The EU Constitution in a Contextual Perspective
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Eucrim 1/2016
eucrim 2016 /1 THE EUROPEAN CRIMINAL LAW ASSOCIATIONS‘ FORUM Focus: Procedural Rights and Cooperation – New Tendencies Dossier particulier: Droits procéduraux et coopération – nouvelles tendances Schwerpunktthema: Verfahrensgarantien und Zusammenarbeit – neue Tendenzen The Directive on the Presumption of Innocence and the Right to Be Present at Trial Steven Cras and Anže Erbežnik The Directive on the Presumption of Innocence. A Missed Opportunity for Legal Persons? Stijn Lamberigts Inaudito reo Proceedings, Defence Rights, and Harmonisation Goals in the EU Prof. Dr. Stefano Ruggeri Paving the Way for Improved Mutual Assistance in the Context of Customs Fraud Emilia Porebska Können die Regelungen über die Zusammenarbeit der EU-Mitgliedstaaten bei der Strafverfolgung kurzerhand aufgehoben werden? Ulrich Schulz Vollstreckungshilfe zwischen Deutschland und Taiwan auf neuer Grundlage Dr. Ralf Riegel and Dr. Franca Fülle 2016 / 1 ISSUE / ÉDITION / AUSGABE The Associations for European Criminal Law and the Protection of Financial Interests of the EU is a network of academics and practitioners. The aim of this cooperation is to develop a European criminal law which both respects civil liberties and at the same time protects European citizens and the European institutions effectively. Joint seminars, joint research projects and annual meetings of the associations’ presidents are organised to achieve this aim. Contents News* Articles European Union Procedural Rights and Cooperation – New Tendencies Foundations Procedural Criminal Law 25 The Directive on the Presumption of 2 Fundamental Rights 13 Procedural Safeguards Innocence and the Right to Be Present at 2 Area of Freedom, Security 13 Data Protection Trial. Genesis and Description of the New and Justice 15 Ne bis in idem EU-Measure 3 Schengen Steven Cras and Anže Erbežnik Cooperation 36 The Directive on the Presumption of In- Institutions 16 European Arrest Warrant nocence. -
Downloaded from Brill.Com09/26/2021 01:53:15PM Via Free Access 162 Cuyvers
chapter 4A The Scope, Nature and Effect of EU Law Armin Cuyvers 4.1 Introduction: ‘the very foundations of EU law’1 This chapter deals with some of the most foundational doctrines of EU law, including supremacy and direct effect.2 These doctrines have been vital for the success of the EU, also in the early days of European integration. It can safely be said that without these doctrines the EU would never have been as success- ful and effective as it has been. Considering their vital role in EU integration, it may even be said that direct effect and supremacy form essential elements for any regional system that truly wants to be effective and deliver concrete benefits to its citizens.3 Both doctrines, therefore, are of vital interest to the EAC as well. 1 This chapter gratefully builds on the LEAC research report by T. Ottervanger and A. Cuyvers, ‘The functioning of the East African Community: Common market, Court of Justice and fundamental rights, a comparative perspective with the European Union’ (Europa Instituut Leiden, 2013), pp. 1–206, and the excellent master Thesis of Merel Valk, written in 2015 under supervision of the LEAC, entitled ‘The Rule of the European Court of Justice and the East African Court of Justice: Comparing Potential Judicial Strategies for Early Stage Integration’. (on file with the author). 2 For further reading on these issues see inter alia See for one among several classics B. de Witte, ‘Direct Effect, Supremacy, and the Nature of the Legal Order’, in: P. Craig and G. De Búrca (eds), The Evolution of EU Law (OUP 1999), 209 et seq, or the updated version in P. -
The European Union and Legitimacy: Time for a European Constitution Mark Killian Brewer*
Cornell International Law Journal Volume 34 Article 5 Issue 3 2001 The urE opean Union and Legitimacy: Time for a European Constitution Mark Killian Brewer Follow this and additional works at: http://scholarship.law.cornell.edu/cilj Part of the Law Commons Recommended Citation Brewer, Mark Killian (2001) "The urE opean Union and Legitimacy: Time for a European Constitution," Cornell International Law Journal: Vol. 34: Iss. 3, Article 5. Available at: http://scholarship.law.cornell.edu/cilj/vol34/iss3/5 This Note is brought to you for free and open access by Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell International Law Journal by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. The European Union and Legitimacy: Time for a European Constitution Mark Killian Brewer* Introduction ..................................................... 555 I. Background .............................................. 558 A. The Emergence of Neoconstitutionalism ............... 558 B. The Components of Neoconstitutionalism .............. 560 1. The European Treaties Lack the Form of Traditional Constitutional Law ................................. 560 2. The European Treaties Lack the Authority of Traditional Constitutional Law ...................... 562 3. The Communities Lack a Demos .................... 563 C. The Doctrine of Supremacy and German Resistance .... 564 D. The German Legal Framework ........................ 565 E. -
José Manuel Martínez Sierra The
Zentrum für Europäische Integrationsforschung Center for European Integration Studies Rheinische Friedrich-Wilhelms-Universität Bonn D i s c José Manuel Martínez Sierra u s The Spanish Presidency Buying more than it can s i choose? o n P a ISSN 1435-3288 ISBN 3-936183-12-0 p Zentrum für Europäische Integrationsforschung e Center for European Integration Studies Rheinische Friedrich-Wilhelms-Universität Bonn r Walter-Flex-Straße 3 Tel.: +49-228-73-1880 D-53113 Bonn Fax: +49-228-73-1788 C 112 Germany http: //www.zei.de 2002 Prof. Dr. D. José Manuel Martínez Sierra, born 1971, is Professor Titular in Constitutional Law at Complutense University of Madrid since February 2002. After studies of Law, Political and Social sci- ence at Madrid, Alcalá and Amsterdam, Martínez Sierra wrote a LL.M dissertation on the European Parliament and a PhD dissertation on the structural problems in the Political System of the EU. He was a trainee at the Council of the EU and lecturer at La Laguna University (2000-2002). His recent publications include: El procedimiento legislativo de la codecisión: de Maastricht a Niza, Valencia 2002; (with A. de Cabo) Constitucionalismo, mundialización y crisis del concepto de sober- anía, Alicante 2000; La reforma constitucional y el referéndum en Irlanda: a propósito de Niza, Teoría y Realidad Constitucional, n° 7 2001; El debate Constitucional en la Unión Europea, Revista de Estudios Políticos, nº 113 2001; El Tratado de Niza, Revista Espa- ñola de Derecho Constitucional, nº 59 2001; Sufragio, jueces y de- mocracia en las elecciones norteamericanas de 2000, Jueces para la democracia, n° 40 2001. -
Flexibility Within the Lisbon Treaty: Trademark Or Empty Promise?
EIPASCOPE 2008/1 Flexibility within the Lisbon Treaty Flexibility within the Lisbon Treaty: Trademark or Empty Promise? By Funda Tekin and Prof. Dr Wolfgang Wessels1 The concept of flexibility in the European integration process has been discussed in different ways since the 1970s. Some forms may be “upwardly oriented”, representing a driving force rather than a brake on the integration process. Others may weaken integration and have a “downsizing” effect. “Enhanced cooperation”, which was first introduced by the Amsterdam Treaty, aims to provide an attractive alternative to intergovernmental cooperation outside the treaty, and to allow a group of Member States to deepen integration in particular areas without 25 affecting either the interests of others or the overall construction of European integration. The Lisbon Treaty introduces changes at all stages of the cycle: preparatory stage, initiation, authorisation, implementation, accession and termination. The conditions for enhanced cooperation remain restrictive and other forms of flexibility may seem more attractive. Consequently the prospect is for flexibility to be an empty promise rather than a trademark of the new Treaty. Introduction ○○○○○○○○○○○ flexibility are analysed in the light of the decision-making dilemma in which procedures are revised between a The idea of flexibility in the integration process has long sovereignty-led veto reflex and a functional drive for efficiency been the subject of European debate. The best-known (Hofmann and Wessels 2008). Given the restricted -
Après Enlargement, W. Sadurski/J. Ziller/K. Zurek
$SUqV(QODUJHPHQW /HJDODQG3ROLWLFDO5HVSRQVHV LQ&HQWUDODQG(DVWHUQ(XURSH HGLWHGE\ :RMFLHFK6DGXUVNL -DFTXHV=LOOHU .DUROLQD=XUHNÜ %UROPEAN5NIVERSITY)NSTITUTE 2OBERT3CHUMAN#ENTRE FORADVANCEDSTUDIES Après Enlargement: Legal and Political Responses in Central and Eastern Europe edited by Wojciech Sadurski Jacques Ziller Karolina Żurek Robert Schuman Centre for Advanced Studies European University Institute Florence, Italy © 2006 European University Institute; selection and editorial matter © Wojciech Sadurski, Jacques Ziller and Karolina Żurek; individual chapters © contributors. This text may be downloaded only for personal research purposes. Any additional total or partial reproduction for such or other purposes, whether in hard copies or electronically, require the consent of the Robert Schuman Centre for Advanced Studies. Please contact <[email protected]>. If cited or quoted, reference should be made to the full name of the author(s), editor(s), the title, the Robert Schuman Centre for Advanced Studies, the year and the publisher. ISBN 92-9084-019-6 Published by the Robert Schuman Centre for Advanced Studies European University Institute Via delle Fontanelle, 19 I – 50016 San Domenico di Fiesole (FI), Italy www.iue.it/RSCAS/ Printed in Italy, in January 2006 ii The Robert Schuman Centre for Advanced Studies The RSCAS carries out disciplinary and interdisciplinary research in the areas of European integration and public policy in Europe. It hosts the annual European Forum. Details of this and the other research of the Centre can be found on: www.iue.it/RSCAS/Research/ Research publications take the form of Working Papers, Policy Papers, Distinguished Lectures and books. Most of these are also available on the RSCAS website: www.iue.it/RSCAS/Publications/ iii Table of Contents Acknowledgements ...................................................................................................... -
The Role of Music in European Integration Discourses on Intellectual Europe
The Role of Music in European Integration Discourses on Intellectual Europe ALLEA ALLEuropean A cademies Published on behalf of ALLEA Series Editor: Günter Stock, President of ALLEA Volume 2 The Role of Music in European Integration Conciliating Eurocentrism and Multiculturalism Edited by Albrecht Riethmüller ISBN 978-3-11-047752-8 e-ISBN (PDF) 978-3-11-047959-1 e-ISBN (EPUB) 978-3-11-047755-9 ISSN 2364-1398 Library of Congress Cataloging-in-Publication Data A CIP catalog record for this book has been applied for at the Library of Congress. Bibliographic information published by the Deutsche Nationalbibliothek The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data are available in the Internet at http://dnb.dnb.de. © 2017 Walter de Gruyter GmbH, Berlin/Boston Cover: www.tagul.com Typesetting: Konvertus, Haarlem Printing: CPI books GmbH, Leck ♾ Printed on acid free paper Printed in Germany www.degruyter.com Foreword by the Series Editor There is a debate on the future of Europe that is currently in progress, and with it comes a perceived scepticism and lack of commitment towards the idea of European integration that increasingly manifests itself in politics, the media, culture and society. The question, however, remains as to what extent this report- ed scepticism truly reflects people’s opinions and feelings about Europe. We all consider it normal to cross borders within Europe, often while using the same money, as well as to take part in exchange programmes, invest in enterprises across Europe and appeal to European institutions if national regulations, for example, do not meet our expectations. -
EU Case Law Outline I. Direct Effect
EU Case Law Outline Spring 2014 Tommaso Pavone ([email protected]) Note: All page references are from: Craig, Paul, and Grainne de Burca. 2011. EU Law: Text, Cases, and Materials (5th ed.). New York, NY: Oxford University Press. Further, particularly foundational cases are underlined. This is a personal subjective selection, and not one that is necessarily in accordance with the analysis provided by the above text. I. Direct Effect Van Gend en Loos (1963), pg. 183 Full reference: Case 26/62 NV Algemene Transporten Expeditie Onderneming van Gend en Loos v. Nederlandse Administratie der Belastingen [1963], ECR 1. Summary: Van Gend en Loos, a postal and transportation company, imported chemicals from Germany into the Netherlands, and was charged an import duty that had been raised since the entry into effect of the Treaty of Rome. Van Gend paid the tariff but then sought reimbursement in court (before the Dutch Tariefcommissie), alleging violation of Article 12 of the Treaty of Rome which prohibits new tariffs or customs on imports and exports being promulgated in addition to those already in place at the time of the Treaty of Rome’s ratification. The Dutch Tariefcommissie sought a preliminary ruling from the ECJ regarding whether Article 12 of the Treaty of Rome directly applicable within member state territories, such that nationals of the states could leverage EEC law in domestic cases. The ECJ argued that based on the spirit and wording of the Treaty of Rome, EEC law was indeed directly effective in national legal orders. It argued -
Union Citizenship
THE JEAN MONNET PROGRAM Professor J.H.H. Weiler European Union Jean Monnet Chair in cooperation with the MAX PLANCK INSTITUTE FOR COMPARATIVE PUBLIC LAW AND INTERNATIONAL LAW Professor Armin von Bogdandy Director of the Max Planck Institute for Comparative Public Law and International Law EUROPEAN INTEGRATION: THE NEW GERMAN SCHOLARSHIP Jean Monnet Working Paper 9/03 Stefan Kadelbach Union Citizenship Max Planck Institute for Comparative Public Law and International Law Heidelberg, 24-27 February 2003 All rights reserved. No part of this paper may be reproduced in any form without permission of the author. This project was funded by the Fritz Thyssen Foundation. ISSN 1087-2221 © Stefan Kadelbach 2003 New York University School of Law and Max Planck Institute for Comparative Public Law and International Law Abstract Union citizenship is the product of a political process which aimed at enhancing the status of the individual. Parallel to the deepening of European integration, a new role was sought for citizens that goes beyond participating in the Common Market. To achieve this goal, a strategy is followed which tries to sketch out a legal frame what has to be filled with political life. This article tries to take legal analysis and sociological aspects into account. Starting from the assumption that citizen status implies civil, social and political rights, it suggests that the existing Treaty provisions on Union citizenship are of a more symbolic nature, and that its legal potential lies in the sphere of social rights. If the ideal is creating a reflection of a full citizen status on the Union level, disappointment will be inevitable as long as the Member States remain reluctant in offering genuine political participation on both stages of the European multi-level system. -
E Pluribus Europa? Assessing the Viability of the EU Compound Polity by Analogy with the Early US Republic
Department of Political and Social Sciences E Pluribus Europa? Assessing the Viability of the EU Compound Polity by Analogy with the Early US Republic Andrew Glencross Thesis submitted for assessment with a view to obtaining the degree of Doctor of Political and Social Sciences of the European University Institute Florence, May 2007 EUROPEAN UNIVERSITY INSTITUTE Department of Political and Social Sciences E Pluribus Europa? Assessing the EU Compound Polity by Analogy with the Early US Republic Andrew Glencross Thesis submitted for assessment with a view to obtaining the degree of Doctor of Political and Social Science of the European University Institute Jury Members: Professor Friedrich Kratochwil, European University Institute (Supervisor) Professor Daniel Deudney, Johns Hopkins University Professor Sergio Fabbrini, Università degli Studi di Trento Professor Alexander H. Trechsel, European University Institute © 2007 Andrew Glencross No part of this thesis may be copied, reproduced or transmitted without prior permission of the author Glencross, Andrew (2007), E Pluribus Europa? Assessing the EU Compound Polity by Analogy with the Early US Republic European University Institute DOI: 10.2870/11888 ii Glencross, Andrew (2007), E Pluribus Europa? Assessing the EU Compound Polity by Analogy with the Early US Republic European University Institute DOI: 10.2870/11888 ABSTRACT As a novel and complex polity, also subject to endless proposals for institutional reform, the viability of the EU is an open but under-theorized question. This thesis conceptualizes EU viability from an internal perspective, that is, the viability of the process of integration rather than Europe as a viable actor in international politics. Adopting the concept of a compound polity to understand the tensions inherent in the EU, viability is defined in relation to the “rules of the game” of this compound system. -
Bringing European Democracy Back in Or How to Read the German Constitutional Court’S Lisbon Treaty Ruling
Bringing European Democracy Back In Or how to read the German Constitutional Court’s Lisbon Treaty ruling Erik Oddvar Eriksen and John Erik Fossum Working Paper No. 9, September 2010 ARENA Working Paper (online) | ISSN 1890- 7741 Working papers can be downloaded from the ARENA homepage: http://www.arena.uio.no Abstract This article critically examines the democratic theory that informs the German Federal Constitutional Court’s Lisbon Treaty ruling. This is needed because the ruling is ambiguous with regard to what democracy for what Union. In order to analyse the ruling we establish three models of what European democracy possibly can amount to: Audit democracy based on the EU as a derivative of the member states, a multinational federal state, or a regional- cosmopolitan polity? The Court’s depiction of the EU does not fit as well as we should expect with the label derivative entity due to the important legislative role of the European Parliament. EU’s legal supranationalism points in the direction of a federation, but the Court’s argumentation does not lend support to this notion. The Court models democracy on a rather specific set of institutional presuppositions that are derived from the parliamentary model of democracy associated with the sovereign nation state. At the same time, the Court operates with a conception of a changing state sovereignty that unfolds more in line with cosmopolitan than with classical Westphalian statist principles. This article was first published in the European Law Journal, volume 17, 2011. It is reprinted here by permission of the European Law Journal. Bringing European democracy back in Introduction The European integration process has been rightly cast as ‘integration through law’. -
The Transformation of Governance in the European Union* Markus Jachtenfuchs and Beate Kohler-Koch
The Transformation of Governance in the European Union* Markus Jachtenfuchs and Beate Kohler-Koch Eurobarometer surveys regularly confirm that in a number of policy fields, citizens consider the European Union to be the appropriate level for political action. Even a brief look into the Maastricht Treaty shows that the European Union has very broad political competencies. In the EU, collectively perceived problems are dealt with by means of targeted public policy with the aim of collectively binding decisions. This corresponds to a general notion of governance (Kohler-Koch 1993). However, the notion of governance is commonly used with reference to the state and cannot be easily applied to the institutional system of the European Union. On the other hand, the political integration of Western Europe has led to a qualitative change both in the conditions under which governments act and in their ability to govern in the interests of their citizens. At the same time, the European Union – and more precisely its supranational community component – has been transformed into a political order with an action capacity of its own. The transfer of political competencies to the European level proceeds in small steps in the daily practice of governance and of adjudication. In large intervals, the results of these processes are codified in treaty form by intergovernmental conferences. In the light of these briefly sketched features and developments, it seems fruitful to have a closer look at “governance in a dynamic multi-level system”. The first part of this paper recalls the political and legal controversy about the nature of the political order of the Union with the aim of justifying the use of the term “governance” with reference to the EU.