Essay on ECJ (Second Chamber), Case C 208/09, 22 December 2010, Ilonka Sayn-Wittgenstein v. Landeshauptmann von Wien

Leonard F. M. Besselink

University of Utrecht - Faculty of Law; Netherlands Institute for Advanced Studies

Common Market Law Review, Forthcoming

This essay discusses the Sayn-Wittgenstein judgment of the ECJ, in which it acknowledged for the first time an appeal to the constitutional identity of a member state in order to limit a right under EU law, under Article 4(2) TEU, i.e. the duty for the EU to respect the national identities of the Member States.

It tries to identify its meaning for the constitutional relations between the EU and the Member States constitutional orders as it is viewed by the ECJ. The careful conclusion is that these have reached a stage of greater maturity in comparison to the more formative period of EU primacy.
Number of Pages in PDF File: 18
Keywords: Constitutional law, EU law, constitutional identity, national identity 

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Letsas on the ECHR as a Living Instrument

The ECHR as a Living Instrument: Its Meaning and its Legitimacy

George Letsas

University College London - Faculty of Laws

March 14, 2012

The idea that the ECHR is a living instrument that must be interpreted according to present-day conditions has been a central feature of Strasbourg’s case law from its very early days. This paper begins by providing a general account of the way in which the European Court of Human Rights has understood and used evolutive interpretation, by looking at relevant case law and how it has developed over time (sections 2 and 3). It then moves on to discuss the rationale and justifiability of the doctrine, particularly in relation to the moral foundations of human rights (section 4). The second part of paper (section 5) addresses the general issue of the European Court's legitimacy over contracting states and the role that evolutive interpretation plays in arguments in favour and against legitimacy. It argues that commitment to evolutive interpretation is essential, rather than a threat, to the Court's legitimacy.
Number of Pages in PDF File: 24
Keywords: European Convention on Human Rights (ECHR), European Court of Human Rights, living instrument, evolutive interpretation, legitimacy, margin of appreciation, consensus 

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Schwöbel on Global Constitutionalism

Global Constitutionalism in International Legal Perspective - Introduction

Christine E. J. Schwöbel

University of Liverpool, School of Law

September 2010

Queen Mary Studies in International Law, Martinus Nijhoff Publishers

The question of whether a global constitution exists or is emerging, and if so, what form it takes, is one of the most intriguing and controversial topics of recent international theory. This book examines public international law contributions to the debate, specifically taking a step back to enquire about the underlying assumptions that inform this debate. While contemporary contributors declare the idea of global constitutionalism to be global, this book reveals and interrogates the underlying liberal democratic themes that define prevailing approaches, thus calling universality into question. Drawing on critical theories within and without the international legal discipline, this book suggests a reconceptualisation of global constitutionalism in terms of what is named ‘organic global constitutionalism’. The book thus addresses significant shortcomings and illuminates necessary reorientations to a field that is currently still in the crucial phase of formation

Le Sueur on Parliamentary Accountability and Judicial System

Parliamentary Accountability and the Judicial System

Andrew Le Sueur

Queen Mary University of London, School of Law

ACCOUNTABILITY IN THE CONTEMPORARY CONSTITUTION, Nicholas Bamforth and Peter Leyland (eds), 2012
Queen Mary School of Law Legal Studies Research Paper No. 111/2012

Tensions between political and legal accountability are a backdrop to many debates about the character and future direction of the British constitution. This essay explores a juncture of these two modes of accountability by examining how the UK Parliament exercises accountability in relation to the judicial system of England and Wales. The first part of this paper defines ‘the judicial system’ and what may be meant by parliamentary accountability in this context. The paper then takes an institutional and procedural approach to examining the opportunities Parliament has for engaging in accountability activities in relation to the judicial system, focusing in particular on the evolving role of select committees. An inductive approach is then used to map current accountability practices in Parliament in relation to particular aspects of the judicial system by drawing on examples from the parliamentary record to develop an explanation of what is and ought to be the reach of MPs’ and peers’ accountability functions relating to judges and courts. 

Armstrong on EU Social Policy

EU Social Policy and the Governance Architecture of Europe 2020

Kenneth Armstrong

Queen Mary University of London, School of Law

Transfer: European Review of Labour and Research, Vol. 18, No. 3, 2012
Queen Mary School of Law Legal Studies Research Paper No. 110/2012.

As the successor to the decade-long Lisbon agenda, ‘Europe 2020’ is the European Union’s (EU) ten-year strategy for ‘smart,’ ‘sustainable’ and ‘inclusive’ growth. This essay analyses the ‘governance architecture’ of this new agenda, and more particularly, its social dimension. Insofar as Europe 2020 has a social dimension it is located within a suite of thematic ‘flagship initiatives,’ as well as within a co-ordination framework that, while building upon the Lisbon agenda’s governance architecture, now forms part of the ‘European Semester’ framework. Whereas the governance toolkit of the flagship initiatives continues a long tradition of the deployment of EU funds and non-legislative instruments towards the EU’s social goals, the Europe 2020 agenda exhibits a more ambiguous attitude towards policy co-ordination as a ‘new’ form of EU social governance. If the flagship initiatives offer a limited capacity to bring coherence and focus to the agenda’s social dimension, then the risk is also that political energy will be concentrated on policy co-ordination as a means of strengthening EU economic governance rather than as a vehicle for articulating a progressive social policy vision.

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Mak on European Private Law and Constitutional Theory

Europe-Building Through Private Law. Lessons from Constitutional Theory

Chantal Mak

University of Amsterdam - Centre for the Study of European Contract Law (CSECL); University of Amsterdam - Faculty of Law

European Review of Contract Law, Vol. 2, 2012
Centre for the Study of European Contract Law Working Paper Series No. 2012-02
Amsterdam Law School Research Paper No. 2012-46

Questioning the link between private law and the nation-state that is implied by nationalist perceptions of the law, this paper seeks to find support for a transnational (Europeanist, constitutional-patriotist or cosmopolitan) view on private law in constitutional theory. Normative theories of constitutionalism have a bearing on questions of European private law insofar as private legal relationships are affected by the division of legal competences and the deliberation of values in the EU’s legal order. It is submitted that of three types of normative constitutional theories (constitutionalism, systemic pluralism and constitutional pluralism) a constitutional-pluralist version can provide the best framework for supporting a European private law that overcomes nationalist objections. In this context, particular attention is paid to the clarification of the relationship between the recently proposed Common European Sales Law (CESL) and national regimes of sales law. It is suggested that a constitutional-pluralist model can accommodate suborders of private law so as to relate them to the imagination of a legal-political community on the level of the EU (Euronationalist view) or to a political community based on universal values that transcend the nation-state (constitutional-patriotist view or cosmopolitan view). A conceptual connection between the fields of European private law and constitutional law is then found in fundamental rights, which define the allocation of value choices among judicial, political and market processes. Given this nature of rights, the EU Charter of Fundamental Rights may guide the articulation of principles underlying the CESL and can facilitate an institutional dialogue aimed at resolving conflicts between different orders of private law in Europe.
Number of Pages in PDF File: 15
Keywords: European private law, nationalism, legal pluralism, European constitutionalism

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Rubén Ruiz-Rufino "¡Más política!" El Pais

lunedì 19 marzo 2012

García Pelayo Seminar: Prof. Francesco Palermo, CEPC, Madrid, 20 March 2012 (11.30-13-30)

Tuesday 20 March 2012 (11:30 -  13:30)
“How asymmetric ought to be federalism?”
Speaker: Francesco Palermo (University of Verona/EURAC, Bozen)
Discussant: Guerino D’Ignazio (UNICAL, Cosenza)
Venue: Centro de Estudios Politicos y Constitucionales, Plaza de la Marina Española, 9 - 28071 Madri

domenica 18 marzo 2012

4th Summer Academy in Global Food Law & Policy

The 4th Summer Academy in Global Food Law & Policy will take place from Monday, 23 July, till Friday, 27 July 2012 on the shores of beautiful Lake Como in the North of Italy. According to established tradition, the Summer Academy brings together practitioners, policymakers, regulatory scientists and leading academics interested in food law and policy. Its declared goals are: (i) to offer a training on the foundations of global food law and policy; (ii) to provide an opportunity for professional development and networking in an inter-disciplinary setting.

The academy aims to contribute to the emerging field of global food governance by offering an innovative and interdisciplinary approach to the study of this discipline. Emphasis is placed on understanding the most cutting-edge and controversial aspects of global food law and policy. The goal of the academy is to engage lawyers, scientists, policy makers, regulatory affairs experts, and academics with both traditional and emerging areas of food law and policy by following an innovative and interdisciplinary approach. In order to achieve this, the faculty – all dedicated and distinguished food experts – are committed to use the latest research questions and always keeping an eye on real life scenarios.

The Summer Academy has an academic programme stretching over a period of five days, with the option to arrive the previous weekend. Each day a morning and an afternoon session are scheduled offering ample time for informal exchange and discussions over lunch and coffee. Depending on the lecturer’s availability, individual meetings may be scheduled between the formal teaching sessions.

Participants will explore such cutting-edge issues as:
  • the emergence of global food governance
  • the WTO’s role in the regulation of food
  • the development of nutrition profiles
  • the provision of nutrition information
  • the regulation of unhealthy food marketing to children
  • food reformulation
  • the use of food taxes and subsidies
  • the interface between health claims and IP
  • latest developments on geographical indications
  • Codex Alimentarius
  • and will engage in a final moot court
  • Keynote speech by EFSA Executive Director
The programme is available

Gardbaum on the place of Constitutional Law

The Place of Constitutional Law in the Legal System

Stephen Gardbaum

University of California, Los Angeles (UCLA) - School of Law

OXFORD HANDBOOK OF COMPARATIVE CONSTITUTIONAL LAW, Michel Rosenfeld and András Sajó, eds., Oxford University Press, 2012.
UCLA School of Law Research Paper No. 12-07

If one takes a broad, panoramic perspective on comparative constitutional law, the familiar narrative of the rise of world constitutionalism suggests a fairly straightforward and uniform answer to the most general question of the place of constitutional law in a legal system. So, too, the logically prior question of what constitutional law is. The “postwar paradigm” posits in its essential features, first, that constitutional law is the law codified in a country’s written constitution, mostly establishing the ground rules of government and protecting certain basic rights, and second that this law sits at the apex of its legal system. It is the supreme law of the land, entrenched to reflect and preserve its primacy, and authoritatively interpreted and applied by a high court with the power to set aside conflicting non-constitutional law.

Zooming in, however, on the theory and practice of constitutionalism in certain specific contexts reveals that both questions have recently become interestingly more complex and the answers provided more nuanced and diverse. So, for example, what constitutional law is and the line between it and other law, what forms it can take and the judicial techniques it may employ, have been helpfully complicated by the development of theories of both the common law and the statutory constitution in various English-speaking countries in recent years. Similarly, three different views of the general place of constitutional law in a legal system have been defended or described in different contexts, which form a spectrum running from political to legal constitutionalism, and finally to what may be called “total constitutionalism.”

Less globally, and perhaps also more familiarly, there are robust ongoing practical and scholarly debates about the place of constitutional law in certain specific areas of a country’s legal system. Thus, the old question of the relative importance and centrality of constitutional law to issues of rights protection versus governmental structure has been raised in a surprising variety of contexts and with interestingly different conclusions in recent years. The issue of the scope of constitutional law within the sphere of private conduct/private law has been a prominent one in recent bouts of constitution-making and judicial implementation, triggering much scholarly interest. Similarly, the debate about the role of constitutional law versus legislative politics in securing social and economic welfare has been enlivened and extended by recent experience, particularly in South Africa and Eastern Europe.

Overall, this increasingly rich literature suggests the importance of a genuinely comparative perspective that takes contextualized constitutional discourses seriously and results in distinct and broader conceptions of constitutional phenomena than provided by either purely domestic constitutional law or more abstract, philosophical reflection. Here, as elsewhere, focus on both sameness and difference, on paradigm and particularity, seems to offer the most useful and illuminating general methodology for the discipline.
Keywords: constitutional law, comparative constitutional law, constitutionalism, common law constitutionalism, legal constitutionalism, comparative law

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Barnett on the Rehnquist Court

Is the Rehnquist Court an 'Activist' Court? The Commerce Cause Cases

In United States v. Lopez, the Supreme Court, for the first time in sixty years, declared an act of Congress unconstitutional because Congress had exceeded its powers under the Commerce Clause. In 2000, the Court reaffirmed the stance it took in Lopez in the case of United States v. Morrison, once again finding that Congress had exceeded its powers. Are these examples of something properly called "judicial activism"? To answer this question, we must clarify the meaning of the term "judicial activism." With this meaning in hand, the author examines the Court's Commerce Clause cases. The answer he gives to the question of whether the Rehnquist Court is an "activist" court is "no."
Number of Pages in PDF File: 17
Keywords: Judicial activism, Rehnquist Court, Commerce Clause, Constitutional law

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Stone Sweet and Brunell on Trustee Courts and Evolution of International Regimes

Trustee Courts and the Evolution of International Regimes: The Politics of Majoritarian Activism in the Echr, the EU, and the WTO

Alec Stone Sweet

Yale University - Yale Law School and Yale Political Science

Thomas L. Brunell

University of Texas at Dallas - Department of Political Science

January 2012

The paper focuses on the sources and consequences of judicial power in three international regimes: the European Union, the European Convention on Human Rights, and the World Trade Organization. The courts of these regimes are trustee courts, operating in an environment of judicial supremacy with respect to states. After elaborating a theory of trusteeship, we show that state non-compliance activates, rather than paralyzes, these courts; that the threat of override is not credible and thus cannot constrain judicial lawmaking; and that courts have used their trusteeship status to enhance the effectiveness of their respective legal systems. In each regime, we examined how judges have adjudicated their most politically controversial set of cases, those involving state claims to exemptions from treaty obligations for measures that are “necessary” to achieve a specified public interest. Although there is variation among cases, we find that each court has engaged in a strategy of “majoritarian activism,” producing law that reflects a high degree of state consensus but which would not be adopted by states under unanimity decision-rules. Majoritarian activism helps these courts develop the law in a progressive manner, to mitigate potential legitimacy problems, and to render efforts at curbing the growth of their authority improbable or ineffective.
Number of Pages in PDF File: 41
Keywords: trusteeship, international courts, ECJ, ECHR, WTO, compliance, majoritarian activism

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Schauer on Breaking the Law

The Political Risks (If Any) of Breaking the Law

Is breaking the law a politically risky act for politicians and other public officials? The question is especially important in the context of legislators and high executive officials who, for reasons of immunity or otherwise, are not subject to formal legal sanctions when they break the law. In such contexts, we might think that various other repercussions would serve in the place of formal legal sanctions, such that violating the Constitution or the law would entail tangible political, reputational, and social risks. Yet a raft of examples suggests, albeit not definitively, that violating the law qua law is not ordinarily subject to non-legal sanctions. The electorate, the media, and most other potential sources of social and political sanctions reward good policy choices and sanction bad ones, but the very fact of illegality, except possibly by increasing the sanctions for bad policy choices that are also illegal, appears to play at most a small role in constraining the choices of a large group of the most influential and visible American public officials.
Number of Pages in PDF File: 34
Keywords: obedience to law, public officials, legality, legal compliance

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mercoledì 14 marzo 2012

Giacomo Delledonne "Il Bundeverfassungsgericht, il Parlamento europeo e la soglia di sbarramento del 5%: un (altro) ritorno del Sonderweg?"

 From the AIC (Associazione Italiana dei Costituzionalisti) website:

"Con una sentenza del secondo Senato del 9 novembre 2011 (BVerfG, 2 BvC 4/10 ) la Corte costituzionale federale tedesca ha parzialmente accolto due ricorsi individuali in materia elettorale (Wahlprüfungsbeschwerden) che contestavano la legittimità costituzionale della clausola di sbarramento del 5% e del sistema delle liste bloccate, entrambi applicati fin dal 1979 nell’elezione dei deputati del Parlamento europeo spettanti alla Germania. Oltre a ciò, i ricorrenti chiedevano che fossero annullate, limitatamente alla Germania, le elezioni europee del 7 giugno 2009.
Secondo la Corte la soglia di sbarramento viola i principi dell’uguaglianza nel diritto di voto e delle pari opportunità dei partiti politici ed è perciò illegittima: tale illegittimità travolge l’art. 2, comma 7, dell’Europawahlgesetz del 16 giugno 1978. Risulta invece infondato il ricorso contro il sistema delle liste bloccate. Il parziale accoglimento dei ricorsi, d’altra parte, non impone di celebrare nuove elezioni."

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Bonadio on Brüstle v Greenpeace

Stem Cells Industry and Beyond: What is the Aftermath of Brüstle?

Enrico Bonadio

City University London - The City Law School

European Journal of Risk Regulation (2012) pp. 93-97

On 18 October 2011 the CJEU released its decision in Brüstle v Greenpeace. This is a widely reported case on the exclusion from patentability of inventions related to human embryonic stem cells (HESCs) on morality grounds.
The article aims to verify whether the Brüstle ruling may expose the EU and some of its Member States to a WTO challenge for failing to comply with Article 27(2) TRIPS as well as whether the decision may have an impact in fields other than HESCs and thus be invoked to oppose the issuance, or challenge the validity, of any patent obtained through immoral or unlawful activities.

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Cengiz and Hoffmann on Turkey's EU Accession

Rethinking Conditionality: Turkey’s EU Accession and the Kurdish Question

Firat Cengiz

Tilburg Law School, University of Tilburg; Tilburg Law and Economics Center (TILEC)

Lars Hoffmann

Maastricht University

March 12, 2012

TILEC Discussion Paper No. 2012-010

In this paper we look at the Turkish reform process with regard to the Kurdish minority from the perspective of Europeanization and in the light of the external incentives model. As a result, the paper provides a systematic analysis of recent political developments in this area. Additionally, our analysis leads to the questioning of some basic premises of the external incentives model. Most notably in this specific case we find that credible EU commitment, rather than low adoption costs and weak veto players, has constituted a necessary and sufficient condition for the reform process. Likewise, we find a dynamic relationship between EU induced democratic reforms and adoption costs that is largely overlooked in the model.
Number of Pages in PDF File: 32
Keywords: Europeanization, EU enlargement, external Incentives, conditionality, Turkish-EU relations, Kurdish conflict

The Influence of General Principles of Law

Jan Wouters

Katholieke Universiteit Leuven - Leuven Centre for Global Governance Studies

Dominic Coppens

Institute for International Law

Dylan Geraets

affiliation not provided to SSRN

July 1, 2011

Katholieke Universiteit Leuven Working Paper No. 70

We analyze and compare the influence of general principle in the judicial systems of the European Union (EU) and the World Trade Organization (WTO). By clearly differentiating between external and internal general principles, we demonstrate that the use of general principles by respective judiciaries under both legal regimes is dissimilar and even somewhat opposite. The Court of Justice of the EU creates and uses internal principles of EU law and tempers the use of external principles of internal law in order to reinforce the sui generis character of the EU legal order. To strengthen their legitimacy as judicial body, the WTO adjudicating bodies on the other hand align themselves to other international courts by applying procedural external principles but seem rather careful to not construct internal WTO principles and use external substantive principles that would add to WTO obligations. This illustrates that judicial activism is still much more present in EU courts than it is in WTO courts.
Number of Pages in PDF File: 32
Keywords: European Union, World Trade Organization, General principles of law, judicial activism

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Lastra on the European Central Bank

The Evolution of the European Central Bank

Rosa M. Lastra

University of London - Centre for Commercial Law Studies (CCLS); London School of Economics & Political Science (LSE) - Financial Markets Group

Fordham International Law Journal, Spring 2012
Queen Mary School of Law Legal Studies Research Paper No. 99/2012

The European Central Bank (ECB) is a central bank whose array of functions and jurisdictional domain are determined by a Treaty instrument, the Maastricht Treaty. Following the adoption of the Lisbon Treaty, the treaty governing the ECB is now the Treaty for the Functioning of the European Union (TFEU). This distinctive feature makes the ECB a unique institution amongst central banks.

The ECB is the monetary authority in those Member States of the European Union that have adopted the euro as their single currency. The European Central Bank has played a key role during the twin financial and sovereign debt crisis in Europe. It has been an institution that has proved adept at evolving, stretching the mandate granted to it by the Treaty to the limits of the law, but within the law. Ordinary times are not the same as extraordinary times. The success of institutions is to tread carefully on what is extraordinary and try to channel the instruments at their disposal towards a return to ordinary times. Central banks often act last resort: purchasers of last resort, lenders of last resort, liquidity of last resort, investors of last resort. These last resort considerations are suited for extraordinary times. It is the immediacy of the availability of central bank liquidity that makes such liquidity essential when other sources either dry out or become prohibitively expensive.This article surveys the functions and objectives of the ECB and pays special attention to the increasing emphasis given to the goal of financial stability, a goal that was somewhat neglected when the ECB was created. The article also considers the complex structure of the ESCB, the status of independence and accountability and the challenges the institution currently faces in the light of the sovereign debt problems in Greece and other Eurozone member states. Like all EU institutions, the ECB has evolved since its inception and continues to evolve.
Number of Pages in PDF File: 20

Barnett on interpretation and construction

Interpretation and Construction

Randy E. Barnett

Georgetown University Law Center

Harvard Journal of Law and Public Policy, Vol. 34, 2011
Georgetown Public Law Research Paper No. 12-034

In recent years, it has become apparent that there is a difference between (a) discovering the semantic meaning of the words in the text of the Constitution, and (b) putting that meaning into effect by applying it in particular cases and controversies. To capture this difference, following the lead of political science professor Keith Whittington, legal scholars are increasingly distinguishing between the activities of “interpretation” and “construction.” Although the Supreme Court unavoidably engages in both activities, it is useful to keep these categories separate. For one thing, if originalism is a theory of interpretation, then it may be of limited utility in formulating a theory of construction, other than in requiring that original meaning not be disregarded or undermined.

This essay elaborates and defends the importance of distinguishing interpretation from construction for the benefit of those who may not be entirely familiar with the distinction between these two activities. Although the author begins by offering definitions of interpretation and construction, the labels are not important. Both activities could be called “interpretation”— for example, something like “semantic interpretation” and “applicative interpretation.” Still, the terms “interpretation” and “construction” are of ancient vintage and, although not always precisely defined in this way, were traditionally used to distinguish between these two different activities in which courts and other constitutional actors routinely engage when dealing with authoritative writings, be they contracts, statutes, or the Constitution.
Number of Pages in PDF File: 9
Keywords: interpretation, construction, originalism, Constitutional interpretation, Constitutional theory

Call for paper "A Comparative Institutional Framework for Global Governance Analysis"

A Comparative Institutional Framework for Global Governance Analysis,
 European University Institute, Florence, 3 May 2012 Call For Papers

Here you can find the call for paper:

sabato 10 marzo 2012

Hufty on Governance

Governance: Exploring Four Approaches and Their Relevance to Research

Marc Hufty

Graduate Institute of International and Development Studies (HEI)


Although governance is widely used in policy debates, it has remained a fuzzy concept, referring sometimes to theoretical approaches and sometimes to ideological stances. From the point of view of many developing countries it connotes a set of ‘recipes’ and constraints imposed by Western institutions. This article explores how, based on existing approaches, the concept of governance could be developed into an analytical tool for the social and development sciences that does not fall prey to ideological connotations.

For this purpose, the article presents what I consider to be the four most popular approaches to the concept of governance: corporate governance, global governance, good governance, and modern governance.

These approaches are compared and analysed in terms of both their gaps and their potential contributions to the analytical tool envisioned. The criteria developed for this tool are that it should be suitable for analysing social dynamics at various levels, in different societies, and at different times, and that there should be no limitation to the actors incorporated into the analysis. Accordingly, governance is delineated in the first instance as the decision-making processes that take place whenever collective stakes lead to competition and cooperation.
Number of Pages in PDF File: 19
Keywords: Governance, corporate governance, global governance, good governance, modern governance

Full text available at: 

venerdì 9 marzo 2012

NeJaime on Constitutional Change, Courts, and Social Movements

Constitutional Change, Courts, and Social Movements

Douglas NeJaime

Loyola Law School Los Angeles

Michigan Law Review, Vol. 111, 2012
Loyola-LA Legal Studies Paper

In Constitutional Redemption, Professor Jack Balkin provides a positive and normative account of constitutional change that locates social movements as key drivers of constitutional construction and contextualizes courts within the broader processes of political conflict and social movement contestation. By attending to the impact of social movements on constitutional law and culture, Balkin challenges influential accounts in constitutional scholarship that have turned away from courts. Contesting claims that courts inhibit, rather than contribute to, social change, Balkin pushes constitutional theory toward a more optimistic assessment of the role of courts. Balkin’s work is part of a growing body of constitutional scholarship that views constitutional change through a social movement lens and, in doing so, specifies the relationships among courts, constitutional change, and popular mobilizations. Yet constitutional theory has yet to incorporate social movement theory from sociology in a meaningful way. Therefore, I connect Balkin’s account to the three major theoretical frameworks in social movement theory – framing, resource mobilization, and political process – to develop a research agenda at the intersection of constitutional law and social movement scholarship. I argue that social movement theory would both support and refine Balkin’s account, including his treatment of courts. Ultimately, social movement insights would push constitutional theory toward a more context-specific, dynamic, and contingent account of courts that recognizes both the possibilities and limitations of law and court-based tactics.
Number of Pages in PDF File: 18
Keywords: constitutional law, constitutional theory, constitutional redemption, courts, social movements, social movement theory

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Pauwelyn on Public International Law and the Conflicts-Law Approach

Public International Law and the Conflicts-Law Approach

Joost Pauwelyn

Graduate Institute of International and Development Studies (HEI)

October 13, 2011

What are the challenges when thinking about public international law through the three dimensional prism of the conflicts-law approach? This contribution describes how international law is based on a “thin consent” paradigm. It then explores challenges that come with this paradigm under each of the conflicts-law three dimensions: law as system (how to open up a specific treaty regime to other legal orders?); law as regulation (how to open up law to non-legal expertise?); and law as governance (how to open up law to informal or para-legal regimes?). In conclusion, a shift is pointed at from “thin consent” to “thick consensus”. This shift affects in particular the parallel universe of transnational standard-setting. Yet, it also finds early reflections in formal international law adjudication.
Number of Pages in PDF File: 16
Keywords: conflicts-law, conflict of laws, public international law, adjudication

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Goldoni on political constitutionalism

Political Constitutionalism and the Value of Constitution Making

Marco Goldoni

University of Antwerp - Centre for Law and Cosmopolitan Values

March 7, 2012

The debate on political constitutionalism has completely neglected the dimension of constitution making. This is probably due to the reason that constitution making usually brings with it undesirable outcomes like entrenchment of rights or structure. These outcomes do not respect reasonable disagreement among citizens because they violate the only fair system for settling this disagreement: majority rule and equal vote. This article aims to show that political constitutionalists may regret the complete absence of any claim about constitution making. Either they are overlooking certain problems inherent to the electoral process that is supposed to tackle with disagreement or, even worse, they are downplaying the entrenching effect of ordinary political processes by ignoring the redemptive properties of constituent power. In both cases, their claims are actually undermining the political dimension of constitutionalism.
Keywords: Political constitutionalism, Constitution Making, Constituent Power

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Federalism as a Safeguard of the Separation of Powers

Jessica Bulman-Pozen

affiliation not provided to SSRN

Columbia Law Review, Vol. 112, No. 3, 2012

States frequently administer federal law, yet scholars have largely overlooked how the practice of cooperative federalism affects the balance of power across the branches of the federal government. This article explains how states check the federal executive in an era of expansive executive power and how they do so as champions of Congress, both relying on congressionally conferred authority and casting themselves as Congress’s faithful agents. By inviting the states to carry out federal law, Congress, whether purposefully or incidentally, counteracts the tendency of statutory ambiguity and broad delegations of authority to enhance federal executive power. When states disagree with the federal executive about how to administer the law, they force attention back to the underlying statute: Contending that their view is consistent with Congress’s purposes, states compel the federal executive to respond in kind. States may also reinvigorate horizontal checks by calling on the courts or Congress as allies. Cooperative federalism schemes are a more practical means of checking federal executive power than many existing proposals because such schemes do not fight problems commentators emphasize — a vast administrative state, broad delegations, and polarized political parties — but rather harness these realities to serve separation of powers objectives.
Number of Pages in PDF File: 46
Keywords: federalism, separation of powers, cooperative federalism, constitutional law, administrative law

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Elliott on the Draft Brighton Declaration, the Human Rights Act

The Draft Brighton Declaration, the Human Rights Act, and the Bill of Rights Debate

Mark Elliott

University of Cambridge - Faculty of Law

UK Constitutional Law Group Blog, 2012

The draft Brighton Declaration contains wide-ranging proposals for reform of the European Court of Human Rights and amendment of the European Convention on Human Rights. This paper considers the potential implications of the proposed reforms for the protection of human rights in UK law, with particular reference to the operation of the Human Rights Act 1998 and proposals for a UK Bill of Rights.
Number of Pages in PDF File: 4
Keywords: European convention on human rights, European court of human rights, human rights act 1998, UK Bill of Rights

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Alemanno on "Public Perception of Risks Under WTO Law"

Public Perception of Risks Under WTO Law: A Normative Perspective

Alberto Alemanno

HEC Paris - Law Department

RESEARCH HANDBOOK ON ENVIRONMENT, HEALTH, AND THE WTO, Geert van Calster, Denise Prévost, eds., Edward Elgar, UK, 2012

The exact role that public perception of risks, and more in general public opinion and consumer concerns, may, and ought to, play in risk decision-making is one of the most challenging, yet little explored, issues under WTO law. How does the WTO take into account public perceptions and ensuing concerns? What is the place that public perceptions of surrounding risks play in WTO law? How responsive to public perceptions can WTO Members be? Can public perceptions justify regulatory action under the WTO? In the affirmative: are there, as a matter of WTO law, limits upon the extent to which decision-makers may have regard to public perceptions when adopting food regulations? This chapter aims at addressing these questions by focusing especially on the extent to which WTO Member decision-makers are, or ought to be, legitimately entitled to take consumers’ perception of food safety risks into account under the SPS Agreement. Section II briefly sketches how the WTO governs food safety risks. After illustrating the scientific rationale underpinning the WTO/SPS regime of supervision of risk policies, section III explores whether this discipline allows, at least in principle, to accommodate public perceptions of food risks. Section IV systematizes the public perception-related case law developed by the WTO Dispute Settlement Bodies when reviewing the legality of food measures adopted by WTO Members and measures the extent to which these judicial bodies have been willing to take into account public concern. Section V identifies and discusses the consequences stemming from the SPS Agreement’s failure to respond to public perception. Finally, section VI takes up the difficult question of how the WTO should account public perception of food safety risks, by raising questions for further research. Although modest and largely speculative, the ideas put forward in this chapter nurture the ambition to initiate a new normative discourse around the issue of public perception of risk.
Number of Pages in PDF File: 19
Keywords: WTO, SPS agreement, risk, risk regulation, perception, consumers, BPA, nanotechnology

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Bonadio on Stance in L'Oreal v. eBay

Trade Marks in Online Marketplaces: The CJEU's Stance in L'Oreal v. eBay

Enrico Bonadio

City University London - The City Law School

Computer and Telecommunications Law Review, Vol. 18, No. 2, pp. 37-41, 2012

On July 12, 2011 the Court of Justice of the European Union (CJEU) gave its decision in L'Oréal v eBay (C-324/09). The CJEU dealt with inter alia the following issues: (1) the aspects related to the nature of the goods sold by eBay's users; (2) the liability of eBay in connection with the said sales; (3) the availability of the “hosting provider” defence for eBay; and (4) trade mark owners' right to obtain injunctions against operators of online marketplaces in order to stop future sales of infringing products through their websites. Even though the actual liability of eBay will have to be established by the UK referring court, the CJEU's conclusions can already be considered a success for proponents of stricter online trade mark enforcement.
Number of Pages in PDF File: 7

lunedì 5 marzo 2012

Summer School “Parliamentary Democracy in Europe” (July 2012), Rome, LUISS

LUISS School of Government

Rome, 16-20 July  2012

 Applications by 20 April 2012

Especially after the Treaty of Lisbon, the evolution of the European decision-making process towards the full enforcement of the principles of representative and participatory democracy requires to be studied in depth. This summer school untangles these issues and provides its participants with a map of the current state of the European Union democracy by scoping interactions among national legislative bodies, regional and local authorities and civil society when EU decisions are taken. Hence, students will be confronted with the multifaceted dimensions of the principle of subsidiarity within the European Union – both legal and political, linked to the problem of the multilevel government, the constitutional identities of Member States and the principle of proximity – and provided with the experiential knowledge and practical experience for understanding its enforcement challenges.
 The need to combine theory with practice in understanding the future of Europe’s democracy is reflected in the Faculty, which includes world-class academics and experienced officials from European, national and regional institutions.
This intensive summer course is organised in cooperation with Nova Universitas, a well-established Italian university consortium that, by bringing together knowledge and experience of academics and professionals from different fields, aims at generating opportunities for reviving the spirit of the early University in today’s modern society. The consortium is made up of the following universities: Bicocca University – Milan, Federico II University – Naples, Luiss Guido Carli University – Rome, Macerata University, Udine University, Catania University, Second University of Naples.

This summer school is also promoted under the auspices of the International Political Science Association (IPSA). Established in 1949 under the aegis of UNESCO, IPSA fosters the development of political science and public policy by supporting academic networks linking East and West, North and South. Its strategic aim is to create a global political science community allowing everybody to participate.

'Legal Issues surrounding the Eurozone Crisis' - Alicia Hinarejos: CELS Seminar

Dr Alicia Hinarejos of the University of Cambridge gave a lunchtime seminar entitled "Legal Issues surrounding the Eurozone Crisis" on Wednesday 8th February 2012 at the Faculty of Law as a guest of CELS (the Centre for European Legal Studies).

For more information see the CELS website at

'Legal Issues surrounding the Eurozone Crisis' - Alicia Hinarejos: CELS Seminar

sabato 3 marzo 2012

Bonadio and Santo on Preventive Filtering Systems

ISPs Cannot Be Ordered to Adopt General and Preventive Filtering Systems

Enrico Bonadio

City University London - The City Law School

Mauro Santo

M&R Europe, Intellectual Property Legal Advisors, Milan

Journal of Intellectual Property Law & Practice (2012)

In Scarlet Extended SA v SABAM, the ECJ held that EU law precludes the imposition of an injunction by a national court which imposes on internet service providers (ISPs) the adoption, at their expense and for an unlimited period, of a general and preventive filtering system with a view to preventing the illegal sharing of electronic files containing musical, cinematographic, or audiovisual works. In reaching its decision, the court stressed the need to strike a fair balance between copyright protection and the right of ISPs to conduct business freely as well as the right of their customers to protect personal data and receive or impart information. 

giovedì 1 marzo 2012

García Pelayo seminar: Prof. Takis Tridimas March 8 2012 (CEPC, Madrid, 11.30-13.30)

08 March  2012 (11:30 -  13:30)
“Precedent and the ECJ: A jurisprudence of doubt?”
Spekaer: Takis Tridimas (Queen Mary University, London)
Discussant: Sara Iglesias Sánchez (Universidad de Cádiz)
Venue: Centro de estudios politicos y constitucionales, Madrid 
for info:

'The Positioning of the Citizen in EU-Law. How Coherent is the Union’s Approach?' - Professor Linda Senden: CELS Seminar (streaming)

 Professor Linda Senden of the University of Tilburg gave a lunchtime seminar entitled "The Positioning of the Citizen in EU-Law. How Coherent is the Union’s Approach?" on Wednesday 12th October 2011 at the Faculty of Law as a guest of CELS (the Centre for European Legal Studies).