On 5 May 2020, the Federal Constitutional Court of Germany announced in a momentous ruling that the Public Sector Purchase Programme (PSPP) of the European Central Bank (ECB) exceeds European Union (EU) competences. This decision initiated a lively debate in law and economics all over Europe. This article provides a unique interdisciplinary reading of the ruling in order to clarify the line of argument. Considering a cross-disciplinary view enlightens the understanding of the historic judgment. Ultra-Vires, European Court of Justice, German Federal Constitutional Court, Public Sector Purchase Programme, European Central Bank, Monetary vs. Economic Policy, Economic and Monetary Union
{"title":"Judgment of the German Federal Constitutional Court (2 BvR 859/15) on the Public Sector Purchase Programme of the ECB: An Interdisciplinary Analysis","authors":"Bodo Herzog","doi":"10.54648/euro2021032","DOIUrl":"https://doi.org/10.54648/euro2021032","url":null,"abstract":"On 5 May 2020, the Federal Constitutional Court of Germany announced in a momentous ruling that the Public Sector Purchase Programme (PSPP) of the European Central Bank (ECB) exceeds European Union (EU) competences. This decision initiated a lively debate in law and economics all over Europe. This article provides a unique interdisciplinary reading of the ruling in order to clarify the line of argument. Considering a cross-disciplinary view enlightens the understanding of the historic judgment.\u0000Ultra-Vires, European Court of Justice, German Federal Constitutional Court, Public Sector Purchase Programme, European Central Bank, Monetary vs. Economic Policy, Economic and Monetary Union","PeriodicalId":43955,"journal":{"name":"European Public Law","volume":"11 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71105599","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The article primarily examines the Achbita judgment within the context of the struck balance of competing rights/freedoms, i.e., the right to manifest religion and the freedom to conduct a business. It argues that with its lenient and one-sided application of proportionality and by affording the freedom to conduct a business of an employer almost an unfettered prerogative against the right to religious manifestation of an employee, the Achbita judgment could be included into the line of case law, such as Viking, Laval, Alemo-Herron and AGET-Iraklis, which provides for preference and prevalence of economic rights/freedoms over conflicting social rights. The judgment even extends that preference and prevalence to the fields having no crossborder element. If not having confirmed horizontal direct effect of Article 16 of the Charter and so recognized it in nature as a right rather than a principle in the sense of Article 52(5) of the Charter, the CJEU paves the way for consolidating this judicial trend. As a consequence in respect of the principle of non-discrimination on certain grounds, the judgment establishes different levels of protection for different grounds of discrimination and consolidates it by downplaying the right to manifest religion towards the bottom. Headscarf, the Principle of Non-Discrimination on the Grounds of Religion, Freedom to Conduct a Business, Corporate Neutrality Policy, the Margin of Appreciation of the Member States, the Hierarchy between the Grounds of Discrimination, Intersectional Discrimination
{"title":"Prevalence of an Economic Right/Freedom Over a Social Right in a Horizontal Litigation Once Again","authors":"M. T. Karayiğit","doi":"10.54648/euro2021036","DOIUrl":"https://doi.org/10.54648/euro2021036","url":null,"abstract":"The article primarily examines the Achbita judgment within the context of the struck balance of competing rights/freedoms, i.e., the right to manifest religion and the freedom to conduct a business. It argues that with its lenient and one-sided application of proportionality and by affording the freedom to conduct a business of an employer almost an unfettered prerogative against the right to religious manifestation of an employee, the Achbita judgment could be included into the line of case law, such as Viking, Laval, Alemo-Herron and AGET-Iraklis, which provides for preference and prevalence of economic rights/freedoms over conflicting social rights. The judgment even extends that preference and prevalence to the fields having no crossborder element. If not having confirmed horizontal direct effect of Article 16 of the Charter and so recognized it in nature as a right rather than a principle in the sense of Article 52(5) of the Charter, the CJEU paves the way for consolidating this judicial trend. As a consequence in respect of the principle of non-discrimination on certain grounds, the judgment establishes different levels of protection for different grounds of discrimination and consolidates it by downplaying the right to manifest religion towards the bottom.\u0000Headscarf, the Principle of Non-Discrimination on the Grounds of Religion, Freedom to Conduct a Business, Corporate Neutrality Policy, the Margin of Appreciation of the Member States, the Hierarchy between the Grounds of Discrimination, Intersectional Discrimination","PeriodicalId":43955,"journal":{"name":"European Public Law","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44201719","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Early Lessons From The EU/UK Brexit Negotiations: Implications For Ireland","authors":"C. Macmaoláin","doi":"10.54648/euro2021031","DOIUrl":"https://doi.org/10.54648/euro2021031","url":null,"abstract":"","PeriodicalId":43955,"journal":{"name":"European Public Law","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45022244","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
EU law places a number of requirements on administrative authorities that puts them in potentially invidious positions; while EU law today does not require institutionally independent administrative authorities or provide protection for the independence of authorities beyond the field of data protection, it does require administrative authorities to act independently through the loyal and effective enforcement of EU law. This requirement of acting independently without institutional independence raises certain implications for the role of administrative authorities acting within the hierarchical administrative orders of Member States. Using the case of Sweden – a Member State where administrative authorities enjoy significant constitutionally protected independence in the application of law and decision of cases – this article argues that the effect of EU law obligations of effectiveness and loyalty is a weakening of the hierarchical influence of the government over its own authorities, with a resulting shift of influence towards the legal arena through the provision of politically expedient interpretations of EU law. The invidious position of administrative authorities within the scope of EU law is likely to make them vulnerable to such influence, which may ultimately interfere with the effective administration of EU law. Administrative independence, EU-law, principle of effectiveness, national institutional and procedural autonomy, distributed administration, national administrative authorities, constitutional law, Costanzo, Tele2/Watson
{"title":"Administrative Independence Under EU Law: Stuck Between a Rock and Costanzo?","authors":"Lena Enqvist, Markus Naarttijärvi","doi":"10.54648/euro2021035","DOIUrl":"https://doi.org/10.54648/euro2021035","url":null,"abstract":"EU law places a number of requirements on administrative authorities that puts them in potentially invidious positions; while EU law today does not require institutionally independent administrative authorities or provide protection for the independence of authorities beyond the field of data protection, it does require administrative authorities to act independently through the loyal and effective enforcement of EU law. This requirement of acting independently without institutional independence raises certain implications for the role of administrative authorities acting within the hierarchical administrative orders of Member States. Using the case of Sweden – a Member State where administrative authorities enjoy significant constitutionally protected independence in the application of law and decision of cases – this article argues that the effect of EU law obligations of effectiveness and loyalty is a weakening of the hierarchical influence of the government over its own authorities, with a resulting shift of influence towards the legal arena through the provision of politically expedient interpretations of EU law. The invidious position of administrative authorities within the scope of EU law is likely to make them vulnerable to such influence, which may ultimately interfere with the effective administration of EU law.\u0000Administrative independence, EU-law, principle of effectiveness, national institutional and procedural autonomy, distributed administration, national administrative authorities, constitutional law, Costanzo, Tele2/Watson","PeriodicalId":43955,"journal":{"name":"European Public Law","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46894613","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The article asks whether the European Union (EU)’s duty to protect national identities is a useful way to address diverging conceptions of fundamental rights, and it argues that it is not. On the basis of an examination of the text of Article 4(2) TEU, its history and the practice of the Court of Justice, it is argued that the concept of ‘national identities’ under Article 4(2) TEU does not cover particular national conceptions of fundamental rights, but admits that it may be difficult to make a clear separation between the more organizational or structural elements of national identity and their impact on the fundamental rights of individuals. The article then proceeds to look at national approaches, where fundamental rights tend to be included in the concept of constitutional identities to be protected by national courts. It is argued, however, that arguments based on constitutional identity under national law are not conducive for deciding cases on EU fundamental rights. Such identity claims operate as trump cards. Yet, there are other ways to accommodate diversity among the Member States in the area of fundamental rights. If these are used and respected also by the Court of Justice, unilateral recourse to constitutional identity is not needed. Constitutional identity – national diversity – protection of fundamental rights – identity review – divergence – harmonization of fundamental rights protection – national choices
{"title":"National Identity and the Protection of Fundamental Rights","authors":"M. Claes","doi":"10.54648/euro2021024","DOIUrl":"https://doi.org/10.54648/euro2021024","url":null,"abstract":"The article asks whether the European Union (EU)’s duty to protect national identities is a useful way to address diverging conceptions of fundamental rights, and it argues that it is not. On the basis of an examination of the text of Article 4(2) TEU, its history and the practice of the Court of Justice, it is argued that the concept of ‘national identities’ under Article 4(2) TEU does not cover particular national conceptions of fundamental rights, but admits that it may be difficult to make a clear separation between the more organizational or structural elements of national identity and their impact on the fundamental rights of individuals. The article then proceeds to look at national approaches, where fundamental rights tend to be included in the concept of constitutional identities to be protected by national courts. It is argued, however, that arguments based on constitutional identity under national law are not conducive for deciding cases on EU fundamental rights. Such identity claims operate as trump cards. Yet, there are other ways to accommodate diversity among the Member States in the area of fundamental rights. If these are used and respected also by the Court of Justice, unilateral recourse to constitutional identity is not needed.\u0000Constitutional identity – national diversity – protection of fundamental rights – identity review – divergence – harmonization of fundamental rights protection – national choices","PeriodicalId":43955,"journal":{"name":"European Public Law","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44711820","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Constitutional identity, EU law, constitutional law, EU member states
宪法身份、欧盟法律、宪法、欧盟成员国
{"title":"Book Review: Christian Calliess & Gerhard van der Schyff (Eds), Constitutional Identity in a Europe of Multilevel Constitutionalism (Cambridge: Cambridge University Press. 2020)","authors":"David C. Paris","doi":"10.54648/euro2021029","DOIUrl":"https://doi.org/10.54648/euro2021029","url":null,"abstract":"\u0000Constitutional identity, EU law, constitutional law, EU member states","PeriodicalId":43955,"journal":{"name":"European Public Law","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43974289","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
One of the concerns that led to the introduction of Article 4(2) TEU was the growing interference of EU law into areas traditionally reserved to the Member States. In particular, Article 4(2) TEU was seen as a way to better shield matters of ‘retained competences’, where EU institutions have not been conferred legislative competences, and to possibly create no-go areas for EU law. Yet, this article argues that in practice, the national identity clause has not worked as a limit to EU competences and the scope of EU law. The case law of the Court of Justice in the decade after the entry into force of the Lisbon Treaty, and in particular a set of recent decisions in sensitive areas such as religion, family and nationality analysed in this article, allow to conclude that reliance on Article 4(2) TEU does not limit the scope of application of EU law, though it may contribute to reach results that show deference to national preferences and leave room for national diversity. The article thus suggests a weaker reading of the national identity clause: not as a fully blown limit to EU competence, but as one of the many clauses that stand for, and guarantee, national diversity. National identity, constitutional identity, Lisbon Treaty, EU competences, European integration
{"title":"National Identity and European Integration Beyond ‘Limited Fields’","authors":"M. Bonelli","doi":"10.54648/euro2021025","DOIUrl":"https://doi.org/10.54648/euro2021025","url":null,"abstract":"One of the concerns that led to the introduction of Article 4(2) TEU was the growing interference of EU law into areas traditionally reserved to the Member States. In particular, Article 4(2) TEU was seen as a way to better shield matters of ‘retained competences’, where EU institutions have not been conferred legislative competences, and to possibly create no-go areas for EU law. Yet, this article argues that in practice, the national identity clause has not worked as a limit to EU competences and the scope of EU law. The case law of the Court of Justice in the decade after the entry into force of the Lisbon Treaty, and in particular a set of recent decisions in sensitive areas such as religion, family and nationality analysed in this article, allow to conclude that reliance on Article 4(2) TEU does not limit the scope of application of EU law, though it may contribute to reach results that show deference to national preferences and leave room for national diversity. The article thus suggests a weaker reading of the national identity clause: not as a fully blown limit to EU competence, but as one of the many clauses that stand for, and guarantee, national diversity.\u0000National identity, constitutional identity, Lisbon Treaty, EU competences, European integration","PeriodicalId":43955,"journal":{"name":"European Public Law","volume":"1 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41582302","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Identity is a key, but vague, ambiguous and polysemic concept of public law. In EU law, the concept underwent a process of legalization: it emerged as a political clause in the Treaty of Maastricht and gained constitutional meaning after the Treaty of Lisbon. The article traces this process of legalization, arguing that even though the constitutionalization of the identity clause in EU law was primarily addressed to the Court of Justice of the EU, a major role in this process has been played by national courts. The article, however, claims that the process of transformation of the identity clause is not over, and that currently the concept is being subject to abusive and dangerous manipulations. The article supports a comprehensive reading of the identity clause in EU law within the broader context of EU fundamental principles. In particular, the article claims that a tight connection of the identity clause should be kept with the democratic mandate of the EU. This connection emerged very clearly in the Maastricht formulation of the Treaty on the European Union but is still now a viable remedy to reject Member States’ appeals to protect unconstitutional constitutional identities. constitutional identity, primacy, ultra vires, identity clause, abuse
同一性是公法的一个关键但又模糊、模棱两可和多义性的概念。在欧盟法律中，这一概念经历了一个合法化的过程:它作为《马斯特里赫特条约》(Treaty of Maastricht)中的政治条款出现，并在《里斯本条约》(Treaty of Lisbon)之后获得宪法意义。本文追溯了这一合法化过程，认为尽管欧盟法律中身份条款的宪法化主要是针对欧盟法院的，但国家法院在这一过程中发挥了重要作用。然而，这篇文章声称，身份条款的转变过程尚未结束，目前这一概念正受到滥用和危险的操纵。本文支持在欧盟基本原则的更广泛背景下对欧盟法律中的身份条款进行全面解读。特别是，该条款声称应将身份条款与欧盟的民主授权保持紧密联系。这种联系在马斯特里赫特制定的《欧洲联盟条约》中非常明显地出现，但现在仍然是拒绝会员国保护违宪宪法特征的呼吁的可行补救办法。宪法认同，至高无上，越权，认同条款，滥用
{"title":"On the Identity Clause and Its Abuses: ‘Back to the Treaty’","authors":"Pietro Faraguna","doi":"10.54648/euro2021020","DOIUrl":"https://doi.org/10.54648/euro2021020","url":null,"abstract":"Identity is a key, but vague, ambiguous and polysemic concept of public law. In EU law, the concept underwent a process of legalization: it emerged as a political clause in the Treaty of Maastricht and gained constitutional meaning after the Treaty of Lisbon. The article traces this process of legalization, arguing that even though the constitutionalization of the identity clause in EU law was primarily addressed to the Court of Justice of the EU, a major role in this process has been played by national courts. The article, however, claims that the process of transformation of the identity clause is not over, and that currently the concept is being subject to abusive and dangerous manipulations. The article supports a comprehensive reading of the identity clause in EU law within the broader context of EU fundamental principles. In particular, the article claims that a tight connection of the identity clause should be kept with the democratic mandate of the EU. This connection emerged very clearly in the Maastricht formulation of the Treaty on the European Union but is still now a viable remedy to reject Member States’ appeals to protect unconstitutional constitutional identities.\u0000constitutional identity, primacy, ultra vires, identity clause, abuse","PeriodicalId":43955,"journal":{"name":"European Public Law","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42406654","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this contribution I attempt to explain why so many fundamental controversies surrounding the provision on national identity have not been nearly resolved ten years after the entry into force of the Lisbon Treaty. Also, I indicate why these problems and controversies can be expected to linger on for at least the next ten years. Constitutional identity, EU law, constitutional law, EU member states
{"title":"The Persistence of a Contested Concept: Reflections on Ten Years Constitutiona Identity in EU Law","authors":"L. Besselink","doi":"10.54648/euro2021028","DOIUrl":"https://doi.org/10.54648/euro2021028","url":null,"abstract":"In this contribution I attempt to explain why so many fundamental controversies surrounding the provision on national identity have not been nearly resolved ten years after the entry into force of the Lisbon Treaty. Also, I indicate why these problems and controversies can be expected to linger on for at least the next ten years.\u0000Constitutional identity, EU law, constitutional law, EU member states","PeriodicalId":43955,"journal":{"name":"European Public Law","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48826044","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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