venerdì 26 agosto 2016

Upholding Judicial Supremacy in India: The NJAC Judgment in Comparative Perspective

Rehan Abeyratne 
Jindal Global Law School

August 22, 2016

George Washington International Law Review (Forthcoming) 

On October 16, 2015, the Supreme Court of India issued a landmark judgment holding the National Judicial Appointments Commission (NJAC) unconstitutional. This Article argues that the judgment is flawed in two ways. First, it held that the Indian Constitution requires sitting judges to have the final word on judicial appointments. Neither the constitutional text nor the Constituent Assembly Debates provides any support for this conclusion. Second, the judgment does not explain how this sort of judicial primacy promotes or secures judicial independence. A comparative analysis shows that no other major constitutional democracy gives judges the final word on judicial appointments. So why is India an outlier? I argue that peculiar political and historical circumstances required the Indian judiciary to assume an outsized role. The NJAC Judgment is, therefore, best understood in institutional terms: it represents the judiciary’s reluctance to cede its supremacy to the political branches of government.

Number of Pages in PDF File: 40

Keywords: Judicial Appointments, Judicial Independence, Indian Constitution, Comparative Constitutional Law

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giovedì 25 agosto 2016

Paradise Lost: Can the European Union Expel Countries from the Eurozone?

Jens Dammann 
University of Texas at Austin - School of Law

August 26, 2015

Vanderbilt Journal of Transnational Law, Vol. 47, No. 2, 2016 

There was a time, not too long ago, when the introduction of the euro was hailed as a tremendous success. Yet the Eurozone now faces an existential crisis. A number of member states have, since 2008, been prevented from defaulting on their sovereign debt only by massive bailouts. Greece has teetered on the verge of insolvency for years even despite repeated such measures.

Many observers now believe that Greece should not stay in the European Union but leave the eurozone, a scenario often referred to as the “Grexit.” This would allow Greece to devalue its currency and thereby render its economy more competitive. But just as crucially, from the perspective of Greece’s sharpest critics, a Grexit would rid the Eurozone of a member state that may no longer be willing to abide by the Eurozone’s austerity-oriented economic policies, which aim at limiting budget deficits and government debt even in times of economic distress. The current Greek government is adamantly opposed to leaving the Eurozone, but this has not put an end to the debate. Rather, a growing chorus of politicians and pundits now argue that Greece should be expelled from the Eurozone.

Of course, this demand raises a fundamental legal question: Is it possible — and should it be — to terminate a country’s membership in the Eurozone without that country’s consent? This Article argues that in narrowly defined circumstances, a right to expel countries from the Eurozone not only is desirable as a matter of legal policy but also deserves recognition as a matter of black letter law. However, this Article also shows that such an expulsion has to remain an ultima ratio. As of now, Greece does not even come close to satisfying its conditions.

Number of Pages in PDF File: 55

Keywords: Grexit, Eurozone, Expulsion, EU, Euro

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How Brexit Will Happen: A Brief Primer on EU Law and Constitutional Law Questions Raised by Brexit

Holger P. Hestermeyer 
King's College London - The Dickson Poon School of Law; A Dickson Poon Transnational Law Institute

August 17, 2016

Journal of International Arbitration 2016 

In a referendum held in the UK on 23 June 2016, 51.9% of the participating electorate voted to leave the European Union. The number of legal questions raised by the referendum are breathtaking. This article tackles two of them: it discusses questions of UK constitutional law involved in deciding to leave the Union, namely the role of referenda, sovereignty of Parliament, the scope of the royal prerogative and devolution, as well as the basic EU law rules concerning the withdrawal process as contained in Art. 50 of the TEU. The latter involves issues such as the start of the negotiations, their content, length, how they will be conducted and whether the UK can conclude trade agreements during the Art. 50 negotiations process.

Number of Pages in PDF File: 22

Keywords: Brexit, sovereignty, sovereignty of Parliament, royal prerogative, trade, common commercial policy, Commission, Council, WTO, EFTA

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Making Effective Use of Article 260 TFEU

Pål Wennerås 
Office of the Attorney General, Norway

August 10, 2016

Forthcoming in A. Jakab and D. Kochenov, The Enforcement of EU law and Values (OUP 2017) 

Much has been written on Article 260 TFEU, and the refrain continues along the lines that it is a potentially effective instrument for securing compliance with EU law which has yet to materialise. Some have started to question whether pecuniary sanctions can ever be an effective tool and have eyed the political procedure in Article 7 TEU with a glimmer of hope. But since money talks and the conditions in Article 7 TEU are onerous, it seems premature to discard the value of Article 260 TFEU just yet. But what then is the problem and is it possible to do anything about it? That is the topic of this chapter, which examines the design of the system and its application by the Commission and the Court.

Number of Pages in PDF File: 20

Keywords: Article 258 TFEU, Article 260 TFEU, infringement proceedings, penalty payment, lump sum, sanctions, enforcement

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Migrant Union Citizens and Social Assistance: Trying to Be Reasonable About Self-Sufficiency

Gareth T. Davies 
Free University of Amsterdam - Faculty of Law

August 17, 2016

College of Europe Research Papers in Law No. 2/2016 

The case law of the Court of Justice on social assistance for migrant Union citizens is often regarded as having entered a more restrictive phase in recent years as cases such as Dano, Alimanovic and Commission v UK (residence tests) seem to limit avenues of solidarity that were opened up by the classic earlier judgments, such as Martinez-Sala and Grzelczyk. This paper argues that such an analysis does little justice to either the newer or the older cases, and misses the more important dynamics of the case law, which are not about the slogans as much as the clarity and enforcability of the rules in question.

In fact, the earlier cases are far more restrictive than commonly assumed, providing ample opportunities for Member States to exclude most migrants from social assistance and deny them rights of residence. The more recent cases do no more than repeat these restrictive formulas, but in different factual contexts. What this shows us is that Member States and their judges are slowly learning the lessons of the Court and internalising its rules, so that they less often fight hopeless cases and are more in control of outcomes.

This national response is central to understanding what the law is and why any of it matters, for the impact of the social assistance case law is mediated to a great extent by the capacity of national institutions to apply it effectively. That has been made difficult by certain of its distinctive features: not just ambiguous norms, but the inter-relationship of residence and social assistance rights, which poses an institutional challenge in states where these are often applied by different arms of government. Either unjustified exclusion, or what Blauberger and Heindlmaier have referred to as ''accidental generosity'' may be the result.

This leads to law which poorly implements the prevailing political compromise: that migrants should be free to move and work, and enjoy equality, but only so long as they are not a burden on their host states. Yet reform is hindered by the vocabulary of concepts employed. Most notably, the idea of enjoying sufficient resources not to be a burden on social assistance is highly ambiguous in modern welfare states, where public subsidies are almost ubiquitous and assistance with healthcare, housing, education, and other core human needs is extended not just to the poor but to large parts of society. When this law was first framed, a worker could be conceived of as a self-sufficient contributor to public finances, just like a person of independent means, and these could be contrasted with the recipient of public support, who had fallen into the basic social safety net. However, those clear distinctions between the self-sufficient and others no longer work without far more explanatory and definitional work than EU law has yet done.

The paper considers the core cases and concepts of this field of law and their problems, and puts them in the context of the pre- and post-Brexit debates about intra-EU migration.

Number of Pages in PDF File: 31

Keywords: Union citizenship, social assistance, migration, EU law, migrant workers, workseekers

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The Dual Meaning of Evidence-Based Judicial Review of Legislation

Ittai Bar-Siman-Tov 
Bar-Ilan University Law Faculty

August 3, 2016

4(3) The Theory and Practice of Legislation Forthcoming 

This article contributes to the nascent debate about the globally emerging, yet largely undefined, phenomenon of evidence-based judicial review of legislation, by offering a novel conceptualization of evidence-based judicial review.

It argues that evidence-based judicial review can have two related, but very different, meanings: one in which the judicial decision determining constitutionality of legislation is a product of independent judicial evidence-based decision-making; and the other in which the judicial decision on constitutionality of legislation focuses on evidence about the question of whether the legislation was a product of legislative evidence-based decision-making.

The article then employs this novel insight about the overlooked dual meaning of evidence-based judicial review to shed new light on some of the major debates about this phenomenon, such as: whether it should be understood as part of substantive or procedural judicial review; the relationship between evidence-based judicial review and evidence-based lawmaking; and the role of legislative findings in constitutional adjudication.

Number of Pages in PDF File: 23

Keywords: Evidence-Based Judicial Review, Evidence-Based Lawmaking, Rational Lawmaking, Due Process of Lawmaking, Legislative Findings, Congressional Findings, Substantive Judicial Review, Procedural Judicial Review, Semiprocedural Judicial Review

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Europolity. Continuity and Change in European Governance (Vol. 10, No. 1)

Sorin Ducaru 
North Atlantic Treaty Organization (NATO) - Office for the Assistant Secretary General - Emerging Security Challenges

Robert Lupitu 

Antonio Momoc 
University of Bucharest

Antonio Munoz Aunion 
Universidad Autónoma de Chile

Alexandra Popescu 
The National Institute for Intelligence Studies

Sabina Strimbovschi 

Nadiia Bureiko 
University of St. Gallen

Luminita Bogdan 
National University of Political Studies and Public Administration (NSPSPA)


Europolity. Continuity and Change in European Governance (Vol. 10, No. 1). 2016 

Sorin Dumitru DUCARU
Abstract. The technological development and the instant communication possibilities advanced not only economic and social developments, but also evolving threats from those who exploit the vulnerabilities of communication and information systems. The cyber threat landscape points to a significant increase of the frequency, intensity, duration and sophistication of cyber-attacks. One of the new and concerning trends is the use of cyber capabilities in relation with military of hybrid operations – the so-called cyber dimension of hybrid warfare. NATO’s strategy on countering hybrid warfare is based on the triad: prepare-deter-defend, which also applies to cyber. Nations represent the first line of defence in countering hybrid strategies. International cooperation is also a key factor in this sense. It is in this context that NATO’s response to cyber-attacks in the context of hybrid warfare must be further refined.
Keywords. Cyber defence; information warfare; hybrid warfare; early warning; resilience; risk management

Abstract. The paper aims to review the new political landscape in Poland, a country that has the potential to be a major game changer within the European Union and the North Atlantic Alliance. When the role model of Eastern European countries and former communists satellites becomes a political surface for a tyranny of the majority, a polarized approach used by Law and Justice Party in order to secure and boost its power, another uncertainty falls in Europe. In its sections, the paper focuses on the political environment that has led to Law and Justice Party’s political win, the vital and undesired threat that quick and rough political measures pose to the rule of law system and the ruling party political view that aims to secure and boost its power in the perils from its proximity, by adopting a double standard policy, one distant from EU’s values and another close to NATO’s core interests. Additionally, the paper examines thoughtfully the double standard issue of Warsaw’s new cabinet in a European Union that hardly copes with different sorts of crisis and an unforeseen security landscape that with a NATO troops deployment in Eastern Europe will establish, if not a new Cold War mind set, at least a frosty view from both Russia and the West. By playing a negative game changer role and choosing to consider a prevalence of self-interests among its European and Euro-Atlantic participation, Poland finds itself in a race that may disrupt democracy for security causes, although they are not mutually excluded.
Keywords. Euro-Atlantic security; Euro-scepticism; European Union; NATO; Poland; rule of law

Antonio MOMOC
Abstract. The public perception in Romania regarding the Syrian refugees has dramatically changed within a few months in the sense of rejecting the idea of receiving immigrants on Romanian territory. In August 2015 the polls indicated that Romanians were in favour of accepting the immigrants, while in September 2015 more than half of the respondents declared they were against receiving refugees. What kind of narrative was used by the Romanian politicians to cover the “refugee/migrant crisis”? This study tried to establish the ways in which social media have been changing Romanian perception related to refugees, asylum seekers and migrants. In this research, we have monitored discourses of xenophobia and poisonings that occurred in the Romanian social media. A few Romanian politicians have aggravated the immigrant related debate via their personal social media accounts. The former Romanian President, Traian Băsescu, was one of them. As the EU public debates on whether the refugees’ quotas should be mandatory or volunteer have scaled up, the people's perception was altered immediately after the discourse about rejecting the refugees has intensified in the online environment.
Keywords. Online poisonings; Political communication; Refugees’ crisis

Abstract. The draft European Constitution crafted in the interval between the terrorist attacks of 9/11 in New York and those taken place in Moscow, Madrid, was concluded shortly before the attacks on public transportation in London in 2005, including what is called a solidarity clause (art. 42) and its implementation modalities (art. III-329), however after various vicissitudes, it was never ratified by the Member States and felt into oblivion; while it remained a driving force in the subsequent Lisbon Treaty in force since 2009 as, section 222 in the fifth part under Title VII.
Keywords. Citizens; Democracy; European fortress; European governance; Interference; Human security risk – assessment; Rule of law; Solidarity

Alexandra POPESCU
Abstract. Considered by some to be an instrument used by the Russian Federation against the US policies and strategies, the current refugee crisis is a social and political phenomenon, caused by the emergence of the conflicts from North Africa and the Middle East, and has been one of the most important issues of 2015. Although the entire process dates back to 2011, when the Syrian civil war started, its effects and consequences were felt in Europe with the beginning of the last year, when almost 400000 people risked their lives to leave their countries and go to Europe, in search of a safe and secure environment. Due to the fact that EU member states have positioned themselves differently towards this problem, the European Union is now regarded as an international organization that could not handle this kind of issue, failing to provide efficient solutions. The migrant issue has been addressed to at six summits to the date, where the EU leaders tried to find proper measures to adopt, although these proved to be either inadequate or slow. Thus, this paper aims to explain how the refugee crisis has affected the cohesion of the EU, presenting the way the Union has managed the migrant flux. In the end, the 2015 brought one single question concerning this issue: will the refugee crisis cause the break-up of the European Union?
Keywords. Cohesion issues; European Union; Measures; Refugee crisis; Summit; Syrian civil war

Abstract. Following a study visit in Baku, the author exposes in this paper some of the research results, being also embedded the opinions of Azerbaijanis experts that were interviewed. The aim is to perform an analysis on the evolution of Azerbaijani state interpreted both from the European and Azerbaijani perspective. On the one hand, it is approached the development of the Republic of Azerbaijan after the collapse of Soviet Union and the way the Nagorno-Karabakh unsolved conflict has influenced Azerbaijan’s foreign policy. On the other hand, it is researched the manner in which the European Union – Azerbaijan relations have evolved since 1991, but especially once the Eastern Partnership has been created. Considering the fundamental purpose of the European Neighborhood Union, to ensure security, stability and prosperity in the EU’s vicinity, it is analyzed the impact of two multilateral platforms within the Eastern Partnership (Democracy, good governance and stability, and Energy security) was achieved on the Republic of Azerbaijan. At the same time, it is investigated whether the European Union should accept an authoritarian leadership, as a legitimate actor and partner on the international stage just because the EU has a strategic interest to diversify its energy sources and, eventually, reduce the dependence on Russian Federation, or it should change its approach and adopt a firmer stance. Last but not least, are revealed the geopolitical frictions in the South Caucasus region and the reasons for which Azerbaijan tries to maintain its status as a sovereign and independent country, avoiding to ally with any geopolitical bloc, but opting for economic, energy and military cooperation with both sides.
Keywords. Azerbaijan; Democracy; Energy security; European Union; Nagorno-Karabakh; Russia

BOOK REVIEW. Tina Freyburg, Sandra Lavenex, Frank Schimmelfennig, Tatiana Skripka and Anne Wetzel. 2015. Democracy Promotion by Functional Cooperation. The European Union and its Neighbourhood. Challenges to Democracy in the 21st Century. Palgrave Macmillan, UK, 291 pages, ISBN: 978-1-137-48934-0

BOOK REVIEW. Constantin Vasile Țoca, Anatoliy Kruglashov and Zsolt Radics (editors). 2015 Border Cities in Europe. Eurolimes. Journal of the Institute for Euroregional Studies “Jean Monnet” European Centre of Excellence, University of Oradea, University of Debrecen, volume 19, spring, Oradea University Press, 261p, ISSN 2247/8450
Luminita BOGDAN

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venerdì 19 agosto 2016

The Acquis and its Principles: The Enforcement of the ‘Law’ versus the Enforcement of ‘Values’ in the European Union

Dimitry Kochenov 
University of Groningen - Faculty of Law

August 12, 2016

A. Jakab and D. Kochenov (eds.) The Enforcement of EU Law and Values (OUP 2017, Forthcoming) 

This book chapter emphasizes the importance of rethinking the approach to the enforcement of EU values as listed in Article 2 TEU. The on-going disregard of the key values of the Union in Hungary and Poland, illustrates with utmost clarity the Union’s helplessness in ensuring reliable and timely enforcement of the core of its law, as reflected in the key principles of democracy and the Rule of Law, which the Treaty of Lisbon has most misleadingly rebranded as ‘values’. Besides articulating the legal nature of Article 2 principles and providing a brief overview of the role played by the key principles of Article 2 in the context of EU law’s evolution, the focus turns to the gap in the general EU law enforcement literature which tends to focus on the technical issues while ignoring the bigger picture, and, finally, a critical survey of the key approaches to the enforcement of the principles of Article 2, which the Union could rely on in bridging the enforcement gap and bringing its defiant Member States to compliance.

Keywords: EU values, EU law, enforcement, compliance, rule of law, democracy, Hungary, Poland, Article 2

mercoledì 17 agosto 2016

Brexit: Legal & Constitutional Requirements, UCL, 13 July 2016

"Following the result of the referendum, the country is about to embark on a process of leaving the EU. In these difficult moments, it is crucial that this process is in accordance with legal and constitutional requirements. The constitutional framework governing Brexit needs to be laid out clearly, and with precision, for the benefit of both the people and government officials.

The UCL Faculty of Laws is hosting a public event on the constitutional implications of Brexit. Constitutional and European law experts from UCL will discuss what the legal constraints are on the process of leaving the European Union, and how they might influence the process of negotiations and the UK’s future relations with the EU.

Questions that will be addressed include:

Is Parliamentary approval needed for triggering article 50?
What role should Parliament have in the Brexit process?

Can and should there be exit negotiations with the EU before the triggering of article 50?

What are the possible options after article 50 has been triggered? Can the notice of withdrawal be withdrawn?

What are the options for future relations with the EU?

How will Brexit affect areas of UK law that have been heavily dependent on EU law?

How will Brexit affect the constitutional dimension of devolution?

Introduction by Professor Dame Hazel Genn DBE QC (Hon), Dean of UCL Laws.

Chaired by Joshua Rozenberg, Legal Commentator and Journalist

Speakers include:

- Professor Piet Eeckhout (UCL Laws), Professor of EU Law
- Dr Tom Hickman (UCL Laws), Reader in Public Law
- Professor Jeff King (UCL Laws), Professor of Law
- Professor George Letsas (UCL Laws), Professor of the Philosophy of Law
- Dr Virginia Mantouvalou (UCL Laws), Reader in Labour Law & Human Rights
- Dr Ronan McCrea (UCL Laws), Senior Lecturer in EU and Constitutional Law"

Here the video:

venerdì 12 agosto 2016

Free Movement of Persons and Brexit – Some Swiss Experience from Which the United Kingdom Could Benefit

Thomas Burri 
University of St. Gallen; University of Zurich

August 10, 2016

On June 24rd, 2016, the United Kingdom has begun to look for a new arrangement with the European Union, after the majority of the British people had voted in favour of Brexit. Switzerland was in a similar situation on December 7th, 1992, the day after a slim majority of its people had rejected the idea of joining the European Economic Area. Right then, Switzerland’s began to look for new ways to arrange itself with the EU. Switzerland consequently opted for a special approach requiring a new, separate agreement with the EU whenever an issue needed to be settled. What appeared as a fresh, even original idea at the beginning, soon yielded a thicket of agreements entangling Switzerland and causing it to lose sight of the values which had driven its search in the first place – namely democracy and sovereignty. A great deal of experience has accumulated, though – which may now prove useful for the United Kingdom.

There is more, though. Populists in the UK won the Brexit vote by amplifying migration. For Nigel Farage, it was perfectly clear that the only way for the UK to be able to control those who crossed the drawbridge was to leave the EU. Populists in the UK managed to place free movement of persons at the heart of the Brexit vote, playing on the fears of the people – and they won the vote on this agenda. Not long before, in early 2014, populists in Switzerland had forced a vote by the Swiss people on the introduction of an immigration quota, which would jeopardize the free movement of persons between Switzerland and the EU, the core of the complex web of agreements established in the wake of the EEA rejection in 1992. Populists then cast a spell on the people of Switzerland by amplifying migration – and they won the vote. Since then, the relationship between Switzerland and the EU has been put on hold, pending resolution of the incompatibility between a constitutionally mandated immigration quota and the free movement of persons under the agreement with the EU – like everything has been put on hold in the UK after the vote for Brexit. Both Switzerland and the UK now have to attempt to find a new way forward, a way which accommodates the fear of waves of incoming labour expressed in both popular votes. The experience Switzerland made in this regard since the vote of early 2014 again may prove interesting for the UK.

This article explores the basic options available for third states to arrange movement of labour with the EU and its member states, thereby aiming to lay out the best way forward for both the UK and Switzerland. The article, in particular, explores the idea of restricting immigration through quotas and reflects on how to make this work. The article also shows how the situations of the UK and Switzerland vis‑à‑vis the EU are connected, for better or for worse. It begins by explaining in simple words the law of free movement of persons in the EU internal market in section 1. Though this section may be obvious for some readers, it is necessary, because free movement of persons has been heated up and somewhat distorted during the discussions preceding the vote(s). The section shows that things are clear and securely rooted. In section 2, alternative arrangements for movement of labour are explored, namely the European Economic Area (section 2.1), the “bilateral” arrangement between the EU and Switzerland (section 2.2), and the arrangement between the EU and Turkey (section 2.3) – all with a view to the UK’s and Switzerland’s options in the future. Some of the experience Switzerland made over the past 25 years, and the past two years in particular, is also woven into this section. Section 3 then concludes briefly.

Keywords: Brexit, Free Movement of Persons, Fundamental Freedoms, Union Citizenship, Free Movement of Workers, Labour, Internal Market, European Union, European Economic Area, Turkey, Switzerland, Bilateral Agreements, External Relations of the EU

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EU Citizenship and Its Relevance to EU Exit and Secession

Phoebus Athanassiou 
European Central Bank (ECB) - Directorate General Legal Services

Stephanie Laulhe Shaelou 
UCLan Cyprus; University of Central Lancashire Cyprus

July 12, 2016

D. Kochenov (ed.), EU Citizenship and Federalism: the Role of Rights (CUP, 2016) 

One of the issues that has emerged in the public debate surrounding the possibility of exit or secession from the EU, but which has yet to be accorded the full weight it would deserve, is the relevance to that debate of the concept of EU citizenship. The increasing significance attributed thereto in recent years by the ECJ, and its gradual evolution through the ECJ’s jurisprudence, from a mostly symbolic concept to a basis for claims over concrete legal rights – as explored in detail elsewhere – raises the pertinent question whether the prospect of the loss of EU citizenship may, in an EU exit or an EU secession scenario, provide a basis for individual claims for its preservation.

Number of Pages in PDF File: 13

Keywords: EU withdrawal; State secession; EU citizenship; BREXIT; Scotland

Legal Aspects of Withdrawal from the EU: A Briefing Note

Pavlos Eleftheriadis 
University of Oxford - Faculty of Law

John Armour 
University of Oxford - Faculty of Law; University of Oxford - Said Business School; European Corporate Governance Institute (ECGI)

Luca Enriques 
University of Oxford Faculty of Law; European Corporate Governance Institute (ECGI)

Rebecca (Money-Kyrle) Mooney 
Centre for Socio Legal Studies, University of Oxford

Rebecca A. Williams 
University of Oxford - Faculty of Law

Alison L. Young 
University of Oxford - Faculty of Law

July 14, 2016

Oxford Legal Studies Research Paper No. 47/2016 

The withdrawal of the UK from the EU (or ‘Brexit’) as a result of the referendum of June 23 is certain to have profound implications for all aspects of the law of the United Kingdom. As soon as the result became known, legal commentators rushed to offer some kind of guidance. Surprising as it may seem, the pre-referendum debate focused mostly on what the EU is and does. There was very little debate on what the post-EU options would look like. As soon as the result was known, a gap in public awareness on what happens next was immediately evident. A group of academics from the Law Faculty at the University of Oxford met a few days after the referendum to discuss some of the potential legal effects. We decided to publish some of our preliminary thoughts as soon as possible in various blog posts in order to contribute, if we could, to the public debate. We also decided to collect these in a single paper that would become available online on SSRN. The result is a collective briefing note, edited by Pavlos Eleftheriadis, on various legal aspects of withdrawal from the European Union.

Keywords: European Union, United Kingdom, Brexit, Constitutional Law, Financial Services

Tempering Power

Martin Krygier 
University of New South Wales (UNSW) - Faculty of Law

December 21, 2015

Adams, Ballin and Meuwese eds., Bridging idealism and realism in constitutionalism and Rule of Law, Cambridge University Press, 2016, Forthcoming 
UNSW Law Research Paper No. 2015-80 

Realism and idealism do better together than apart, and not merely as separate and independent viewpoints that might be gathered together but as interdependent ingredients of a whole that is generally more satisfactory than the sum of its parts taken separately. Realistic-idealism is not an oxymoron, but a salutary combination. Ideals are part of the human world. ‘Realism’ that does not take their existence and significance into account is empirically impoverished and programmatically unhelpful. Conversely, idealism is at worst empty or at best Utopian, if undisciplined by the real. Utopias might have their attractions and uses as regulative principles, but not as practical ideals, intended to be made good (even if only partially) in the real world. And constitutionalism and the rule of law are intensely practical ideals.

Though closely related, they are not identical. So the first section of this article sketches some areas of overlap and distinction between constitutionalism and the rule of law. The second suggests one central aim they have in common: hostility to arbitrariness in the exercise of power. I then discuss different interpretations of this value, to illustrate the mutual and indispensable inter-twinings of realism and idealism involved in its pursuit. One of these interpretations, usually captured with terms such as ‘limiting’, ‘curbing’, ‘restraining’ power, prides itself on its tough-minded realism, and in truth it does focus on significant aspects of reality that should never be ignored. At the same time, however, it misses fundamental elements of what it seeks to describe and at the same time diminishes an ideal central to it. More readily to encompass that ideal I introduce the idea of tempering power, rather than ‘limiting …’, etc., and propose some reasons to prefer this term. Central is its ready availability for larger purposes, more positive ideals, for constitutionalism and the rule of law, than the crimped, negative, implications of the concepts in common use. This more positive spin turns out more realistic as well, so long as it neither forgets nor undermines the realistic foundations on which it depends.

Number of Pages in PDF File: 22

Keywords: regionalism, idealism, rule of law, constitutionalism, legal theory

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Human Rights in the EU: Historical, Comparative and Critical Perspectives

Federico Fabbrini 
University of Copenhagen - iCourts - Centre of Excellence for International Courts

May 10, 2016

R. Schütze & M. Ghering (eds), Governance and Globalization (CUP 2016), Forthcoming 
iCourts Working Paper Series, No. 63 

The chapter examines the foundational role that human rights play in the project of European integration, addressing the topic from three perspectives. First, it recounts the history of the protection of fundamental rights in the EU to emphasize that human rights have always been at the heart of the EU. Second, it compares the protection of fundamental rights in the EU with the protection at the national and international level to make the point that, actually, the EU human rights system is older and more established than most national and international systems in Europe. Third and finally, however, it also approaches the protection of human rights in the EU from a critical perspective, showing how the lack of strong mechanisms of executive enforcement in EU law constitutes a problem as the EU a faces centrifugal pressures from several member states.

Keywords: European Union, human rights, history, comparison, member states

domenica 7 agosto 2016

Dibattito sulla questione catalana a Napoli, 30 June 2016

Dibattito sulla questione catalana a Napoli, 30 June 2016

Conferenza organizzata dal Consiglio di Diplomazia Pubblica della Catalogna (DIPLOCAT) e dall'Università degli Studi di Napoli Federico II (taken from:

Full program available here

Full conference available here

Three Essays on Proportionality Doctrine

Mark Tushnet 
Harvard Law School

August 4, 2016

The following three essays deal with diverse aspects of the doctrine of proportionality. The first argues that rationality review in U.S. constitutional law, which deals with challenges to legislation on the ground that the legislation violates a general right to liberty rather than any specific enumerated right, could be improved by expressly incorporating several features of proportionality doctrine. The second addresses the often made claim that proportionality analysis leads to “rights inflation,” and offers a doctrinal account and a politico-cultural account of that phenomenon. The third, to appear in a collection co-edited by Vicki C. Jackson and Mark Tushnet, tentatively titled New Frontiers in Proportionality Analysis (Cambridge University Press, 2017), argues that some cases treated as “easy’ under proportionality doctrine, are actually more difficult, and that recognizing their difficulty supports, to some degree, the adoption of the kind of categorical analysis that proportionality doctrine is thought to reject.

Keywords: Comparative constitutional law, proportionality, rationality review

Full text available here 

sabato 6 agosto 2016

Evaluation and Effectiveness of Counter-Terrorism

Fiona de Londras 
Birmingham Law School

June 29, 2016

Forthcoming in Wim Hardyns, Koen Ponnet, Genserik Reniers, Wim Smit, Luc Braeckmans & Barbara Segaert (eds), Socially Responsible Innovation in Security: Critical Reflections (2017) 

In spite of their proliferation at national and supra-national levels, evaluation of whether counter-terrorist measures are actually effective is worryingly inadequate or, sometimes, simply non-existent. In this short essay I argue that the expansion of counter-terrorism in the past decade and a half has had, and continues to have, serious implications for human rights (not only of suspected terrorists, but of all of us), for democracy, and for the Rule of Law. As a result, part of assessing the justifiability of maintaining (and expanding) these measures must be to establish that they are not only prospectively necessary and designed with rights concerns in mind (the arguments made in justifying their introduction), but also actually effective and proportionate. In order for us to truly assess the effectiveness of counter-terrorist measures and the robustness of the underlying necessity claim, we must assess the extent to which they meet both meta-objectives of security measures per se and the specific objectives of these measures themselves in as comprehensive, rigorous, and open a way possible. Current practice is, however, not to do this in a systematic manner, meaning that counter-terrorism continues to expand on the basis of prospective arguments as to its necessity and appropriateness, claims for trust on the part of governments and, ultimately, shaky evidentiary bases.

Keywords: terrorism, counter-terrorism, security studies

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Marriage Registrars, Same-Sex Relationships, and Religious Discrimination in the European Court of Human Rights

Christopher McCrudden 
Queen's University Belfast - School of Law; University of Michigan Law School

July 20, 2016

U of Michigan Public Law Research Paper No. 513 

The case of Ladele v United Kingdom was decided in January 2015 by the European Court of Human Rights. Lillian Ladele was a marriage registrar, with years of good service, employed by a London local authority (the London Borough of Islington). The law in the United Kingdom changed whilst she was in post to permit civil partnerships between same-sex couples. Ms Ladele had a sincere conscientious objection to performing civil partnership ceremonies, arising from her Christian faith. In spite of her protests, Ms Ladele was designated to register and perform civil partnership ceremonies by the local authority, contrary to her religion and conscience. She refused, was disciplined, and forced to resign. She claimed religious discrimination in the national courts, won at first instance, lost at the domestic appellate level, and then took her case to the European Court of Human Rights, where she also lost. Using the Ladele case, but ranging well beyond it, I explore some of the more important implications of using a religious discrimination claim in the context of refusals by public employers to permit their employees to exercise a religiously-based conscientious objection to the provision of a service provided by that employer, particularly the refusal by a public marriage registrar to officiate at ceremonies that involve the state recognizing a same-sex couple’s legal status as civil partners or married. I explore also the differences between a claim for protection based on a freedom of religion argument, from one based on a claim of religious discrimination. Doing so provides the opportunity to explore what, exactly, a claim of religious discrimination involves, and how it relates to the theory of anti-discrimination law more generally.

Keywords: Marriage Registrars, Same-Sex Relationships, Civil Partnerships, Religious Discrimination, European Court of Human Rights, Conscientious Objection, Theory of Anti-Discrimination Law, Religious Freedom

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Conclusion: Comparative Experience of Intergovernmental Relations in Federal Systems

Johanne Poirier 
McGill University - Faculty of Law

Cheryl Saunders 
Melbourne Law School

July 31, 2015

"Conclusion: Comparative Experience of Intergovernmental Relations in Federal Systems", in POIRIER, Johanne, SAUNDERS, Cheryl, KINCAID, John (eds.), Intergovernmental Relations in Federal Systems: Comparative Structures and Dynamics, Oxford University Press, 2015, pp. 440-498 

This chapter concludes Intergovernmental Relations in Federal Systems: Comparative Structures and Dynamics, a volume that identifies and compares mechanisms of intergovernmental relations (IGR) in thirteen federal systems. It draws together the findings of the volume, loosely following the template provided to the authors and the structure of the various chapters. Part I identifies points of difference and convergence in the history, design, and system of government of the federations under study in order to highlight the ways in which these factors affect IGR. Part II compares the forms and processes of IGR of the thirteen case studies, dealing with legislative and executive involvement, joint and specialized agencies, intergovernmental agreements and fiscal federalism, among other things. Part III then identifies a range of emerging trends and common challenges in IGR across the thirteen case studies. Finally, the chapter concludes with reflections on the impact of IGR on federalism itself, underlining the competing tensions between centralising trends through formal or informal IGR on one hand, and resistance to this pressure by CUs and other actors, on the other.

Keywords: federalism, intergovernmental relations, comparative, law, politics

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Conclusion: Comparative Experience of Intergovernmental Relations in Federal Systems

Johanne Poirier 
McGill University - Faculty of Law

Cheryl Saunders 
Melbourne Law School

July 31, 2015

"Conclusion: Comparative Experience of Intergovernmental Relations in Federal Systems", in POIRIER, Johanne, SAUNDERS, Cheryl, KINCAID, John (eds.), Intergovernmental Relations in Federal Systems: Comparative Structures and Dynamics, Oxford University Press, 2015, pp. 440-498 

This chapter concludes Intergovernmental Relations in Federal Systems: Comparative Structures and Dynamics, a volume that identifies and compares mechanisms of intergovernmental relations (IGR) in thirteen federal systems. It draws together the findings of the volume, loosely following the template provided to the authors and the structure of the various chapters. Part I identifies points of difference and convergence in the history, design, and system of government of the federations under study in order to highlight the ways in which these factors affect IGR. Part II compares the forms and processes of IGR of the thirteen case studies, dealing with legislative and executive involvement, joint and specialized agencies, intergovernmental agreements and fiscal federalism, among other things. Part III then identifies a range of emerging trends and common challenges in IGR across the thirteen case studies. Finally, the chapter concludes with reflections on the impact of IGR on federalism itself, underlining the competing tensions between centralising trends through formal or informal IGR on one hand, and resistance to this pressure by CUs and other actors, on the other.

Keywords: federalism, intergovernmental relations, comparative, law, politics

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Comparing Intergovernmental Relations and Cooperative Mechanisms in Federal Systems: An Introduction

Johanne Poirier 
McGill University - Faculty of Law

Cheryl Saunders 
Melbourne Law School

July 31, 2015

in POIRIER, Johanne, SAUNDERS, Cheryl et KINCAID, John (eds.), Intergovernmental Relations in Federal Systems: Comparative Structures and Dynamics, Oxford University Press, 2015, pp 1-13 

This chapter is the introduction of Intergovernmental Relations in Federal Systems: Comparative Structures and Dynamics, a volume that identifies and compares mechanisms of intergovernmental relations (IGR) in thirteen federal systems from around the world. Although IGR are an integral and significant part of every federal system, they are often opaque. This comparative study – both descriptive and analytical – thus aims to identify and contrast IGR mechanisms in a systematic manner, as well as to assess their impact on federalism and outline the common trends and challenges they raise. The authors then comment on the methodology used throughout the study to facilitate transnational and transdisciplinary dialogue before outlining the structure of the volume.

Keywords: federalism, intergovernmental relations, comparative, law, politics

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Constitutional Sunrise

Sofia Ranchordas 
Leiden Law School, Department of Public Law; Yale Law School - Information Society Project

July 25, 2016

Forthcoming in the Peer-Review Edited Collection by Richard Albert, Xenophon Contiades, Alkmini Fontiadou (eds), The Foundations and Traditions of Constitutional Amendment (Hart Publishing 2017) 

This chapter explores the use of sunrise clauses as instruments of constitutional change. These dispositions allow the constituent power to defer the coming into effect of constitutional provisions. Contrary to by-law clauses, which delegate constitutional decisions to the legislator, sunrise clauses do not always require legislative or executive interference. The delayed commencement of sunrise provisions can be either automatic (e.g., ratification by all provinces) or contingent upon the verification of legal or factual conditions imposed by the constituent power (e.g., a referendum).

While these provisions are relatively unknown in the literature on comparative constitutional law, this chapter suggests that multiple constitutions contain automatic or contingent sunrise clauses. This is the case of the Belgian, Georgian, Indian, Irish, and the U. S. constitutions. While the constitutionality of sunrise clauses has been challenged in Ireland and South Africa, I argue that the inclusion of sunrise clauses is a legitimate form of the exercise of the constituent power.

Keywords: sunrise clauses; constitutional change; constitutional amendment; constituent power; sunset clauses; comparative law

Beyond Proportionality: Thinking Comparatively About Constitutional Review and Punitiveness

Jacco Bomhoff 
London School of Economics - Law Department

June 24, 2016

LSE Legal Studies Working Paper No. 12/2016 

US law is often cast as a notable outlier in two prominent fields of comparative studies. Among comparative constitutional lawyers, the US Supreme Court is famous for its apparent reluctance to embrace the kind of proportionality reasoning seemingly so familiar in Western Europe and in other liberal jurisdictions. And for scholars of comparative criminal justice, the United States stands out, as it has for the past 40 years or so, in terms of the numbers of individuals sent to prison, and in the harshness of the treatment meted out to offenders. Could these two phenomena be connected? By way of an indirect - and incomplete - answer to this question, this paper develops three lines of argument on the punitiveness-proportionality relationship. First, at least some of the factors that help explain cross-country variations in punitiveness, seem relevant also to an understanding of similarities and differences in relation to proportionality reasoning in constitutional jurisprudence. The paper discusses what comparative constitutional lawyers might take from leading work in this area by David Garland, Nicola Lacey, Michael Tonry, James Q. Whitman and others. Second, the comparative punitiveness literature shows how a more substantive understanding of ‘proportionateness’ could be developed, to move beyond the more formal, doctrinal preoccupations of much comparative constitutional law scholarship on proportionality. And third, the paper suggests that penal moderation and proportionality reasoning appear connected in terms of a deeper, underlying sensibility framed here as an ‘intolerance for wrong outcomes’. The paper proposes that future comparative work should aim to engage more directly with this underlying intolerance and its opposites.

venerdì 5 agosto 2016

CSF SSSUP Working Paper Archive

The Scuola Superiore Sant’Anna in Pisa and the Centre for Studies on Federalism (CSF) launched a new Research Programme on the issues related to federalism and global governance in a broad perspective but with a special focus on European law and politics. The Programme combines interactive activities (seminars and conferences) and a new Working Paper series.

Various stakeholders will be involved throughout the programme enhancing the academic approach with fresh and innovative inputs and views. The new Paper series will host contributions from both young academics and, advanced and well-established researchers as well as experts and professionals. The aim of the series is not only to enrich the academic debate but also to elaborate ideas and visions for policy-makers. The Programme will benefit from the broad experience of both the Scuola Superiore Sant’Anna and the CSF and it will continue to value a multidisciplinary approach attracting contributions from across an array of disciplines, including political science, international relations, international political economy, comparative, international and European law, political theory. Papers submitted will be peer reviewed and selected for publication according to their academic quality and their fit with the specific thematic focus of the Series.

This is a project made possible thanks to the financial support offered by Centre for Studies on Federalism and the Compagnia San Paolo, Torino. It is - above all - a ‘space’ where both young and experienced scholars can share a space and submit papers research through the supply of easily- accessible working papers.

All working papers submitted undergo a double blind peer-review process. This project responds to a multi-disciplinary and pluralist perspective. This also reflects the spirit of the DIRPOLIS (Law, Politics and Development) Institute.
The Working Paper Series does not adopt a particular style, and papers may be submitted in any recognised style consistently applied. The papers are published electronically and are available online or through email distribution. Published papers can still be submitted for reviews and journals.

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CSF IAI Working Paper Archive

"L’architettura istituzionale dell’Unione europea (Ue) e le differenti procedure decisionali che caratterizzano le sue politiche pongono molte domande sull’esistenza di un governo dell’Unione e sulla sua natura. Negli ultimi anni, a seguito di rilevanti cambiamenti nella struttura e negli equilibri istituzionali dell’Ue, il tema è emerso ripetutamente nel dibattito politico e accademico.

Il progetto condotto dal Centro Studi sul Federalismo (CSF) e dall’ Istituto Affari Internazionali (IAI) di Roma intende analizzare l’attuale struttura del sistema di governance/governo dell’Ue nei suoi diversi ambiti: (1) sovranazionalismo e
intergovernamentalismo; (2) rappresentanza e democrazia; (3) la sfida dell’integrazione differenziata; (4) la governance economica; (5) l’Europa nel mondo.

Il progetto si propone di arrivare a delle raccomandazioni politiche e istituzionali di medio-lungo periodo tese a migliorare la democraticità del sistema e l’efficacia delle procedure decisionali.

I contributi di esperti nazionali e internazionali saranno pubblicati in una serie di saggi curata dal CSF e dallo IAI, e disponibile sui siti web dei due istituti. I risultati del progetto saranno presentati in un seminario a Roma e in una conferenza a Bruxelles previsti tra la fine del 2015 e l'inizio del 2016."

(taken from:

Full papers available at:

mercoledì 3 agosto 2016



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