lunedì 29 dicembre 2014

STALS (Sant'Anna Legal Studies) Newsletter December 2014

Dear friends and colleagues,

we are pleased to announce the contents of this STALS newsletter.

STALS Events

January 7th, 2015

“Che cosa significa essere cittadini oggi?”

January 19th, 2015

“Il dibattito sull'interpretazione costituzionale negli Stati Uniti”

January 21st, 2015

“Dalla volonté générale alla QPC: la faticosa affermazione del controllo di costituzionalità in Francia”

January 22nd, 2015

“What are fiscal councils standing for? The 'new' fiscal independent institutions after the Euro crisis”

February 2nd, 2015

“La crisi della decisione”


G. Delledonne- G. Martinico- P. Poperlier (eds), Re-Exploring Subnational Constitutionalism. A Special Issue, Perspectives on Federalism, Vol. 6, Issue 2, 2014

SSSUP Events

Regional Law of the European Law Moot Court Competition to be held at the Scuola Superiore Sant'Anna, Pisa on 12-14 February 2015!
Prof. Giuseppe Martinico will be the master of the moot:

Call for Papers International Conference
‘Solidarity in Hard Times’
The conference is part of the Jean Monnet network MoreEU (“More Europe to overcome the crisis”) led by Scuola Superiore Sant'Anna (Pisa) and comprising think tanks and research institutions of five European countries (Notre Europe – Jacques Delors Institute, CEU San Pablo Madrid, University of Warsaw and Nova Law School of Lisbon).
‘Solidarity in Hard Times’ will take place at CEU San Pablo University (Madrid) on the 11th and 12th June 2015.

Merry Christmas and Happy New Year!

The Editors:

Cultural Obstacles to European Legal Integration: Applying Hofstede’s Cultural Dimensions Theory

Jasper Verstappen 

Maastricht University - Faculty of Law

October 2, 2014


This paper connects research conducted in the ambit of cultural sciences with legal practice. Culture and law are closely intertwined. This is a direct result of a common core: values are at the core of both law and culture. The way values are acquired and relate to law and culture guarantees both a consistency in legal systems as well as potential dangers.

European legal integration might be one of these dangers. Legal integration changes law, which may result in a discrepancy between the law on the one hand and values and culture on the other. This paper explores whether research conducted by cultural scientists can help us discover to what extent European legal integration is a viable option. It indicates how cultural differences are reflected in law and how research illustrates the size of the differences among cultures. There seems to be no such thing as 'unity in diversity.'
Number of Pages in PDF File: 18

Keywords: European integration; Legal integration; Cultural dimensions; Hofstede

Supremacy, Direct Effect, and Dairy Products in the Early History of European Law

William Phelan 

Trinity College (Dublin)


EUI working paper law 2014/11 

As the ECJ’s two most famous decisions, Van Gend en Loos and Costa v. ENEL, which established the direct effect and supremacy of European law, are commemorated on their fiftieth anniversaries, attention has also turned to another of the ECJ’s early decisions. On 13th November 1964, in Commission v. Luxembourg & Belgium, the Dairy Products case, the ECJ rejected the use of ‘self-help’ countermeasures in the Community legal order, and therefore marked the fundamental distinction between European law and general international law. Drawing on writings by Robert Lecourt, Paul Reuter, and Paul Kapteyn, this paper demonstrates that a direct causal link between these three cases was recognized by ECJ judges and legal scholars as early as 1965. The historical evidence presented here therefore supports previous comparative analysis that has argued that these three decisions – Van Gend, Costa, and Luxembourg & Belgium – should be acknowledged as profoundly inter-connected, in that national court application of European obligations should be understood as a substitute for the enforcement of European obligations through inter-state countermeasures.
Number of Pages in PDF File: 23

Keywords: History of European Law; European Law; Public International Law; Van Gend en Loos; Costa v ENEL; Commission v Luxembourg & Belgium

Application of the EU Charter by National Courts in Purely Domestic Cases

András Jakab 

Max Planck Institute for Comparative Public Law and International Law, Heidelberg

October 21, 2014

András Jakab / Dimitry Kochenov (eds), The Enforcement of EU Law and Values: Ensuring Member States’ Compliance (Oxford: Oxford University Press Forthcoming) 

The European Union is not just a WTO-type community based on common interests but it is also a community of values. According to Art. 2 TEU, these values are human dignity, freedom, democracy, equality, the rule of law and respect for human rights (including the rights of persons belonging to minorities). If the EU does not want to lose its credibility, it has a duty to defend all of these values to the greatest possible extent, at least within Europe, and especially within the European Union. The different options of how to enforce these values do not exclude, but rather reinforce each other. Most of these enforcement mechanisms depend on political discretion (isolation of the political party concerned within its European party family, Art. 7 TEU, treaty infringement procedures initiated by the Commission), which makes the use of these methods unreliable as guarantees of the abovementioned values. European politicians might (and actually often do) behave in an opportunistic manner, they are interested in smoothening the conflicts or even in pretending that there are no conflicts. European politicians might have a tendency to turn a blind eye against such problems when faced with a major crisis within the EU which seems to them to be of more importance than issues of constitutionalism in one of the Member States. We should of course expect European politicians to believe in the values of constitutionalism, but liberty is based on distrust towards politicians. A mechanism which leaves the enforcement of constitutionalism in the hands of politicians is a useful, but unreliable mechanism. Reliable mechanisms are judicially guaranteed mechanisms, where those affected can enforce these values. In this paper I am going to argue that the most promising way to conceptualise the values of European constitutionalism in a judicially enforceable manner is to widen the application of the EU Charter of Fundamental Rights via a creative re-interpretation of its Art. 51(1).
Number of Pages in PDF File: 11

Keywords: EU Charter of Fundamental Rights, basic values, enforcement mechanisms, scope of application, reverse Solange, EU citizenship, competence creep, leading cases, European Court of Justice, constitutionalism

What Role for a Chief Scientist in the European Union System of Scientific Advice?

Alberto Alemanno 

HEC Paris; NYU School of Law

October 28, 2014

European Journal of Risk Regulation, 3/2014 

At a time of increasing recognition worldwide of the role of chief science advisers as of critical importance in improving dialogue between science and policy, the European Union is currently considering – under the pressure of civil society organisations – whether to maintain or scrap this recently-created position. After contextualizing this debate within the broader efforts undertaken by the Barroso Commission to strengthen science in EU policymaking, this article discusses what role, if any, a chief scientist may play within the EU system of scientific advice. After denouncing the lack of a public debate about the merits of this post at the time of its creation, the article takes as a point of departure the criticisms made against this position and assesses them in the light of the mandate entrusted to the first EU Chief Scientist Advisor (CSA). It argues that the major point of disagreement on this post revolves around the question of whether the CSA, as it currently stands, helps or hinders the EU incorporating the best science into policy. After identifying the flaws of the actual mandate and the challenges faced by the first holder of the position, it argues that the burden of proof rests with the EU Commission to prove the merits, and more specifically, the rationale for having yet another source of scientific advice in the EU.
Note: This article opens the Special Issue of the European Journal of Risk Regulation devoted to the European Commission Chief Scientist Advisor.
Number of Pages in PDF File: 17

Keywords: Scientific Advice, Regulatory Policy, European Union, Precautionary Principle, Endocrine Disrupting Chemicals

The (Mis)Construction of the European Individual: Two Essays on Union Citizenship Law

Loïc Azoulai 

European University Institute - Department of Law (LAW)


EUI Department of Law Research Paper No. 2014/14 

European Union law has developed a concept of Union citizenship based on a right of exit from one’s country and a consequential right of entry in another Member State of the Union. ‘Empowering’ European citizens and enabling them to integrate into other Member States’ territories is its main purpose. If we seek to analyse further the concept of Union citizenship, it is almost inevitable that we inquire into the social background of this construction, the individual skills and resources it entails, the state structures and collective goods it affects. This is the puzzle with which the most acute commentators engage. Looked at this way, Union citizenship is about integration of Union citizens into national communities, financial solidarity with other Member States’ nationals and recognition of their personal identities. Ultimately it is about transnational integration and new forms of social justice within the Member States. There is, however, another way to engage with the concept. The focus on social integration is replaced by a somewhat more ambitious project: to empower the Union citizens to connect with Europe as a whole. This approach assumes that a proper regime of Union citizenship constitutes not only a right to free movement but a right to enjoy a common way of living. It would allow Union citizens to live, at least partially, in social and moral conditions which denote a far-reaching European society. If we take this project seriously, the problem, then, is as follows: how are we going to shape this project within a conceptual framework based on transnational integration? What does it mean practically to create ties between individuals who have been allowed to disaffiliate from their country of origin? To which ‘whole’ shall we refer that is not a structured state and yet does not boil down to a mere sphere of individual interests and particular social interactions?

The essays presented here suggest two ways to approach this problem. The first explores the concept of ‘the territory of the Union’ enshrined in the EU legal discourse as a possible venue for this shift in understanding the project of European citizenship. The second approach tells the story of an individual who feels strongly about being a ‘European’ with the right to be recognized everywhere in Europe without being part of any definite community. The first paper is an academic article which was commissioned by Dimitry Kochenov for a forthcoming edited volume on EU Citizenship and Federalism: The Role of Rights (CUP, 2015). The second is more of a narrative or a tale and is written in French. The first essay builds upon the second. The reason for bringing them together is to show that the literary form may contribute to an understanding of complex legal issues simply by showing a state of legal affairs in its most stylised form.

Supranational Organizations

Peter L. Lindseth 

University of Connecticut School of Law

September 14, 2014

Forthcoming in Ian Hurd, Ian Johnstone, and Jacob Katz Cogan, eds., Oxford Handbook of International Organizations (OUP, 2015) 

The key distinction between a supranational organization (SNO) and an international organization (IO) is the scope of autonomous regulatory power that the body may enjoy. Taking the European Union (EU) as the leading exemplar of the type, an SNO can exercise a whole range of rulemaking, adjudication, and enforcement powers with a comparatively high degree of independence from intergovernmental or national control, at least within the scope of authority delegated to the supranational level. In the literature on European legal integration over the last several decades, this degree of autonomous regulatory power has given rise to the notion that the EU has become something of an autonomous “constitutional” order in its own right. When applied to SNOs more generally, this becomes what we might call the “constitutional, not international” framework.

However, both SNOs and IOs can equally be seen — in fact, should better be seen — along a different dimension, what this contribution calls the “administrative, not constitutional” framework. From this perspective, delegation expresses “pre-commitment” of constitutional principals on the national level to a stream of policy choices to be implemented by denationalized agents enjoying some measure of autonomy, either de jure or de facto. The key difference between an SNO and IO is not in their purported “constitutionalization” but in the degree of autonomous regulatory discretion delegated to the denationalized agent. In legal terms, this analytical framework operates along a spectrum stretching from strongly legitimated “constitutional government” on the national level to diffuse and fragmented forms of “administrative governance” on either the sub-national, national, supranational, or international levels. In this regard, both SNOs and IOs, as well as national and sub-national agencies, can be seen as a further stage in the development of the diverse expressions of administrative governance beyond the political summit of the state (i.e., the “legislature” or the “executive” in their highest institutional forms).
Number of Pages in PDF File: 21

Keywords: supranational organizations, international organizations, European Union, delegation, principal-agent theory, delegation, pre-commitment

The Financial Crisis, the EU Institutional Order and Constitutional Responsibility

Paul P. Craig 

University of Oxford - Faculty of Law

October 31, 2014

F Fabbrini (ed), What Form of Government for the Eurozone (2015) 

The financial crisis is arguably the most significant challenge to the EU since the inception of the EEC. It has generated an array of political, legal and institutional responses the complexity of which is daunting in itself. The current paper considers these developments, and places them within a broader frame of institutional concerns, thereby facilitating thought about their impact on issues that have been debated more generally within the EU. The analysis has two principal themes, institutional design and constitutional responsibility for the choices thus made. These twin themes are considered in temporal perspective.

The discussion begins with the foundational institutional architecture for EU decision-making, and the debates that this has generated about democracy deficit. There has been a further resurgence of these concerns in the light of the crisis. While this is unsurprising, there is nonetheless a surprising lack of discourse as to responsibility for the status quo, and an equally surprising lack of serious discussion as to how we should think of the constitutional responsibility of Member States and not just the EU itself for the current institutional ordering. The paper develops two contrasting senses of constitutional responsibility and the implications of the choice between them for how we conceive of the EU and the role of Member States therein.

The analysis then shifts to the institutional architecture of the EMU laid down in the Maastricht Treaty, with the focus once again on the relationship between the institutional attribution of power, constitutional responsibility for the shaping of these provisions, and the way in which the schema contributed to the subsequent economic malaise. The relationship between this institutional schema and subsidiarity will also be explored.

The penultimate section of the paper considers the institutional schema that was used to deal with the financial crisis while it unfolded and the extent to which this can be properly portrayed in intergovernmental or supranational terms. The focus in the final section of the paper is on the measures that have been put in place thus far, and the institutional implications that this has had for the balance of power, both vertical and horizontal.
Number of Pages in PDF File: 30

Keywords: democratic deficit; constitutional responsibility; subsidiarity; financial crisis; economic and monetary union

Striving for Equality: Who 'Deserves' to Be a Union Citizen?

Eleanor Spaventa 

Law School, Durham University; Durham European Law Institute

June 4, 2014

In this paper I argue that the Court is showing a retreat from its ambitious citizenship vision, according to which Union citizenship should be the 'fundamental status' of Union citizens, hence even more important than their market status. This is particularly visible in recent cases in relation to own citizens and public policy derogations. I will then suggest that such a retreat is symptomatic of a broader phenomenon which was triggered by the Eurozone financial crisis and that sees the EU, its institutions and its Member States at a cross road, where a decision has to be taken as to the future direction of the integration project.
Number of Pages in PDF File: 12

Keywords: Union Citizenzhip, EU integration, Court of Justice

Human Rights and the Autonomy of EU Law: Pluralism or Integration?

Piet Eeckhout 

University College London - Faculty of Laws

April 6, 2013

Current Legal Problems, (2013), pp. 1–34 

The accession of the European Union to the European Convention on Human Rights raises questions about the autonomy of EU law, and about the future relationship between the EU Court of Justice and the European Court of Human Rights. The concept of autonomy appears to confirm prevailing theories about the relationships between legal systems in Europe, ie legal and constitutional pluralism. This study challenges those theories, and proposes an alternative paradigm: the integration of laws. Its central argument is that the EU system of human rights protection is increasingly characterized by its integration with the national constitutional laws of the Member States and with the ECHR. It argues that in integrated legal systems, conflicts between supreme adjudicators can be resolved from within the law. Each of the supreme/constitutional courts needs to recognize the limits of its jurisdiction, but is also sharing jurisdiction with the others. This principle of limited and shared jurisdiction is a tool for resolving conflicts, leading away from a conception of a deep conflict of supreme judicial authority. Integrated legal systems are governed by a law of integration, which is there for all to see. The article touches upon some of the elements of that law of integration. It goes on to investigate the scope for EU law autonomy — which is in essence concerned with safeguarding the jurisdiction of the Court of Justice — in connection with accession to the ECHR. It argues that the principle of limited and shared jurisdiction should govern the relationship between the two European courts, and that it is capable of ensuring that the European Court of Human Rights does not decide matters of EU competence, or EU law generally. But the principle also means that the Court of Justice will be bound by judgments of the European Court of Human Rights.
Number of Pages in PDF File: 34

Keywords: European Union, human rights, ECHR, legal pluralism, integration, autonomy EU law

Coherence (and Consistency) or Organized Hypocrisy? Religious Freedom in the Law of the European Union

Pasquale Annicchino 

European University Institute - Robert Schuman Centre for Advanced Studies (RSCAS)

November 10, 2014

M.C. Foblets, K. Alidadi, J.S. Nielsen, Z. Yanasmayan (ed.), Belief, Law and Politics. What Future for a Secular Europe?, Ashgate, December 2014 (Forthcoming) 

In recent years, many research projects have investigated the relationship between law and religion, especially in the United States and Europe. Among them, the RELIGARE (Religious Diversity and Secular Models in Europe. Innovative Approaches to Law and Policy) project has deliberately chosen to focus on a number of definite issues representing the core of these relationships: the labor market, public space, the family, and State support to religious groups. The RELIGARE final report has highlighted the importance of two key principles: ‘inclusive state neutrality’ and ‘justice as even-handedness’. The purpose of this contribution is to investigate and assess the coherence (and consistency) of EU action in the field by comparing the action of EU institutions internally with their external relations, taking into consideration the findings of the RELIGARE report.
Number of Pages in PDF File: 15

Keywords: Religious Feedom; European Union; Lisbon Treaty

The Dynamics of Transnational Counter-Terrorism Law: Towards a Methodology, Map, and Critique

Cian C. Murphy 

King's College London – The Dickson Poon School of Law; Center for Transnational Legal Studies

November 14, 2014

Forthcoming in Jackson and Fabbrini, eds, Constitutionalism Across Borders in the Struggle Against Terrorism, Edward Elgar Publishers, 2015.
King's College London Law School Research Paper No. 2014-42 

One of the lesser-explored legal questions after September 11 is the impact of the transnationalisation of counter-terrorism law on the rule of law and those subject to it. Transnationalisation is evident in several fields of law and in particular in counter-terrorist finance law. This law involves powers for states to monitor financial flows, to freeze the assets of those under suspicion, and to impose penalties on individuals who fund or otherwise support such individuals, and on financial institutions that facilitate them. Despite transnationalisation being a common trope in the legal literature it has not been subject to extensive description or critique.

This essay addresses this shortcoming by setting out first steps towards a methodology, a map of the dynamics of transnational counter-terrorist finance law, and a critique of that law. The essay first explains transnational law as a methodological approach to law under globalization. It then goes on to map six dynamics of transnationalisation: global governance, regional government, bi-lateral agreements, legal diffusion, extra-territorialisation and private rule-making and enforcement. The essay next introduces, in brief, a critique of transnational counter-terrorist finance law from a rule of law perspective, and concludes with some thoughts on future research challenges.
Number of Pages in PDF File: 17

Keywords: transnational law, counter-terrorism, globalisation, counter-terrorist finance, methodology

Just a Matter of Laugh? Why the CJEU Decision in Deckmyn is Broader than Parody

Eleonora Rosati 

University of Southampton - School of Law

November 18, 2014

Common Market Law Review, 2015, Forthcoming 

On 3 September 2014 the Grand Chamber of the Court of Justice of the European Union (‘CJEU’) issued its decision in Case C-201/13 Johan Deckmyn and Another v Helena Vandersteen and Others (‘Deckmyn’). This was a reference for a preliminary ruling from the Brussels court of appeal, seeking clarification as to the notion of parody under Article 5(3)(k) of Directive 2001/29 (the ‘InfoSoc Directive’). This provision allows Member States to introduce into their own copyright laws an exception or limitation to the rights of reproduction, communication and making available to the public, and/or distribution, for the purpose of caricature, parody or pastiche. It does so without providing a definition of these concepts.

Having clarified that ‘parody’ is an autonomous concept of EU law, in its ruling the CJEU held that this must be understood according to its usual meaning in everyday language. A parody has just two essential characteristics: first, to evoke an existing work while being noticeably different from it and, secondly, constitute an expression of humour or mockery. The CJEU also stated that the person who owns the copyright to a work has a legitimate interest in ensuring that this is not associated with the message conveyed by its parody if it is discriminatory/racist.

This decision is topical to EU debate on copyright exceptions and limitations in Article 5 of the InfoSoc Directive, as well discourse around activism – rather than mere activity – of the CJEU in this area of the law. Thus, the relevance of the Deckmyn decision is not confined to the sole topic of parody. Similarly to what has happened in relation to other aspects of copyright, e.g. the originality requirement and the notion of work – also in this case the Court might have pursued some sort of de facto harmonization, notably with regard to moral rights.

The present contribution is structured as follows. The first part explains the background to this reference, and summarizes the Opinion of Advocate General (‘AG’) Cruz Villalón on 22 May 2014 and the subsequent findings of the CJEU. The second part discusses specific aspects of the Opinion and the ruling. First, the practical implications of the decision are reviewed. Secondly, the systematic impact of the Deckmyn case is addressed, including the actual harmonizing force of Article 5 of the InfoSoc Directive, as well as whether this ruling has introduced trade marks concepts into EU copyright (notably tarnishment), or even harmonized moral rights.
Number of Pages in PDF File: 14

Keywords: copyright, parody, InfoSoc Directive, Deckmyn, exceptions and limitations, Article 5 InfoSoc Directive, moral rights, tarnishment, legitimate interest, copyright and trade mark law, CJEU, EU law, EU copyright

The Application of the EU Charter of Fundamental Rights: Neither Reckless nor Timid?​

Christopher Vajda 

Court of Justice of the European Union

November 18, 2014

Edinburgh School of Law Research Paper No. 2014/47
Europa Working Paper No 2014/09 

This paper was delivered as the 2013-2014 Annual Mitchell Lecture of the Europa Institute (29th September 2014). It starts with an overview of the origins of human rights law in the European Community, and then focuses on the impact of the EU Charter of Fundamental Rights, and some of the issues that it has thrown up.
Number of Pages in PDF File: 14

Keywords: human rights, EU law, EU Charter of Fundamental Rights

The Use of Article 31(3)(C) of the VCLT in the Case Law of the ECTHR: An Effective Anti-Fragmentation Tool or a Selective Loophole for the Reinforcement of Human Rights Teleology? Between Evolution and Systemic Integration

Vassilis P. Tzevelekos 


January 1, 2010

Michigan Journal of International Law, Vol. 31, 2010 

Although the ECtHR has been widely accused of being one of the specialized international courts that most frequently fragments international law, it also appears, at the same time, to apply Article 31(3)(c) VCLT more than any other. Recently, the ILC pointed to this Article and suggested that it introduces an autonomous method of interpretation, namely that of systemic integration, which is particularly useful against the normative fragmentation of international law. Yet the history of Article 31(3)(c) suggests that, outside systemic integration, this very same VCLT provision may also accommodate the dynamic method of interpretation. The main questions raised by this study concern the effectiveness of Article 31(3)(c) VCLT as an anti-fragmentation tool and the relationship between systemic integration and the dynamic method of interpretation. The reason for choosing the regime of the ECHR to test the function of Article 31(3)(c) has to do with its ‘special’ nature, as an international treaty that operates as a ‘quasi-constitution’ for the establishing of a regional public order. Given these characteristics, the test for Article 31(3)(c) is a demanding one.

The case-law of the ECtHR that gives effect to Article 31(3)(c) is divided into three main categories, corresponding to the situations in which: i. the norms of the ECHR are complementary to the ‘third’, extraneous, relevant norms of international law which, by the means of Article 31(3)(c), are integrated into the analysis of the Court; ii. the norms of the Convention come into conflict with other norms of international law; iii. for the Convention to produce its results, it is a prerequisite that the ECtHR resorts to general international law to provide answers to any preliminary questions that fall outside its subject-matter. Next to these three categories, the paper also examines the sui generis role that the ECtHR has reserved for Article 31(3)(c) in the case of institutional fragmentation.

The analysis demonstrates that when, first, the relevant rules of international law are complementary to the ECHR, these can very effectively be ‘absorbed’ by the latter, having an expanding effect on the semantic field of its substantive norms. In this case, systemic integration works in substance as a complement to the ‘special’ object and purpose of the Convention and converges with the dynamic method of interpretation. The effect of Article 31(3)(c) moves, in principle, towards the direction of reinforcing the Convention’s ‘special’ telos and, thus, rather than a proper systemic integration, it promotes a ‘pseudo’ one. If, on the contrary, there is a conflict between the relevant norms of international law and the ECHR, the systemic integration method of interpretation comes into play ipso facto. Its function cannot (and should not), however, extend beyond a simple ‘contact’ between the conflicting norms. Beyond this, there is no room for it to effectively promote the unity of international law. Rather, the systemic integration resigns this role in favour of the classic and well-known techniques that are usually used in the case of a conflict of norms. In the third case, the use of systemic integration has mainly been proven to facilitate the Court’s effort to legitimately give effect to the Convention’s telos. However, as the case-law of the Court clearly indicates, although systemic integration has indeed been proven to function effectively, no definitive answer may be given as to the effects that it produces, since these are always dependent on the will of the Court. Hence, although Article 31(3)(c) may often be of extreme help for the Convention to become effective, the very same Article may equally well be used by the Court in order for it to self-restraint its jurisdiction. Finally, as far the case of institutional fragmentation is concerned, it is difficult to draw conclusions on the basis of the relevant case-law. The impression given is that Article 31(3)(c) is used for purposes falling outside positive international law. What, however, is evident is that the effectiveness of systemic integration in the case of institutional fragmentation may well be limited by a number of imponderable external factors, such as the political dimensions of a case, and the balance of power between the various fora.

The more general impression given by the case-law of the ECtHR is that the latter enjoys ample selectiveness in its use of Article 31(3)(c). The systemic integration technique can only be as effective as the ECtHR wants it to be. In the end, the Court is the only one to decide how ‘special’ or integrated into the systemic ‘orthodoxy’ it wants its regime to be. Article 31(3)(c) may allow judicial activism no more or less than any other method of interpretation which promotes the object and purpose of a ‘special’ international treaty. This final remark also explains why, in the case of complementarity between the ECHR and the relevant norms of international law, the systemic integration and the dynamic techniques, do converge. However, the dynamic method of interpretation extends beyond that of systemic integration. This is the case especially when the normative sources of inspiration for the Judge of Strasbourg derive from orders other than the international one.
Number of Pages in PDF File: 70

Keywords: systemic integration. fragmentation of international law, Article 31(3)© VCLT, Vienna Convention on the Law of Treaties, evolutive interpretation, dynamic interpretation, ECHR, ECtHR

When Elephants Fight it is the Grass that Suffers: ‘Hegemonic Struggle’ in Europe and Its Side-Effects for International Law: Dynamic Systemic Integration, Ad Hoc Normative Hierarchy and Responsibility of Member States Linked to the Conduct of International Organisations

Vassilis P. Tzevelekos 


March 1, 2014

in K. Dzehtsiarou, T. Konstantinides, T. Lock, N. O’Meara (eds.), Human Rights Law in Europe: The Influence, Overlaps and Contradictions of the EU and the ECHR, Routledge, 2014, pp. 9‐34 

The paper offers an alternative narrative about the interplay between the ECtHR and the CJEU. It argues that Bosphorus cannot serve as a role-model for understanding the interrelationship between these two quasi-Constitutional Courts, the interaction of which is inherently marked by implicit competition. Although other motives may exist as well, the reason why the ECtHR in Bosphorus felt it necessary to self-restrain its judicial powers was not so much its esteem towards the CJEU, but the impact judicial review would have on the UNSC, the Resolutions of which the EU was in fact implementing. A second(ary) goal of the paper is to ‘zoom-out’ from the European-centric vision of the CJEU-ECtHR dipole and outline the broader environment within which their common tale is situated. In that respect, the paper discusses systemic integration and legal pluralism, (indirect) review of the acts of the UNSC from the perspective of the hierarchy of rules and responsibility of States in cases where their membership of an organisation is linked to a situation resulting in the circumvention of the ECHR.
Number of Pages in PDF File: 23

Keywords: Bosphorus presumption, test of equivalent protection, fragmentation, systemic integration, aRTICLE 31(3)© VCLT, review of the acts of the Security Council, responsibility of states for the conduct of international organisations, ARIO, Kadi

The EU Accession to the ECHR Ante Portas: Questions Raised by Europe's New Human Rights Architecture

Vasiliki Kosta 

European University Institute - Department of Law (LAW)

Nikos Skoutaris 

University of East Anglia, School of Law

Vassilis P. Tzevelekos 


July 1, 2014

in The EU Accession to the ECHR, V. Kosta, N. Skoutaris, V. Tzevelekos (eds.), Hart, 2014 

This is the introductory chapter of an edited volume on the question of the EU Accession to the ECHR. The paper gives an overview of the normative environment surrounding the accession of the EU to the ECHR, and explains the aims, structure and limits of the book. It argues that the accession will represent a major change in the relationship between two organisations that have co-operated closely in the past, though the ECHR has exercised only an indirect constitutional control over the EU legal order through scrutiny of EU Member States. The accession of the EU to the ECHR is expected to put an end to the informal dialogue, and allegedly also competition between the two regimes in Europe and to establish formal (both normative and institutional) hierarchies. In this new era, some old problems will be solved and new ones will appear. Beyond the co-respondent mechanism and CJEU's prior involvement, questions of autonomy and independence, of attribution and allocation of responsibility, of cooperation, and legal pluralism will arise, with consequences for the protection of human rights in Europe.
Number of Pages in PDF File: 14

Keywords: EU Accession to ECHR, ARIO, legal pluralism, judicial dialogue, multi-level protection, co-respondent mechanism, prior involvement, EU's autonomy

Talking Now? Preliminary Rulings in and from the New Member States

Michal Bobek 

College of Europe; University of Oxford - Institute of European and Comparative Law

December 1, 2014

21 (4) Maastricht Journal of European and Comparative Law 781 (2014) 

This short contribution reflects on the first decade of the preliminary rulings procedure in the new Member States. It looks at three layers in turn. First, the (crude) statistics are reproduced. Second, several notes are attached to the numbers, assessing more closely what lies within and beneath them. Third, the deeper, structural level is briefly touched upon, by zooming in on one question: are there any specific elements or characteristics that the new Member States have brought into the preliminary ruling procedure?
Number of Pages in PDF File: 9

Keywords: Preliminary rulings; new EU Member States; Court of Justice; statistics; motives for submitting a request for a preliminary ruling; judicial hierarchy

Growing Apart Together: Social Solidarity and Citizenship in Europe

Dimitry Kochenov 

University of Groningen - Faculty of Law

December 3, 2014

Forthcoming in F Pennings and G Vonk (eds) Research Handbook on European Social Security Law (Edward Elgar 2015). 

To provide a glimpse of the contemporary state of play in citizenship’s interaction with social solidarity in Europe, this contribution – following a brief introduction to citizenship’s arbitrary and exclusionary nature and the general dynamics in the development of the notion over the last decades – explores three problematic assumptions behind the popular approaches to the interaction between citizenship and social solidarity. Three points it makes are simple.

1. Citizenship is not necessarily directly connected to social solidarity and social rights.
2. The state is not a necessary arena of social solidarity.
3. Social rights do not require an elusive demos or national unity as a necessary precondition.

The EU’s contribution to the complex picture of the framing of social solidarity in Europe is touched upon throughout this contribution. The conclusion is that the relationship between social solidarity and citizenship in the EU follows the global trend in full, rather than breaking it.
Number of Pages in PDF File: 22

Keywords: CItizenship, EU Law, Social rigths, solidarity, nationality, demos,

Going Home? ‘European’ Citizenship Practice Twenty Years after

Antje Wiener 

University of Hamburg

December 4, 2014

in: Dimitry Kochenov, ed, 2015, EU Citizenship and Federalism: The Role of Rights, Cambridge: Cambridge University Press, Forthcoming 

Where do European citizens eventually turn to go home at the end of the day? Does it matter whether they feel that they belong, or whether they actually know what is ‘theirs’? This chapter argues that there is a considerable distance to be covered between formally stipulating citizenship on the one hand, and practically ‘owning’ citizenship, on the other. As the literature on norms research has demonstrated, the formal validity of a norm offers little guidance as to its social recognition, let alone its cultural validation. Yet, it is the latter normative segments, which matter with regard to whether or not a norm is accepted, understood and hence complied with. The contestations in the proceedings of the European Court of Justice’s ruling in the Rottmann case demonstrate quite clearly that their quite detailed and extensive elaborations about the European normative order with its fundamental norms and standardised procedures, they remain largely confined to a legal environment. Meanwhile, the larger question about where European citizens are to turn at the end of the day, and under which conditions, is not as straightforward as the literature on citizenship in the context of modern state-building would suggest.

As citizenship practice unfolds, stateness – defined as the sovereign competence to initiate and control constitutionally defined borders and comply with sovereign obligations – is challenged. Given the widening gap between two distinctly different perceptions of ‘European’ citizenship as constitutive for a new normative order of the Euro-polity, on the one hand, and as an apparently rather elusive concept that comes mainly down to carrying a burgundy coloured passport, on the other, this chapter addresses the effect of these changes on the re-constitution of normativity as the constitutional ‘home’ of European citizens. It is argued that at a time – some twenty years after Maastricht – when the fragmentation of citizenship rights has not only generated confusion among citizens but also with lawyers, the onus is on social scientists to bring the theoretical tools to bear which have been developed in order to generate a better understanding of citizenship and state-building. To that end, the following recalls the continuity of citizenship practice with reference to the two packages of ‘special rights’ and ‘passport policy’ and how they have contributed to the social construction of normativity.
Number of Pages in PDF File: 25

Keywords: European citizenship, norms, citizenship practice, rights, acquis communautaire, special rights, passport, TH Marshall