Showing papers in "European Public Law in 2013"

Human Dignity in Europe: A Foundational Constitutional Principle

Abstract: Human dignity has become one of the central issues in the international discussion of human rights and constitutionalism. It attracted special attention with the celebration of the sixtieth anniversary of the 1948 Universal Declaration of Human Rights adopted by the United Nations and, more recently, scholars have sought to explore human dignity's legal meaning in more theoretical terms, as well as to survey and catalogue its different manifestations across a number of legal systems worldwide. This article contributes to the international debate about human dignity's legal significance by focussing on another dimension, namely the ways in which the concept is understood and used in European constitutionalism, where it has been deployed since the end of World War II and its importance has become undisputed.

The crisis of democracy in east central Europe : the 'new constitutionalism' in Hungary

Abstract: 'Above all, being a democrat means not being afraid; not being afraid of people with different opinions, different mother tongues, or people from different races…not being afraid of all those imaginary fears which are only made real by our fear of them.'Istvan Bibo, The Misery of the Small States of Eastern Europe (1946)Drawing on the work of the twentieth century Hungarian political scientist, Istvan Bibo, this article offers a critical examination of Hungary's new Constitution, or Fundamental Law, which entered into force in January 2012. Hungary's Fundamental Law and various associated legal texts have been heavily criticized by the European Union (EU) Parliament, the Organization for Security and Cooperation in Europe (OSCE), the Council of Europe's Venice Commission, the US State Department, major human rights NGOs and foreign as well as Hungarian scholars. This article argues that the constitutional regime that operated in Hungary from the end of communist rule until January 2012 represented a broadly satisfactory framework for the consolidation of liberal democracy, the rule of law and the protection of human and minority rights. By contrast, the Fundamental Law, related legal instruments and various policies of the present government have diluted or threatened essential democratic freedoms and have resulted in the removal of many of the checks and balances that previously operated within the Hungarian constitutional system. These regressive measures suggest that elements of what Istvan Bibo described as the 'deformed' political culture of pre-World War II Hungary have reasserted themselves.

Regional Governance, Subsidiarity and Accountability within the EUs Multi-Level Polity

Abstract: The Treaty of Lisbon addressed the status of regional governance and includes several provisions designed to improve its constitutional relevance. Most importantly Protocol 2 TEU formally engages the Committee of the Regions in the task of subsidiarity monitoring within the Community method. In addition, Articles 5 and 6 TFEU seek to involve regional actors in the process of soft law, but this raises questions of competence creep, legitimacy and accountability. This article analyses participation by the Committee of the Regions in subsidiarity monitoring and the extent to which this may improve the accountability of both the Community method and soft law. The article also examines the accountability paradox that has accompanied the growth of regional autonomy in the EU. Though subsidiarity monitoring may improve legislative legitimacy, the expansion of regional autonomy has created a disjuncture between the exercise of political authority by regions and their accountability for the implementation of EU law.

A General Law on Administrative Procedure, Legislative Competence and Judicial Competence

Abstract: The desirability having a general law on administrative procedure has been debated in the past and has now come back on the agenda, in part at least because of support from the Committee on Legal Affairs of the European Parliament If such a law, or something equivalent thereto, is developed there will be a range of issues to address concerning its scope and content This article considers the rationale for such an instrument, and the type of subject matter that might be included The principal focus is however on the logically prior issue as to the competence to enact such an instrument This was questioned in the pre-Lisbon world, and question marks remain post-Lisbon It will be seen moreover that resolution of this question raises interesting and important issues concerning the relationship between legislative and judicial competence within the EU

Counter-Terrorism and European Human Rights since 9/11: The United Kingdom Experience

Abstract: This article explores the ways in and routes through which European human rights norms (Convention Rights) have had some shaping effect on United Kingdom counter-terror powers since 9/11. It considers decisions of the European Court of Human Rights inGillan v. United Kingdom,A and Others v. United Kingdom, Othman (Abu Qatada) v. United Kingdom and Babar Ahmad and Others v. United Kingdom, as well as a range of United Kingdom court decisions on control orders and deportation with assurances. In doing so, it casts light on a developing but still fragile human rights' culture in the United Kingdom and identifies European human rights norms as at their most influential when in line with other political imperatives.

Some Remarks on the Pending Constitutional Change in the Grand Duchy of Luxembourg

Abstract: In the history of constitutional changes in Europe, the making of a new constitution is often linked to violent incidents like a revolution, a coup d'etat or a war. That is why the change of the constitution was mostly preceded by a change of the holder of the constituent power. The Grand Duchy of Luxembourg, however, is currently engaged in a process of constitution making in compliance with the revision procedure established by the existent document. The Constitution of the Grand Duchy, one of the oldest constitutional documents in Europe still in force, is undergoing a far-reaching revision aiming at a general overhaul.1 According to the parliamentary committee in charge, this revision shall finally give birth to a 'new' constitution, meaning that a modified and updated edition of the constitution shall be published in the national official journal (Memorial). The revised text will then be considered as the Constitution of 2013 or, more likely, of 2014. The Constitution of 1868 is to be repealed. After the previous charters from 1841, 1848 and 1856 and the present text from 1868, it would thus become the fifth constitution of the Grand Duchy. As constitutional history also shows, this would not be the first time that Luxembourg adopts a new constitution following the formal amendment procedure foreseen by the previous document.2 Local politicians and lawyers seem to consider that the academic distinction between 'constitution making' by the will of an original pouvoir constituant and 'constitutional revision' through a parliamentary procedure prescribed by the constitution itself represents rather a gradual difference than a fundamental one.A number of good reasons convinced the Committee on Institutions and Constitutional Affairs of the Chamber of Deputies to introduce on 21 April 2009 a revision proposal aiming to modify and re-arrange the out-dated Constitution of 1868. While several initiatives for a general revision of the Constitution have been undertaken since the 1970s, none has been successful. Only fractional revisions were adopted in a century and a half. Between 1919 and 2009, no less than thirty-four amendments are listed, the last dating from 12 March 2009. Having occurred at different times and on various aspects, they have certainly undermined the coherence of the initial text. Nonetheless, the Constitution still includes a majority of provisions dating back to its origins.The main reasons put forward by the drafters of the revision proposal are: first, to modernize a terminology somewhat out-dated; second, to adapt the legal text to the political reality by re-writing the constitution and make it coincide with the 'living constitution' as reflected in the functioning of institutions, and third, to incorporate into the written constitution provisions relating to succession to the throne currently contained in a legal document of uncertain value, namely the Family Compact of the House of Nassau (Nassauischer Erbfolgeverein) of 1783.Almost four years after its launch, this amendment procedure, still far from being accomplished, is now, in February 2013, in a sufficiently advanced stage to allow some general commentaries. Given the limited format of this country report, the following remarks will focus on a brief presentation of the applicable revision procedure and a provisional scrutiny of some of the most substantial amendments under discussion.

The ECJ as the Guardian of the Hungarian Constitution: Case C-286/12 Commission v. Hungary

Abstract: Many feared that by adopting the new Hungarian fundamental law a 'light' version of constitutionalism will come into effect, a new constitutional system where classical understandings of individual liberty and separation powers are not valid anymore. Many areas spring to one's mind to demonstrate these concerns: data protection, media legislation or the very case in question, the early retirement of judges. Interestingly, both the European Court of Justice (ECJ) and the Hungarian Constitutional Court ruled on this issue, and as the case presents an interesting co-operation or co-dependence of Member State and European constitutional order both decisions will be portrayed.

Constitutional Dialogue between Courts and Legislatures in the European Union: Prospects and Limits

Abstract: The concept of 'constitutional dialogue' has become a focal point of US and Canadian public law scholarship This concept sees judicial review not as a check on majority preferences but instead as part of a deliberation between the legislative and judicial branches over how constitutional commitments and general political objectives can be integrated This article will explore the prospects and limits of developing the dialogue concept in the context of the present-day European Union (EU) The article will present a two-part argument: While the EU's political and legal diversity make the idea of a 'shared responsibility' for constitutional interpretation between judges and policy-makers normatively attractive, the existing institutional structure of the Union limits the incentives necessary for legal and political actors to constitutionally engage

The Margin of Appreciation Test and Balancing in the Area of Freedom Security and Justice: A Proportionate Answer for a Europe of Rights?

Abstract: The area of freedom security and justice (AFSJ) is currently one of the most dynamic EU integration areas. Largely absent from the debate on mutual recognition, which is the main regulatory practice in this policy field, within the AFSJ there has been the need to ensure a better balance between security focused instruments and due process rights in national courts. This paper discusses the impact of a proportionality test in the AFSJ and the function of the European Court in this balancing exercise. In addition the paper discusses the consequences, dangers and merits, of applying a margin of appreciation test in this area and what the EU can learn from Strasbourg with regard to the adequate protection of human rights.

The Case for Enshrining a Right to Environment within EU Law

Abstract: Since the Single European Act in 1987, the European Union has had increasing competence to legislate on environmental matters. However, while the EU must now integrate environmental protection requirements into the definition and implementation of its policies and activities, there is no explicit protection of a 'right to environment' within Union law. The absence of such a right is unsurprising, as the debate on the existence and applicability of environmental rights is both recent and unresolved.

Education and Religious Symbols in the United Kingdom, Italy and Spain: Uniformity or Subsidiarity?

Abstract: The argument about the display of religious symbols in schools is ostensibly about the extent to which they might have any detrimental effect on impressionable minors. However, its more fundamental importance is as part of the broader debate about the place of religion in wider society: both the extent to which personal religious preferences should be accommodated and the degree to which liberal democracies may legitimately exhibit any kind of overt religious character - and both are fundamental to the issue of social cohesion.

A Separation of Powers Approach to Non-efficiency Goals in EU Competition Law

Abstract: Certain provisions of the TFEU call for the integration of non-efficiency goals, like health and environmental protection, into the implementation of EU policies and activities, including, it would seem, competition law. This article argues that courts and other adjudicators applying EU competition law should be pre-empted from taking cognisance of a non-efficiency gain once the State in which competition is restricted has put measures in place to achieve the objective in question, even if those measures are not the most protective possible. This approach is explanatory of recent and older decisions, and can be reconciled with the Commission's 2010 Horizontal Cooperation Guidelines. Sanctioning a restriction of competition to achieve either efficiency or non-efficiency gains is argued to approximate to the exercise of distributive justice. Unlike constitutional balancing generally, the courts are inferior to other branches of government, even to agencies, in the exercise of distributive justice for democratic and institutional-design reasons. However, different considerations apply to efficiency gains which government is generally unable to secure throughout the economy.

One Ombudsman (EU) or Many (UK)? Interpreting the Singularity of Actors in the EU

Abstract: This paper aims at explaining a paradox. At the European Union (EU) level, a vast entity often characterized by diversity and multilevel governance, one Ombudsman operates, based in Strasbourg. On the contrary, in certain EU Member States, including the UK, which will serve as a case-study here, a plethora of ombudsmen has emerged, an 'ombudsmania' according to some scholars, which extends to the private sector. It will be argued that this asymmetry may be explained if we compare the constitutional priorities further to which the Ombudsman (or the Ombudsmen) was (were) created in the respective polities. The paper finds that in Europe, the Ombudsman and his/her maladministration control was mainly activated to bring the citizens closer to the EU and to bridge the democratic gap; in this context, the role of the Ombudsman cannot be dissociated from the strengthening of the European demos. In the UK, the goal was to increase efficiency in administration by addressing maladministration; this has been achieved via a variety of ombudsmen, frequently operating under an explicitly defined mandate, offering specialized knowledge and expertise. The singularity or plurality of actors may be seen as corresponding to two different ombudsman 'models' in a given polity. Finally, the creation of the European Ombudsman in accordance with the abovementioned constitutional priority could serve as further evidence of the particularity of the polity when compared to international organizations.

A right to cultural identity in a UK Bill of Rights

Abstract: This article considers the possible inclusion of a right to cultural identity in a UK Bill of Rights, highlighting the centrality of culture to debates about the accommodation of diversity in the UK as well as the increased recognition of the importance of cultural rights under international human rights law. The article argues that the inclusion of a minimal minority rights guarantee based on Article 27 of the International Covenant on Civil and Political Rights 1966 would be an innocuous step that would provide the impetus needed for greater cultural sensitivity in decision-making processes in a way that acknowledges the centrality of culture to people’s identities and everyday lives. It claims that the inclusion of such a right alongside a freestanding right to equality would provide a useful addition to the rights currently recognised as ‘Convention rights’ under the UK Human Rights Act 1998. This is argued on the basis of both international and domestic case law on culture identity, including opinions of the UN Human Rights Committee, developments in European human rights law and experiences in other jurisdictions.