The main argument of this article is that the meaning of the national identity clause of Article 4 (2) TEU should be limited to what its text actually states, namely to a guarantee for the constitutional structures of the European Union (EU) Member States. The article rejects the broader meaning often given to this Treaty provision, namely that it offers a kind of generic protection for national diversity and national constitutional values. Such a broader meaning is not needed, since primary EU law contains many other provisions that protect national diversity, all of which have a specific meaning and role in the EU legal order. Giving Article 4(2) the broader meaning is harmful, as it opens the door to abusive and superficial uses of identity as a justification for non-compliance with EU law obligations from the side of the Member States. national constitutions, institutional diversity, cultural diversity, regional autonomy, judicial organization, national languages
{"title":"Article 4(2) TEU as a Protection of the Institutional Diversity of the Member States","authors":"B. de Witte","doi":"10.54648/euro2021026","DOIUrl":"https://doi.org/10.54648/euro2021026","url":null,"abstract":"The main argument of this article is that the meaning of the national identity clause of Article 4 (2) TEU should be limited to what its text actually states, namely to a guarantee for the constitutional structures of the European Union (EU) Member States. The article rejects the broader meaning often given to this Treaty provision, namely that it offers a kind of generic protection for national diversity and national constitutional values. Such a broader meaning is not needed, since primary EU law contains many other provisions that protect national diversity, all of which have a specific meaning and role in the EU legal order. Giving Article 4(2) the broader meaning is harmful, as it opens the door to abusive and superficial uses of identity as a justification for non-compliance with EU law obligations from the side of the Member States.\u0000national constitutions, institutional diversity, cultural diversity, regional autonomy, judicial organization, national languages","PeriodicalId":43955,"journal":{"name":"European Public Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2021-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43463145","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}
This article explores the parable of national identity under Article 4.2 Treaty on European Union (TEU), a provision which has received great attention by scholars, and which has recently been seen as a ‘troublemaker’ due to its problematic (ab)use by some national courts. This piece also tries to advance some proposals to redeem this concept in EU constitutional law. This is in line with recent suggestions that have been made to revitalise Article 4.2 TEU. national identity, constitutional courts, Court of Justice of the European Union, Article 4.2 TEU
{"title":"Taming National Identity: A Systematic Understanding of Article 4.2 TEU","authors":"Giuseppe Martinico","doi":"10.54648/euro2021021","DOIUrl":"https://doi.org/10.54648/euro2021021","url":null,"abstract":"This article explores the parable of national identity under Article 4.2 Treaty on European Union (TEU), a provision which has received great attention by scholars, and which has recently been seen as a ‘troublemaker’ due to its problematic (ab)use by some national courts. This piece also tries to advance some proposals to redeem this concept in EU constitutional law. This is in line with recent suggestions that have been made to revitalise Article 4.2 TEU.\u0000national identity, constitutional courts, Court of Justice of the European Union, Article 4.2 TEU","PeriodicalId":43955,"journal":{"name":"European Public Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2021-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45750150","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}
This article deals with constitutional identity review by the German Federal Constitutional Court (FCC). While identity review is often discussed merely as an instrument of judicial contestation by which the FCC challenges the European Court of Justice and its stance on the primacy of EU law, this article shows that both the aim and the effect of identity review go far beyond judicial conflict. In fact, identity review produces significant preventive and deterrent effects on (national) EU policies, which come into play well before any judicial conflict. By means of preventive identity review, the FCC has created a fog of identity, a dark field of potential unconstitutionality, which considerably limits the scope of policy choices in advance and even irrespective of whether or not these policies would ultimately be judged to be unconstitutional. As for the defensive dimension of identity review, the article addresses the complexity of the (too often simplified) conceptual relationship of identity review to other modes of review such as ultra vires review and the Solange case law. It shows that identity review has gradually become the conceptual heart of the FCC’s defensive triad. Identity review, constitutional identity, fog of identity, German Federal Constitutional Court, preventive and defensive identity review, eternity clause, principle of democracy, NGEU, European Arrest Warrant III, PSPP, Unified Patent Court, Right to be forgotten I and II, Banking Union, Egenberger
{"title":"The Fog of Identity and Judicial Contestation: Preventive and Defensive Constitutional Identity Review in Germany","authors":"M. Wendel","doi":"10.54648/euro2021022","DOIUrl":"https://doi.org/10.54648/euro2021022","url":null,"abstract":"This article deals with constitutional identity review by the German Federal Constitutional Court (FCC). While identity review is often discussed merely as an instrument of judicial contestation by which the FCC challenges the European Court of Justice and its stance on the primacy of EU law, this article shows that both the aim and the effect of identity review go far beyond judicial conflict. In fact, identity review produces significant preventive and deterrent effects on (national) EU policies, which come into play well before any judicial conflict. By means of preventive identity review, the FCC has created a fog of identity, a dark field of potential unconstitutionality, which considerably limits the scope of policy choices in advance and even irrespective of whether or not these policies would ultimately be judged to be unconstitutional. As for the defensive dimension of identity review, the article addresses the complexity of the (too often simplified) conceptual relationship of identity review to other modes of review such as ultra vires review and the Solange case law. It shows that identity review has gradually become the conceptual heart of the FCC’s defensive triad.\u0000Identity review, constitutional identity, fog of identity, German Federal Constitutional Court, preventive and defensive identity review, eternity clause, principle of democracy, NGEU, European Arrest Warrant III, PSPP, Unified Patent Court, Right to be forgotten I and II, Banking Union, Egenberger","PeriodicalId":43955,"journal":{"name":"European Public Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2021-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43879045","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}
This introductory article lays out the background of the inquiry proposed by the contributions of this special issue, while also presenting its main findings and adopting a forward-looking stance. To this end, it first briefly recalls what the origins of the identity clause are, before it discusses what meanings this clause could have. Subsequently, the main conclusions of the various articles are presented. The final part concludes by restating that national identity remains an undefined concept, which can only be defined on a case-by-case basis by means of dialogue between national and European courts. National identity – constitutional identity – constitutional courts – European Court of Justice – judicial dialogue
{"title":"National Constitutional Identity Ten Years on: State of Play and Future Perspectives","authors":"B. de Witte, D. Fromage","doi":"10.54648/euro2021019","DOIUrl":"https://doi.org/10.54648/euro2021019","url":null,"abstract":"This introductory article lays out the background of the inquiry proposed by the contributions of this special issue, while also presenting its main findings and adopting a forward-looking stance. To this end, it first briefly recalls what the origins of the identity clause are, before it discusses what meanings this clause could have. Subsequently, the main conclusions of the various articles are presented. The final part concludes by restating that national identity remains an undefined concept, which can only be defined on a case-by-case basis by means of dialogue between national and European courts.\u0000National identity – constitutional identity – constitutional courts – European Court of Justice – judicial dialogue","PeriodicalId":43955,"journal":{"name":"European Public Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2021-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43513898","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 Lisbon Treaty brought about a reform of the ‘identity clause’ now contained in Article 4(2) Treaty on European Union (TEU). Among other things, it introduced a specific reference to the local and regional dimension of Member States’ national identities. This article assesses what this new provision implies and how it was used by courts during the first decade following the entry into force of the Lisbon Treaty. This allows conducting a general reflection on the role and standing of regions within the EU under that Treaty. This article claims that, on the one hand, the specific mention of the local and regional dimension was already inherent to Member States’ national identity and that, therefore, it has not resulted in any dramatic change in the standing of sub-national entities, as is also visible in the case law to date. On the other hand, it underlines the EU’s ambivalent attitude towards sub-national entities, and national institutional structures generally, and calls for the implementation of pragmatic solutions to improve the functioning of the EU’s multilevel governance structure. Constitutional identity, European Union, sub-national entities, regions, regional blindness
{"title":"National Constitutional Identity and Its Regional Dimension Post-Lisbon as Part of aGeneral Trend Towards Multilevel Governance Within the EU","authors":"D. Fromage","doi":"10.54648/euro2021023","DOIUrl":"https://doi.org/10.54648/euro2021023","url":null,"abstract":"The Lisbon Treaty brought about a reform of the ‘identity clause’ now contained in Article 4(2) Treaty on European Union (TEU). Among other things, it introduced a specific reference to the local and regional dimension of Member States’ national identities. This article assesses what this new provision implies and how it was used by courts during the first decade following the entry into force of the Lisbon Treaty. This allows conducting a general reflection on the role and standing of regions within the EU under that Treaty. This article claims that, on the one hand, the specific mention of the local and regional dimension was already inherent to Member States’ national identity and that, therefore, it has not resulted in any dramatic change in the standing of sub-national entities, as is also visible in the case law to date. On the other hand, it underlines the EU’s ambivalent attitude towards sub-national entities, and national institutional structures generally, and calls for the implementation of pragmatic solutions to improve the functioning of the EU’s multilevel governance structure.\u0000Constitutional identity, European Union, sub-national entities, regions, regional blindness","PeriodicalId":43955,"journal":{"name":"European Public Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2021-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48754205","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}
Article 4(2) Treaty of the European Union (TEU) has not played any autonomous role up to now. Cases involving that provision have not been handled differently by the Court than cases involving derogations to free movement. In this article, after an analysis of the existingcase law on Article 4(2) TEU, I make the case for a bolder and exceptional use of Article 4(2) TEU where genuine national constitutional identity claims (NCI claims) directly clash with provisions of EU law. I provide a normative framework of analysis to identify genuine NCI claims and determine how the Court should address them. ‘Strait is the gate and narrow is the way’ is certainly a relevant metaphor to capture the possibility for genuine NCI claims to be successful. In view of its own mission and constraints, the Court is only to accept well motivated, narrow claims that are strictly based on crucial and distinctive features of national law that are embedded in the national Constitution and do not run against the own constitutional identity of the Union. Member State constitutional identity, Article 4(2) TEU, Extraordinary function, Constitutional conflicts, Instructions for use, Constitutional courts, Court of Justice, Balancing between national identity and fundamental rights, European Union constitutional identity, National and European constitutionalism
{"title":"Successfully Articulating National Constitutional Identity Claims: Strait Is the Gate and Narrow Is the Way","authors":"François-Xavier Millet","doi":"10.54648/euro2021027","DOIUrl":"https://doi.org/10.54648/euro2021027","url":null,"abstract":"Article 4(2) Treaty of the European Union (TEU) has not played any autonomous role up to now. Cases involving that provision have not been handled differently by the Court than cases involving derogations to free movement. In this article, after an analysis of the existingcase law on Article 4(2) TEU, I make the case for a bolder and exceptional use of Article 4(2) TEU where genuine national constitutional identity claims (NCI claims) directly clash with provisions of EU law. I provide a normative framework of analysis to identify genuine NCI claims and determine how the Court should address them. ‘Strait is the gate and narrow is the way’ is certainly a relevant metaphor to capture the possibility for genuine NCI claims to be successful. In view of its own mission and constraints, the Court is only to accept well motivated, narrow claims that are strictly based on crucial and distinctive features of national law that are embedded in the national Constitution and do not run against the own constitutional identity of the Union.\u0000Member State constitutional identity, Article 4(2) TEU, Extraordinary function, Constitutional conflicts, Instructions for use, Constitutional courts, Court of Justice, Balancing between national identity and fundamental rights, European Union constitutional identity, National and European constitutionalism","PeriodicalId":43955,"journal":{"name":"European Public Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2021-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46521419","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 Nordic countries are known as frontrunners of transparency, and the European Union’s transparency regime owes many of its ideals, if not the reality, to Northern influences. Nonetheless, although perceived as a transparency-enhancing measure, none of the Nordic countries has adopted lobbying regulation. Assessing the Nordic parliamentary and governmental debates from the 1980s onwards, this article offers an analysis of a complex relationship between legislative transparency and lobbying regulation in the five countries. The Nordic countries have different ideas of whose transparency lobbying regulation is meant to increase. In Sweden, Denmark and Norway, lobbying regulation is seen as a policy measure to enhance transparency about lawmakers’ activities, while the Icelandic and Finnish debates consider lobbying regulation as a way to increase information about the role lobbyists play in law-making. Although all the Nordic countries exhibit varying degrees of an elitist small country mentality where lobbying regulation would interfere with ‘informal governance’ by way of Sunday dinners and hot baths, the difference in transparency emphases is crucial. It helps to understand the divergent Nordic policy paths and to contextualize both EU and Member State discussions on lobbying regulations and transparency. EU Courts, Right to trial within a reasonable time, Excessive duration of court proceedings, Effective remedies, Damages liability of the EU, Economic harm, Non-material harm, Conditions for liability, Requirements for establishing harm and causation, Significance for EU damages liability law
{"title":"Sunday Dinners and Hot Baths in a ‘Wild Wild North’? The Nordic Discussions on Lobbying Regulation and Implications for the EU Transparency Agenda","authors":"Emilia Korkea‐aho","doi":"10.54648/euro2021016","DOIUrl":"https://doi.org/10.54648/euro2021016","url":null,"abstract":"The Nordic countries are known as frontrunners of transparency, and the European Union’s transparency regime owes many of its ideals, if not the reality, to Northern influences. Nonetheless, although perceived as a transparency-enhancing measure, none of the Nordic countries has adopted lobbying regulation. Assessing the Nordic parliamentary and governmental debates from the 1980s onwards, this article offers an analysis of a complex relationship between legislative transparency and lobbying regulation in the five countries. The Nordic countries have different ideas of whose transparency lobbying regulation is meant to increase. In Sweden, Denmark and Norway, lobbying regulation is seen as a policy measure to enhance transparency about lawmakers’ activities, while the Icelandic and Finnish debates consider lobbying regulation as a way to increase information about the role lobbyists play in law-making. Although all the Nordic countries exhibit varying degrees of an elitist small country mentality where lobbying regulation would interfere with ‘informal governance’ by way of Sunday dinners and hot baths, the difference in transparency emphases is crucial. It helps to understand the divergent Nordic policy paths and to contextualize both EU and Member State discussions on lobbying regulations and transparency.\u0000EU Courts, Right to trial within a reasonable time, Excessive duration of court proceedings, Effective remedies, Damages liability of the EU, Economic harm, Non-material harm, Conditions for liability, Requirements for establishing harm and causation, Significance for EU damages liability law","PeriodicalId":43955,"journal":{"name":"European Public Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49239651","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 January 2017, the European Union was ordered to pay damages to two companies because of excessively long court proceedings before the General Court, the first time such an order had been made. At this point, a number of EU Courts’ judgments that address damages liability for excessively long court proceedings can be found. According to the European Court of Justice, a damages claim is an appropriate and effective remedy in a case of a failure to adjudicate within a reasonable time. This contribution systematizes and analyses recent EU level case law regarding the excessive duration of court proceedings with damages as a remedy. A particular emphasis is placed on examining the relevant case law against the backdrop of existing EU damages liability law. We particularly study how the conditions of harm and causation are interpreted and applied in the EU level ‘excessive duration cases’. We discuss and summarize the theoretical and practical implications of the excessive duration liability case law, as well as highlight particularly interesting details from recent judgments. EU Courts, Right to trial within a reasonable time, Excessive duration of court proceedings, Effective remedies, Damages liability of the EU, Economic harm, Non-material harm, Conditions for liability, Requirements for establishing harm and causation, Significance for EU damages liability law
{"title":"Damages Liability of the EU for Harm Caused by Excessive Duration of Court Proceedings","authors":"K. Havu, Suvi Kurki-Suonio","doi":"10.54648/euro2021014","DOIUrl":"https://doi.org/10.54648/euro2021014","url":null,"abstract":"In January 2017, the European Union was ordered to pay damages to two companies because of excessively long court proceedings before the General Court, the first time such an order had been made. At this point, a number of EU Courts’ judgments that address damages liability for excessively long court proceedings can be found. According to the European Court of Justice, a damages claim is an appropriate and effective remedy in a case of a failure to adjudicate within a reasonable time. This contribution systematizes and analyses recent EU level case law regarding the excessive duration of court proceedings with damages as a remedy. A particular emphasis is placed on examining the relevant case law against the backdrop of existing EU damages liability law. We particularly study how the conditions of harm and causation are interpreted and applied in the EU level ‘excessive duration cases’. We discuss and summarize the theoretical and practical implications of the excessive duration liability case law, as well as highlight particularly interesting details from recent judgments.\u0000EU Courts, Right to trial within a reasonable time, Excessive duration of court proceedings, Effective remedies, Damages liability of the EU, Economic harm, Non-material harm, Conditions for liability, Requirements for establishing harm and causation, Significance for EU damages liability law","PeriodicalId":43955,"journal":{"name":"European Public Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46836539","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}
Inspired by the recent activation of the ultra vires review of the Federal Constitutional Court of Germany, the article analyses one of its restrictive elements: the concept of obviousness and its concretization through objective arbitrariness. These concepts are used with good intentions insofar as the ultra vires review requires some conceptualization of deference. But they are incapable of fulfilling this purpose: they disregard the expressive function of law, grant either too much or no deference, and are incompatible with each other. Instead, the substantive standards of structural significance and openness, combined with the procedural rule of unanimity, could serve the purpose of deference in a better and less conflictual way. Deference, Ultra Vires Review, Unanimity, Expressive Function of Law, Arbitrariness, Obviousness, Structural Significance, Openness, Control of Integration, Decision of the Federal Constitutional Court of Germany of 5 May 2020
{"title":"Ambivalence of Obviousness: Remarks on the Decision of the Federal Constitutional Court of Germany of 5 May 2021","authors":"Philip M. Bender","doi":"10.54648/euro2021013","DOIUrl":"https://doi.org/10.54648/euro2021013","url":null,"abstract":"Inspired by the recent activation of the ultra vires review of the Federal Constitutional Court of Germany, the article analyses one of its restrictive elements: the concept of obviousness and its concretization through objective arbitrariness. These concepts are used with good intentions insofar as the ultra vires review requires some conceptualization of deference. But they are incapable of fulfilling this purpose: they disregard the expressive function of law, grant either too much or no deference, and are incompatible with each other. Instead, the substantive standards of structural significance and openness, combined with the procedural rule of unanimity, could serve the purpose of deference in a better and less conflictual way.\u0000Deference, Ultra Vires Review, Unanimity, Expressive Function of Law, Arbitrariness, Obviousness, Structural Significance, Openness, Control of Integration, Decision of the Federal Constitutional Court of Germany of 5 May 2020","PeriodicalId":43955,"journal":{"name":"European Public Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41789772","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":"Book Review: Thomas Bustamante & Thiago Lopes Decat (eds), Philosophy of Law as an Integral Part of Philosophy: Essays on the Jurisprudence of Gerald J Postema, Oxford: Hart Publishing. 2020","authors":"Guilherme Pratti","doi":"10.54648/euro2021018","DOIUrl":"https://doi.org/10.54648/euro2021018","url":null,"abstract":"","PeriodicalId":43955,"journal":{"name":"European Public Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46567666","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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