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Community Method and Intergovernmental Method in the Present Phase of the European Union

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Community Method and Intergovernmental Method in the Present Phase of the European Union Ugo Villani Community Method and Intergovernmental Method in the Present Phase of the European Union The originality of the European Communities (as well as of the European Union), compared with traditional international organizations, implies a different method of operation, that is generally named ‘community method’. While in the intergovernmental method of classical organizations the decision-making belongs to governmental organs, such as a Council or a General Assembly, and there is no representation of the peoples of member States, in the ‘pure’ community method it is a supranational institution – the Commission – that has the power to present a proposal for a binding act, the decision-making is shared between the European Parliament (that represents the citizens of the Union) and the Council, and the control on the respect of law is secured by the Court of Justice. The community method and the intergovernmental method have always coexisted in the history of European integration. Yet, in recent years, on the occasion of the financial and economic crisis of the European Union, of the migration crisis, as well as of Brexit, the balance between the two methods has shifted in favour of the intergovernmental method. This has often given rise to departing from the procedures, the competences, the democratic and judicial controls of the European Union order. Paolo Fois The ‘Flexible Europe’ and the Consent of the Member States The various studies that over the years have been dedicated to the ‘flexibility’ of European Law have often overlooked the relevant aspect of consent that member states have variously given, either in advance or in retrospect, by gradually assenting to a system of differentiated rules among the member states. The paper reconstructs the continuous relationship between flexibility and consent established during the process of European integration with the aim of underlining how, if devoid of the necessary consent among the member states, the recent proposals for a radical reform of the EU may be incompatible with the Treaties and, for the first time, risk to cause a deep gulf within the Union. Roberto Baratta Fundamental Rights and ‘Values’ in the European Integration Process The paper highlights the importance of fundamental rights and common normative values within the European integration process. The author argues that they are the ‘ground rules’ of the European legal system. Fundamental rights and the common system of values are interdependent but different, particularly with regard to their respective scope. Furthermore, the author examines normative values through the prism of what he assumes to be their six basic components. The conclusion reached – keeping in due account the recent case-law of the Court of Justice – is that the ‘doctrine of values’ can play a key role in the European construction. Martín Jesús Urrea Salazar Environment and Sustainable Development: A Private International Law Perspective International community has taken a “new” consensus through the adoption of the sustainable development goals (SDGs) and the 2030 Agenda for Sustainable Development. Yet, global economic development also presents externalities. Multinational companies can compromise that sustainable development, and environmental pollution is one of those externalities. From the perspective of private international law, the focus is on the eventual right to access jurisdiction of the people, and the law applicable to international contracts and to liability for environmental damage. Giovanni Cellamare The Activation of the Concept of Safe Country of Origin in the Italian Legal System Law No. 132 of 2018 included the concept of ‘safe country of origin’ in the Italian legal system. By closely following the rules of the procedure directive, this new regulation provides for accelerated procedures for examining applications for international protection that are presented by citizens of (or stateless persons habitually residing in) one of the ‘safe States’ on the list prepared by a ministerial decree. The relevant practice that is known in other European countries suggests caution in the designation of safe states of origin and in the application of the concept of ‘safe state of origin’. Similar indications apply to the application of the concept of ‘Internal Protection Alternative’ (or ‘Internal Flight Alternative’, or ‘Internal Relocation Alternative’). UNHCR guidelines, as well as ECHR decisions, witness to the above-mentioned indications. Pierre de Gioia Carabellese The New EU Regulation Discussed and Analysised through the Lenses of the Shadow Banking Structured finance transactions had been under the scrutiny of the EU legislature for at least a five- year period. In the aftermath of the problems unfolded during the 2007-2008 financial crises, securitizations, regarded alongside derivative transactions the two main players responsible for sparking off the financial collapse, had already been subject to an intense activity of reform, courtesy of ad hoc pieces of legislation. Yet, the need for a more systematic legislative re-assessment of the matter of the structured finance was deemed urgent and not to be delayed. The recent Regulation goes toward this direction, via the definition, among others, of a new typology of transaction which, if compliant with specific criteria (simple, transparent and simplified), allows the securitization to enjoy a special status, for multifarious purposes, mainly regulatory but also of a civil law nature. The current contribution, which is based on a dogmatic and theoretical discussion, aims to examine such a discipline through the lenses of the shadow banking, a concept that more recently the literature has elaborated and started discussing. Criseide Novi The Implementation of the Permanent Structured Cooperation (PE.S.CO) in the Perspective of a More Autonomous and Effective European Defence Decision No. 2315 of 11th December 2017 established the Permanent Structured Cooperation (PE.S.CO), provided by the Common Security and Defence Policy (CSDP) as a particular form of Enhanced Cooperation. PE.S.CO was established between 25 Member States in order to ensure greater strategic autonomy for the European Union, and with the ambition to encourage the emergence of a genuine ‘European Defence Union’. Unfortunately, however, the planned objectives can hardly be achieved: conflicts between States are still possible, and this makes the birth of a more autonomous and effective European defence difficult, if not even impossible. Francesca Perrini The Contribution of European Jurisprudence to Overcoming UN Crisis and Its Consequences on the Protection of Human Rights Human rights have always had a great importance in UN activity, as is stated in the Charter, and as it results by the Universal Declaration of Human Rights and by the adoption of numerous Conventions. Yet, the fight against terrorism has showed the possibility that the Security Council action in the field of maintenance of peace could generate some violations of fundamental rights. The black lists procedure implies that individuals suspected of terrorism are affected by sanctions, such as travel ban or freezing of funds, that are a menace for human rights. In this context the research of a fair balance between maintenance of peace and protection of human rights sometimes is impossible and/or difficult to reach. For this reason, the contribution of European jurisprudence (that of the EU Court of Justice and of the European Court of Human Rights) to the question appears very interesting. Flavia Rolando Towards the Codification of EU Administrative Procedure? The Question of the Proper Legal Basis The introduction of a proper legal basis by the Lisbon Treaty has livened up the question whether an EU codification of administrative procedure should be adopted and if whether it should apply only to EU institutions, bodies, offices and agencies, or also to Member States’ authorities when implementing EU policies. Nowadays, EU administrative law is made up of a heterogeneous legal framework. A single legal act should represent a coherent and comprehensive set of codified rules that makes it easier for citizens to understand their administrative rights under Union law. This article analyses Article 298 TFEU and assesses the European Parliament resolution and the European Commission follow up. Marco Bolognese The Value of Final and Binding Decision in Civil Proceeding and the Respect for Human Rights The Constitutional Court has dismissed the claim for unconstitutionality of Article 395 of civil procedural code. As a consequence, a final and binding decision, contrary to the ECHR, does not have to be revoked in order to comply with the subsequent ruling by the European Court, which holds the breach of the Convention itself. From the Constitutional Court’s point of view, the lack of a procedural remedy for reopening the aforesaid proceeding, is based on the protection of interests of the third party (who is such because he or she is not allowed to take part in the judgement before the European Court). However, the Court’s reasoning seems not to be correct. In fact, this interest is practically non-existent, hypothetical or greatly diminished. Furthermore, the Court underestimates the importance of the principle of restitutio in integrum contained into the Convention, by which, moreover, the Court stated the review of the criminal trial. Thus, the just satisfaction becomes the only alternative remedy in order to avoid the reopening of a
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