This article examines the extent to which the European Court of Justice (ECJ) in its interpretation of EU Private International Law (PIL) rules purposively implements principles and values of EU integration and thereby constitutionalises these rules. To this end, possible vectors of constitutionalisation, such as the quest for autonomy, the mutual trust principle, market integration and fundamental rights are scrutinised. The article concludes that, despite topical examples, there is, as of yet, no pervasive constitutional reading of EU PIL. By applying its characteristic techniques of EU law interpretation also in this field, the ECJ further communitarises the practice of private international law. It thereby underlines, and builds upon, the fact that PIL in the EU Member States has become EU law. The future pertinence of the constitutionalisation label, however, will turn on whether the constructive reading of EU PIL provisions effectively implements genuine constitutional principles of the European legal order.
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Edited by Lan Nguyen, Niall O'Connor, Darren Harvey and Darragh Coffey
Leonie M Huijbers
As a result of the emphasis on subsidiarity during the reform process of the European Court of Human Rights and the adoption of Protocol 15 to the European Convention on Human Rights, the Court is said to have entered an ‘age of subsidiarity’. At the same time, scholars have noted a procedural trend in the case law of the Court, referring to the development of procedural requirements and its increased use of procedural-type review. The latter means that the Court looks into the quality, fairness and regulation of the decision-making processes of the national legislative, executive or judicial authorities to determine whether there has been a violation of the Convention. There are indications that both developments – the increased emphasis on subsidiarity and the Court's procedural turn – are related. This raises the question whether procedural-type review is indeed an appropriate method for the Court in this age of subsidiarity. This article addresses this question and argues that the answer to it is more intricate than generally thought. The complexity lies in the fact that the principle of subsidiarity pulls the Court into different directions, as negative subsidiarity requires it to take a deferential position and positive subsidiarity requires it to give protection to Convention rights when states have failed, but also because procedural-type review is a multifaceted approach. The procedural approach relates to a variety of procedural requirements developed by the Court – relating to procedural regularity, procedural rationality and procedural fairness – and the various ways it has applied procedural-type review. By connecting the aspects of subsidiarity with the different elements of the Court's procedural approach, this article aims to provide a more comprehensive and profound understanding of the appropriateness of the Court's procedural turn in this age of subsidiarity.
This article assesses how shifts in the institutional balance transform the European Union (EU) constitutional order. Significant developments including the simultaneous rise of the majoritarian European Parliament (EP) and non-majoritarian European agencies exemplify such transformations, raising fundamental issues concerning the role such actors play in the EU. This study shows how different processes – from formal Treaty provisions and Court of Justice of the European Union jurisprudence to extra-legal processes within and beyond the Treaty – shape the role and function of both actors, thereby potentially shifting the institutional balance in a manner not envisioned by the Treaty. These questions about the impact of the institutional balance persist in the aftermath of the euro-crisis. Accordingly, this contribution critically examines such transformations to investigate whether a republican model can democratically legitimate the rise of both actors. This article contends that the rise of both actors is legitimated if the necessary ex-ante and ex-post legal and political controls linked with republican governance are in place to limit the ability for either to exercise public power in a dominating or arbitrary fashion.
This republican account understands that each societal force reflects competing societal interests, constitutional values, and legitimacy claims. From this perspective, the inclusion of a plurality of societal forces in EU governance is essential for obtaining republican objectives linked to the public good, including self-governance, non-domination, and non-arbitrariness. Thus, the participation of both the EP and European agencies – each with its own version of the public good and how best to achieve it – is essential to ensure the multi-actor creation of constitutional norms geared toward the public good. This article concludes that an intensification of republicanism can secure an institutional balance that transforms the EU constitutional order in a manner that enhances the legitimation of the EU in the wake of the euro-crisis.
Catherine Warin and Zheni Zhekova
The EU increasingly uses non-binding agreements as part of its response to the ongoing migration crisis. The preparation and implementation of such agreements are conducted in imprecise circumstances in terms of institutional responsibilities and they are subject to limited, if any, parliamentary control and judicial review. Taking the topical Afghanistan–EU Joint Way Forward as a focus point, this article raises the question whether the increasing recourse to non-binding instruments may be interpreted as a way of circumventing the constitutional allocation of powers to and within the EU. It highlights substantial issues related to the protection of fundamental rights and the allocation of the EU's financial resources stemming from the Joint Way Forward. It shows a number of legal drawbacks to this trend of using such non-binding instruments and argues in favour of more transparency and procedural clarity in their negotiation and implementation.
Rob van Gestel and Jurgen de Poorter
The preliminary reference procedure has long been envisaged as a judicial dialogue between the Court of Justice of the European Union (CJEU) and national courts. However, in reality the relationship between the courts appears to be closer to a relationship of living apart together than to a happy marriage between equal partners. In this contribution, we study the use of so-called provisional answers as a means for national supreme administrative courts to send signals to the CJEU and to start a dialogue about the proper interpretation of EU law. Our analysis of case law and survey results, combined with the outcomes of interviews with judges from ten of the highest administrative courts and with judges and Advocate Generals from the CJEU, reveals there are both practical reasons and fundamentally different views on judicial law making behind the lack of dialogue. On a deeper level, there appears to be a lack of mutual trust that prevents supreme administrative courts from making better use of provisional answers to inform the CJEU and for the CJEU to take the supreme administrative courts more seriously.
This article, first delivered as the keynote at the ‘Transforming Institutions’ conference, discusses the increasing relevance of relations between different international organisations. It provides a discussion of what sort of forms these relations can take, and of the relevant legal questions that arise, relating to the form of instruments, treaty-making powers and procedures, accountability for joint activities, and related issues. It concludes by providing a preliminary assessment in light of some of the relevant theoretical literature.
Anastasia Karatzia and Menelaos Markakis
This article examines the transformation of the role of the European Commission and the European Central Bank (ECB) in the context of the Economic and Monetary Union (EMU), from institutions acting within the EU institutional framework, to actors taking on new tasks in the realm of international law as part of the structure of the European Stability Mechanism (ESM). It expounds the legal framework applying to the two institutions in the ESM by analysing the currently applicable legislation as well as recent case law of the Court of Justice of the European Union (CJEU) (Ledra and Mallis). It argues that the applicable legal framework remains underdeveloped and unclear, especially with regard to the obligations incumbent on the ECB in the ESM, which have not yet been examined by the EU courts. Exploring the main challenges resulting from the ambiguity of the tasks and obligations conferred on the two EU institutions in the ESM, the article argues that all EU law applies in principle to the activities of the EU institutions in the ESM. It then shifts the focus to political and legal accountability, the emphasis being on direct and indirect actions before the CJEU, including the vexed issue of liability of the EU institutions for damages caused by their actions in the ESM. The article concludes with a forward-looking assessment in light of the Five Presidents’ Report on Completing the EMU, which stipulates that the governance of the ESM should be integrated within the framework of EU law. The article questions whether a future incorporation of the ESM's governance in EU law could address any of the challenges resulting from the current uncertainty about the role and potential liability of the Commission and the ECB for their actions in the ESM, and makes a number of recommendations as to how the ESM should be incorporated into EU law.