Friday 18 April 2014

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The EU is governed by seven institutions: the European Parliament, the European Council, the Council of the European Union (the Council); the European Commission, the Court of Justice of the European Union, the European Central Bank and the Court of Auditors.

 

The EU and Contemporary Democracy

Posted by on 17/04/14

The notion of democracy derives from ancient history; it originates from the Greek words dêmos and kratos, which means ‘rule of the people’. Its modern definition lies in the eye of the beholder since nations have various interpretations on what makes a society ‘democratic’.

But generally, a democracy, according to Wikipedia, is “a form of government in which all eligible citizens participate equally—either directly or indirectly through elected representatives—in the proposal, development, and creation of laws.

In the EU, a settled definition on democracy does not exist per se, but certain essential elements of democracy do exist within its treaties that altogether build a European perspective on democracy that includes attachments to several principles, among them include liberty, respect for human rights, fundamental freedoms and the rule of law. Thus, to consider an entity like the EU democratic, it must comply with those given principles.

Democracy was the ideology that reigned supreme in the past century that still influences today’s society, but rising tensions in nations produced new problems and challenges that are currently being faced today. The Economist tackled the issue with a 6-page special essay published last month and argued that one reason for the problems is due to the economic crisis of 2007/2008 and its handling.

The weekly newspaper contended: “The damage the crisis did was psychological as well as financial. It revealed fundamental weaknesses in the West’s political systems, undermining the self-confidence that had been one of their great assets. Governments had steadily extended entitlements over decades, allowing dangerous levels of debt to develop, and politicians came to believe that they had abolished boom-bust cycles and tamed risk. Many people became disillusioned with the workings of their political systems—particularly when governments bailed out bankers with taxpayers’ money and then stood by impotently as financiers continued to pay themselves huge bonuses.

This is probably why, despite the EU’s status as a true democracy, it still produces problems such as economic instability, political distrust and bad governance.

All these factors lead to the notion of the EU having a “democratic deficit”, the concept that suggests that EU governance in some way lacks democratic legitimacy, since it implies the perceived lack of information given to the average citizen and the lack of accountability of EU institutions.

The democratic deficit also refers to the EU’s complex structure, which produces problems due to the fact that the EU is more than an intergovernmental organization yet less than a federal state, making it impossible to reconcile the principle of equality of states (as purportedly upheld by international organizations) and the principle of equality of citizens (as purportedly upheld by nations).

The answer in solving these issues is reform; Eurosceptics argue that the EU needs to reform itself by reducing its powers and letting member states decide what’s best. Such an idea, as I argued in my previous essays, is regressively counterproductive and undesirable.

Pro-Europeanists, on the other hand, insist that what the EU needs is institutional reform, particularly in giving the EU more powers based on federal principles to fix the Union’s civil distrust concerning its political disorganization.

But what everyone can agree to is this: democracy needs an update; The Economist argued that elected governments must regard the idea as something powerful yet imperfect, and that transparency, developed checks and balances regarding the governments’ powers and the adequate control of the emerging idea of globalism and the popular trend of localism are the essential factors in developing and reinforcing a healthy democracy in the 21st century.

https://i.imgur.com/iHopmzf.jpg

Courtesy of Wikipedia Commons

 

Never again.

Posted by on 16/04/14
As I am writing this I am listening to the speeches in the EP plenary in Strasbourg, on the WW I and lessons of the past as we look to the future. I’ve been pondering on writing on this subject for the past few months, as the subject is so vast and incredibly complex, that [...]

Foucault, the European Idea and Greece.

Posted by on 09/04/14

Foucault distinguishes between despotic power and the limited state (governmentality, physiocratic economic liberalism, economic free market liberal criticism of Nazism in the Ordoliberalismus group), criticizing the state which claims to unify the nation/peopleo within itself and defending economic, societal and personal space outside state control (Barry Stocker: Political theory and the Idea of Europe, Foucault against Habermas). Foucault was a child of the Enlightnement. He supported an alternative concept to disciplinarity.

Foucault had been influenced by a Machiavellian concept of governance. He insisted that the new idea of government concerning large populations is a permanent coup d’ etat because the new form of the state ( whether it is called a monarchy or a parliamentary democracy) exercises its power over the other social and political institutions.

The emergence of a European Polity can not be founded on transcedental unity through intergovernmental structures. “Macht” is legitimated via violence, even in transnational structures like European Union.

The role of the global market economy which reflects a massive change towards the spheres of politial, society, and economy has influenced a lot the emergence of the idea of a European institutional Unity.

Foucault assures us that the enhancement of the European Union is bringing us waves of strong reaction. The desirable consensus that is difused among the atmosphere of the European Institutions does not reflect the political reality.

In this frame, Greece is not facing a political infection by its European partners but a Schmittian attack of an enemy at the political and economical level.

 

Bibliography

  • Foucault Michel, The Order of Things, London: Routledge, 2001
  • Hayek Friedrich August, The Road to Serfdom, London: Routledge, 1944
  • Rwals John, A Theory of Justice, Cambridge, MA: Harvard University Press, 1971
  • Schmitt Carl, The Concept of the Political, Chicago: Chicago University Press, 2007

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Jonathan Holslag: ‘Europe will be the world’s playground’

Posted by on 08/04/14

It happens rarely that I write ‘Dear Mr/Mrs…’ to people younger than me. But with Professor dr. Jonathan Holslag, that is the case. He is only 32 years old, professor of international politics at the Free University of Brussels since 2011 (!) and has written three academic books, mainly on China, Asia and Europe. After the interview I told him one of my heroes is Robert Kaplan. Holslag responded: ‘He’s a good friend of mine. We read our work to each other.’

I was notified on Holslag’s existence by Luuk van Middelaar, the speech writer to Herman Van Rompuy, who is also a hors categorie of his generation. It took me months to get a date for the interview, because Holslag was busy with the preparation of his latest book, The Power of Paradise. Which deals with the future of Europe and our relations with Asia. The book is out since two months – first as a Dutch version – and has already sold nearly 10,000 copies, which is extremely good for the Dutch-language book market and especially for political non-fiction.

Europe isn’t the prime focus of research for the young professor. ‘My career has developed quite capriciously. Initially I started in Africa, working on African affairs like rebel groups in Congo, and then I was almost forced to start working on Asia by my supervisor.’ But now his prism turned to the old continent. ‘By traveling extensively to the Asian region, also by talking to a lot of decision makers and business folks from Asia, it really became clear that Europe is in quite an uncomfortable position nowadays. But also in terms of perceptions it is going down rapidly.’

Holslag

That perspective from the East instigated Holslag to ponder about the question how bad our position is, as a market, as a society, as a political constillation, as an international actor. And will our ‘fragile European construction’ be altered further by ‘a turbulent and uncertain international order?’

The fourfold crisis of Europe
‘It has been said many times that Europe was in a death struggle and that it was reaching its terminal stage,’ argues the researcher. ‘Each time Europe came out of those episodes of uncertainty in a stronger way. But this crisis is different. Altogether the world order has changed and it will make it less easy for us to adjust as we did in the past.’ His analysis is one of a fourfold crisis.

  1. The most manifest one is that there is a collective action problem at the European level. Many of the negotiations, very complicated ones, have moved to more discreet technical committees, where national powers are still very blatant and outspoken.
  2. A stark weakening of pragmatic elites, the central parties in the member states. They used to bear the European project. The electoral shift is really sliding to a critical point. The electoral share of the central parties  will become smaller than a colorful array of populist, conservative and extremist parties.
  3. The fraying of the welfare state, as a system of redistributing economic opportunities. The bottom fourty percent of the European population are losing out rapidly in terms of purchasing power and employment opportunities. That reverses the positive current that we witnessed in the last six decades.
  4. The altering of the economic balance of power at our expense. Europe bit by bit becomes less competitive, and more dependent on external debt. Government debt has become the most successful export product of the EU.

Looking beyond these immediate crises, Holslag reckons that the failure of Europe ‘to provide tangible economic opportunities’ is the biggest long term threat. ‘Europe as a political project is not an exception. Like each political project it will only survive if it visibly advances the interests of the majority of its people. And it is no longer able to do that, as the member states are also no longer able to do that.’ But what about all the measures that have been taken in the past years to reform our economies and stabilize the eurozone? ‘I don’t see with the current answers to the crisis, the banking union, some efforts to create new jobs amongst the youth, sufficient reassureances that we will turn the tide. So my prediction is we will slither further down into our legitimacy trap and the EU will fray.’

Afbeelding 1

Europe as a playground, not a player
As we become weaker, the world will take advantage of us, predicts Holslag – who is a realpolitik thinker. ’Friction between the member states will be exploited ruthlessly by the other major powers. That we already see. In the past week the Chinese president came here to visit several member states. In spite of not giving anything in terms of clear concessions, or giving clear gestures to Europe, still all the governments went on their knees, flat on the ground, and they walked over us.’

The way we kowtowed in front of China, bodes ill. In the upcoming power politics between the major powers, ‘Europe is not going to emerge as a player but as a playground,’ thinks Jonathan Holslag. ‘The situation is really gloomy. What the reality bears a lot of resemblance with, is with Italy in the 15th-16th century, the time of Machiavelli and the Liliputer states in Italy. They believed they could use the great powers around them – the Austrians, the French, the Turks – to maintain their position. Whereas in fact the reality showed the opposite. These powers trampled the Italians because they couldn’t agree and form partnerships, cooperation that was solid enough to deflect the ambitions of the others.’

Luckily, the other kids on the playground all have their own issues. ‘I don’t think the world order is characterized by new strong leaders. We are all fragile in our own way. China is struggling, India is at disarray almost, the US is also having serious problems.’

Though we may not be played upon, Europe can expect a very volatile – even violent – world in the 21st century. ‘In such order characterized by fragile powers, there is a greater tendency towards greed, selfishness, free riding, economic power politics, mercantilism, protectionism.’ In such an environment we are bound for trouble. ‘The very tough economic power politics will ultimately merge with the military one. The chance that things spiral out of control is quite large, it will spill over into Europe’s backyard, which is a belt of uncertainty.’ Holslag even thinks that we will see a militarization of space as well as of cyber, and that is just the start.

Afbeelding 7

Sham power politics
In his book the researcher calls for stronger foreign policy by the EU. But as we witnessed in the Ukraine crisis, Europe fails to take a collective stance because the interests of national member states are too different. Holslag is very critical of the policy towards Russia. ‘I am not sure these countries, are playing their national interests. They are departing from very opportunistic, short-sighted interests, not from what basically is for this generation of citizens and the next one. It is sham power politics. It is sham statemanship. It is not real. We see politicians pretending to pursue statecraft but in fact they are selling out the future of their own citizens.’

‘What is missing is an institution in Brussels, a group of officials that is able to turn the natural differences of political orientations into a sort of consensus. What the External Action Service ought to do, is to do less external action, and more internal action. It has to invest in brokering this consensus, it has to explain why it is in the interest of the Swedes to mind the instability in North Africa, why it is in the interest of the Italians to mind the power play in the Arctic, what the Russians are doing there and so forth.’

‘Only by striking that geopolitical consensus and also by explaining it to the people, not just to the governments, we can overcome the problem. We can do this fairly easily. The message of Europe at the brink of drowning, submerging into its new, complicated security environment is a very compelling one, and could even turn the tide of euroscepticism. We have to explain, and I think it is doable, to European people that we are in the same boat. This is a tiny tail piece of Eurasia and we do not have any other option but to stick together.’

Afbeelding 5

Maintaining the paradise
In a world of realpolitik, how can we maintain legitimacy for Europe-wide cooperation and even further integration? Jonathan Holslag is not too worrisome about the supposed lack of democracy. ‘The European Union is one of the most democratic projects in the world, even in world history, certainly given its scale with more than 500 million citizens. It’s not peanuts to organize ourselves in democratic structures that are functional at the same time.’

No, the real problem is in politics. ‘The crisis is more a consequence of a lack of ideas. And that’s what Mill already said: a democracy is a marketplace of ideas. It only functions if there are enough ideas that appeal to the people, and that explain how the political structure benefits to them.’ Therefore Holslag – a researcher, but also one who supports federalist thinking – pleads for a ‘progressive vision’ for Europe. ‘Conservatism and economic orthodox policies for me are not enough. The progressive vision provides in the maitenance of standards of living of Europe’s youngsters, provides in their security, and especially comes up with a project that is more dynamic, that is more competitive, but is still also solidary enough and more pleasant than what we have to do today.’

With the upcoming European elections and the instalment of the new Commission (November), the EU has a big window of opportunity to take this path. Holslag hopes that the change will be primarily in communication. ‘It is all about form. The new Commission has to play politics more vigorously and more actively, we have to have a face of the Commission that is recognizable, and a voice that is convincing, expresses empathy, and an understanding of what is happening in the 28 countries.’

On a policy level, the way forward is to get standards that allow companies to create growth and jobs, ‘without having the fear to be washed away from credit-supported imports from China, and polluted shale gas imported from the US.’

‘The ideas and visions are quite obvious. But we have to learn to play politics with the European institutions and be not afraid to go instantly to the people that we serve. These are not governments in capitals, these are the people on the streets, the 500 million European citizens.’

Watch the interview with Jonathan Holslag here (25 minutes):

http://www.youtube.com/watch?v=8WNchea5WsA

 

EP, EC, EUCO and the people. Elections and Democracy.

Posted by on 03/04/14
As we are closing in on the EP elections to be held in May all across the EU, there are a couple of themes that seem to be on top of anything else: the democratic deficit of EU leadership, voters presence for European Elections and, connected with the first, the election of the new European [...]

Policy of steady hand

Posted by on 03/04/14

There is a motto attributed to a former Chancellor in Germany. Helmut Kohl has become very famous by his politics of the „steady hand“. It may not be very common these days and means to be a reverse model to US but to follow a beaten track, even if all others around you are asking for „Change!“, should be an alternative. Now, Mario Draghi is asked to act in this manner of a steady hand. Ministers of Finance met in Athens on Tuesday and discussed about deflation risks in EU. Referring to forecasts, inflation will rise in Euro-zone about 1 percent in 2014, 1.3 percent in 2015 and 1.5 percent in 2016. This is close to the objective of price stability, ECB is aiming to. Sometimes it’s better to do nothing.

Peine de mort : condamnations et exécutions en 2013. Un rapport de Amnesty international confirme la marche inexorable vers son abolition.

Posted by on 02/04/14

Ce rapport confirme ce qui est signalé habituellement, chaque année, lors de la journée internationale contre la peine de mort : malgré les rechutes de 2013, le nombre de pays appliquant la peine capitale n’a cessé de diminuer depuis 20 ans, et des progrès ont été constatés dans toutes les régions du monde pendant l’année écoulée. Beaucoup de pays qui avaient mis à mort des condamnés en 2012 n’ont procédé à aucune exécution en 2013 ; c’est le cas notamment de la Gambie, des Émirats arabes unis et du Pakistan, dont les autorités ont suspendu le recours à la peine capitale. Le Bélarus n’a exécuté personne non plus, ce qui fait que, pour la première fois depuis 2009, aucune exécution n’a été enregistrée en Europe ni en Asie centrale.

C’est un tout petit nombre de pays qui est responsable de la majorité des exécutions. L’Iran et l’Irak sont à l’origine d’une forte augmentation du nombre d’exécutions dans le monde en 2013, allant à l’encontre de la tendance mondiale à l’abolition de la peine de mort. Le nombre alarmant d’exécutions dans un groupe restreint de pays – principalement ces deux pays du Moyen-Orient – s’est traduit par près d’une centaine d’exécutions supplémentaires dans le monde par rapport à 2012, soit une augmentation de presque 15 %.

Le rythme élevé des exécutions dans certains pays comme l’Iran et l’Irak fait l’objet de scandale. Toutefois, ces États qui s’accrochent à la peine de mort se situent du mauvais côté de l’histoire et sont, en réalité, de plus en plus isolés. Et comme le signale le rapport «  Seul un petit nombre de pays sont responsables de la grande majorité de ces meurtres d’État qui n’ont aucun sens. Ces pays ne peuvent défaire les progrès déjà réalisés de manière générale en faveur de l’abolition. »

Dans beaucoup de pays non abolitionnistes, le recours à la peine de mort est entouré de secret ; aucune information n’est rendue publique et, dans certains cas, la famille du condamné, son avocat ou le grand public ne sont même pas prévenus à l’avance des exécutions. Ces pratiques ne sauraient cher le fait indéniable que la tendance est au progrès  d’où l’appel de Amnesty : il y a 20 ans, 37 pays appliquaient activement la peine de mort. Ils n’étaient plus que 25 en 2004, et 22 en 2013. Seuls neuf pays dans le monde ont procédé à des exécutions tous les ans ces cinq dernières années. La tendance sur le long terme est claire – la peine de mort est en passe de devenir un châtiment du passé. Nous exhortons tous les gouvernements qui continuent de tuer au nom de la justice à instaurer immédiatement un moratoire sur la peine capitale en vue de son abolition ».

En 2013, les méthodes d’exécution utilisées ont été notamment la décapitation, l’électrocution, le peloton d’exécution, la pendaison et l’injection létale. Des exécutions publiques ont eu lieu en Arabie saoudite, en Corée du Nord, en Iran et en Somalie. Des personnes ont été condamnées à la peine capitale pour des crimes n’ayant pas entraîné la mort, tels que des vols avec violence, des infractions à la législation sur les stupéfiants et des crimes économiques, mais aussi pour des actes qui ne devraient même pas être considérés comme des crimes, comme l’« adultère » et le « blasphème ». De nombreux pays ont utilisé le prétexte de « crimes » politiques, définis en termes vagues, pour exécuter des dissidents réels ou supposés.

 

Pour en savoir plus

Rapport de Amnesty internationa: (FR)/(EN)

Dossier peine de mort de Nea say: (FR)

 


Classé dans:DIGNITE HUMAINE, DROITS FONDAMENTAUX

Acting against Euroscepticism

Posted by on 02/04/14

The European Union has unified the continent like never before. It has been instrumental in shaping the progress of its countries and people by promoting fundamental freedoms. But given these upsides, why isn’t the Union more popular amongst its citizens? Numerous reasons exists in giving substance to the criticisms, but three points stand notoriously firm:

  • The structural complexities surrounding the EU
  • The misinformation and the lack of information within the EU
  • The recent recession and its handling by the EU

The first point entails the complex structure of the Union’s political structure; its system is indeed confusing, considering the vast amounts of agencies operating around it that are likely to be unknown to the public. Since it is more than a confederation of states but not a federal entity, the EU’s unique structure is something unprecedented and requires time for the people to comprehend the complexities.

The second point hints to the lack of knowledge EU citizens have regarding the EU, which leads to misconceptions surrounding the institution. It has been suggested to citizens that the Union is a bureaucratic nightmare filled with unelected seniors who enact policies that affect them. Of course, such notions lead to people thinking that they do not have a voice in influencing EU policies. As such misconceptions grow, EU critics in the media take advantage of the citizens’ ignorance to fuel their agenda.

The third point signifies the citizens’ dissatisfaction regarding the recent economic crisis. This has led to the rise of populist anti-EU parties who resort to propagandizing acts, which include national politicians pinning the cause of their country’s crises to Brussels. The increasing support for Eurosceptic parties in the recent months has been alarming; when Eurosceptic politicians gain fame, the development of the Union becomes threatened because their extreme advocacies against EU policies reach the point where they spread nationalist views that lead to xenophobia and intolerance. Such policies of course lead to undesirable and regressive political ramifications that are contrary to the principles of the EU.

In the midst of an economic crisis where the Union is doing everything it can to fix it, citizens cannot afford to have their national politicians to resort to petty pinpointing and sensationalizing that merely hardens the EU’s work and progress and depraves the EU’s name.

The dangerous nationalism that caused World War I may be getting a comeback with the rise of right-winged anti-EU parties. What’s alarming is that these insurgent parties are likely to succeed in the upcoming European Parliament polls, which needs to change. Citizens must realize that their platforms are misleading and regressively delusional, and they must give their fellow citizens the incentive to take action, because the truth is they really don’t want to live in the delusions of Eurosceptics.

Thus, the fate of EU development falls under their hands. The low voter turnout in the previous European polls must not be repeated because if EU citizens really don’t want to adhere to policies that will threaten basic fundamental freedoms, they need to vote, and vote for the right party.

Even if one isn’t too enthusiastic on the EU, voting still helps for it is the first step. The next step is to then regain the enthusiasm and advocate reform. The Lisbon Treaty was the first step in enhancing the Union by simplifying its structure; but the EU needs more than that, the EU needs to take further steps in integration, namely the commitment to a collective ideology of citizens in bettering EU development. This is done by setting aside their differences and starting to cooperate with one another and by promoting a union of citizens instead of a union of member states.

http://i.imgur.com/I3JQUdx.jpg

Courtesy of the European Commission

 

Federalism in #RO

Posted by on 01/04/14
I have made it no secret that I am a true believer in a Federal Europe. My first post on this blog is about my belief that the national state has lived it’s life. And I do have to agree that in Romania, where I live, the federalist momentum has yet to become a reality, [...]

Europe: give us another Winston!

Posted by on 28/03/14
By Horatiu Ferchiu Our leadership, such as it is today, is in many respects weak. It suffers at the mercy of interests other than those of the common folk. It lacks the power to uphold and protect the values inscribed within the EU project. We need someone to take us through this stage, and push us forward. We need the providential arrival of a leader such as Winston Churchill.

Germany’s Race to the bottom: The abolition of the 3%-hurdle for the European elections in Germany

Posted by on 26/03/14
By Mark Dawson and Pierre Thielboerger Hopes are that the upcoming EU elections will produce a stronger and more politicized EP. This task has been made more difficult by the recent ruling of the German Constitutional Court squashing the 3%-threshold for German parties seeking election to the EP. In striking down a legislative compromise between supporters and opponents of a more proportional European electoral system, the Court may have risked overstepping its institutional mandate.

A political union: the butterfly effect of a single word

Posted by on 24/03/14
This article was first published in English and German on Der (europäische) Föderalist as a guest post on < The idea of a new treaty reform is out there – and it is time to talk about our priorities. In this loose series of guest articles, eurobloggers answer to the question: “If you could change one thing [...]

Who should be ‘plugging the gaps’ in EU law?

Posted by on 20/03/14

by Elaine Fahey and Maria Weimer

The European Court of Justice does not make law per se, but it has to make many choices, and it has to make them fast and within page limits. Advocate General Eleanor Sharpston’s visit to the Architecture of Postnational Rule-Making Project at the University of Amsterdam clarified her perspective.

In her talk in the Architecture Dialogue Series at the University of Amsterdam AG Sharpston engaged with an intense debate in recent academic publications on the legitimacy of the European Court of Justice, and its alleged judicial activism. She made a plea to judge the Court in its complex, imperfect legal and practical context. Reform of the procedures and functioning of the Court is urgent, as it has a direct impact on both the quality and legitimacy of the EU’s highest Court.

The AG’s response to the question raised in the title of her talk ‘Does the EU Court of Justice make law?’ can be summarized as follows. It usually does not. Instead, the Court often has to choose a legal meaning from a range of possible meanings, beginning with its teleological approach to interpretation. In doing so, it is confined to the ‘parameters’ of EU legislation and legal adjudication, namely the circumstances of the particular case, the parties’ submissions, and the text of the law, which is often the result of a compromise carrying with it either an accidental or deliberate ambiguity, something wholly unforeseen. Under these circumstances, ‘it is almost inevitable for the Court to go beyond the bare text.’ ‘No court works in a vacuum,’ emphasized Sharpston. And, yet, according to her, interpretative choices whilst sticking to the limits of the law’s text is not law making, but merely ‘law exposition.’ While this is arguably walking a tightrope, the AG defined what in her view are acceptable criteria for making judicial interpretative choices. On the basis of the preamble, the legislative history and the text, the Court can acceptably make a teleological interpretation to overcome legislative ambiguity. However, what is not acceptable in Sharpston’s view is to write a completely different notion from what the text says or to second-guess the legislature. By contrast, the Treaty text was often not ambiguous but rather simply ‘bare’. She thus sought to contrast law-making, law-exposition and ‘plugging the gaps’.

The difficulty of rules not spelling out the conditions of their application is of course not new but it may raise particular challenges. One such case is the decision of the Court in Sturgeon according to the AG. This case concerned the legal interpretation of time limits for passenger compensation under the Air Passenger Regulation. The AG emphasized that several preliminary references had arisen under this EU law on account of ambiguities in legislative drafting. Sturgeon was one such prominent reference. This case afforded the AG the opportunity to reflect more broadly and engage in a lively discussion upon two ‘bookend’ Introduction and Epilogue contributions to the recent publication Judging the Judges’. The publication involved Judge Koen Lenaerts and Prof. Joseph Weiler examining the legitimacy of the interpretive practices of the Court of Justice. Sharpston spoke candidly about the conflicting assessment by Lenaerts and Weiler of her Opinion in the Sturgeon decision. In that case, Lenaerts was President of the chamber of the Court which did not follow her Opinion. Her Opinion was crystal clear on the impermissibility on separation of powers grounds of the ‘creation’ of certain time limits, neatly put as follows: ‘The Community legislator can select a particular time-limit… The Court cannot.’ Her cautious approach met the approval of Weiler but not of the Court itself. Lenaert’s formalistic justification of the Court nonetheless filling the gap with an explicit time limit could be seen to intrude upon the legislator’s prerogatives.

Finally, the AG offered many interesting insights into the practical workings of the Court during the lively question and answer session. ‘We are running the system at its limits,’ she said. It was under tremendous pressure to write important legal opinions in very limited time periods.  Similarly, there was an allocation to each AG of a limited number of printed pages per case– in order to allow translators to manage their workload, which nonetheless impacted upon the reasoning, and more fundamentally, the legitimacy of the Court. Members of the audience posed questions as to how the Court could limit its caseload or introduce dissenting judgments so as to ameliorate the quality of its work.

To conclude, AG Sharpston certainly provided a telling account of the realities of legal adjudication in the EU. However, some open questions remain as to whether the distinctions drawn between law-making, law-exposition and gap-plugging can in reality so sharply be drawn and justified. Also, whether the gap between such distinctions with respect to primary and secondary law can be cleanly drawn. But the AG did not address another important issue, namely the criticism of an alleged ‘integrationist bias’ in the Court’s case law. In fact, the Court is not equally ‘activist’ in all areas of EU law showing more deference to EU than to Member States’ institutions. An example of a ‘not-activist’ Court is its long-standing case law of ‘judicial self-restraint’ with regard to the locus standi of individual applicants (eg Plaumann, and recently Inuit Tapiriit Kanatami). Furthermore, AG Sharpston did not really address why the Court made law in, for example, Sturgeon and other cases, eg Mangold – arguably because it can, as one of the most powerful independent contemporary courts, one that neither legislatures nor Member States can readily reverse or constrain.

Dr. Elaine Fahey and Dr. Maria Weimer are both senior research fellows at the Amsterdam Centre for European Law and Governance

Insatiable French appetite for major EU commission portfolios

Posted by on 14/03/14
By Eberhard Rhein The European Commission will continue to suffer from too many Commissioners and portfolios, and the recent suggestion by the French Economics and Finance minister, Pierre Moscovici, to give France a super-portfolio encompassing Economics, Energy, Industry, Foreign Trade and Competition sounds more than dazzling: an illustration of French 'grandeur' without caring about other member states, whether big or small.

Challenges & Concernes #EP2014

Posted by on 13/03/14
    The EP elections are coming in 70 days. 70. And this year also brings elections in Belgium, the Netherlands, Hungary, Lithuania, Romania, Slovakia, Sweden and the UK. Next year marks general elections in Denmark, Estonia, Finland, Latvia, Poland, Slovenia and Spain. That means that 2014 and 2015 will be hard years for the [...]

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