A glimpse of EU government

When president Sarkozy said, before the European Parliament on 16 December 2008, that the French presidency had allowed the European institutions to function at full capacity and successfully, he corrected a widely held image. The image, proffered in the media and in even better informed circles, was that he, Nicolas Sarkozy, happening into a repetition of crises which plunged him into his element, had personally gone around to solve one crisis after the other. According to Sarkozy himself, that was not the case. It was the European states, the Brussels institutions and the Parliament that had for once taken their responsibility and had acted.

One of the most remarkable results of the elections for the European Parliament on 4–7 June 2009 is that the Swedish Piratpartiet won one seat, to which another will be added if the Treaty of Lisbon enters into force. One of the aims of this party is a reform of copyright law to restore the, in its eyes, lost balance between the potentially conflicting interests of creating and spreading culture. The party strives for, among other things, the decriminalisation of all non-commercial copying and use of copyrighted material on the internet.

The Bundesverfassungsgericht was castigated for the Maastricht-Urteil by most European lawyers, especially the Germans among them. But that judgment has placed its stamp on much of the constitutional development of the Union and has allowed theories of constitutional pluralism, polycentrism, multilevel constitutionalism, Verfassungsverbund and the constitution composée to flourish. The German constitutional court is likewise being castigated for its Lissabon-Urteil. Certainly, it has put the questions of democracy, the level at which democracy is to be aggregated and articulated, and the pertaining institutional arrangements in the member states and in the Union higher on the agenda of intellectual and political engagement than they have been over the last decades. Perhaps it will be just as fruitful for European constitutional theory as the Maastricht-Urteil was.

Judicial dialogue – protection of fundamental rights – common constitutional principles – judicial activism – Charter of Fundamental Rights – pluralistic nature of Europe – national particularism – preliminary reference procedure – duty of constitutional courts to participate in dialogue – protection of national constitutional values and traditions – judicial style of European Court of Justice

European Court of Justice decision of 25 July 2008, Case C-127/08, Metock et al. v. Minister for Justice, Equality and Law Reform – EU citizens and their third-country family members – ECJ largely reverses Akrich case-law – Dividing line between national and Community competences on immigration – ‘Reverse discrimination’ not a matter of concern for Community law – Analysis of repercussions of decision on EU and national legal orders

On 3 November 2009 the Czech Constitutional Court gave its second ruling within a year on the Treaty of Lisbon. The Court squarely rejected the complaints against the Treaty. For scholarship the most interesting characteristic of the ruling is the way the Court distanced itself from the Lissabon-Urteil of the Bundesverfassungsgericht in such unequivocal terms that the judgment's central passages deserve a place in this issue, even though we only dispose of a provisional translation by Jan Komárek and cannot make comments available yet. As it did in the previous judgment on the Lisbon Treaty of 28 November 2008, the Czech Court again belies the established idea that eastern European constitutional courts take the Bundesverfassungsgericht as their guide.

Irish legal framework on European referendums – Case-law – Judicial activism – No appropriate legislative reaction – Essential scope or objectives test – Constitutional amendment necessary if test not met – Single Act – Pressure for referendum at each new treaty – Political implications – Positive and negative sides of referendums – Referendum-elites – Government sidelined – Equal access to broadcasting – Issues of equality – Diminished role of political parties

German Constitutional Court decision of 30 June 2009 on the compatibility of the Lisbon Treaty with the German Constitution – Overview of earlier case-law – Analysis of the judgment – Comparison with earlier case-law – The Court's reference to sovereignty – The concept of democratic legitimacy – Participation of the German Parliament – Transformation of the EU into a state – Creeping evisceration of state legislative authority – Assessment of the judgment

Constitutionality of ethnic and racial statistics for research purposes – Principles of indivisibility and equality in Article 1 of the French Constitution – Visible minorities, discrimination and positive action measures – French republican conception of citizenship – Use of the word ‘race’ – Fear of misuse of ethnic and racial statistics – French alternative of territorial measures – Educational and fiscal advantages – Violation of the right to equal access to education – Ghettoisation – Problems in consideration of Directive 2000/43 (the Race Directive)

German Constitutional Court decision of 30 June 2009 on the compatibility of the Lisbon Treaty with the German Constitution – ‘Identity’ key word of the Lissabon-Urteil – The national identity clause in the current Union Treaty – Nation: people and state; diachronic and synchronic identity – Constitutional patriotism – The national identity clause in the Lisbon Union Treaty – Volksidentität and state identity – Verfassungsidentität: diachronic identity – Identité constitutionnelle de la France: synchronic identity – confidence and diffidence in the Union

Types of flexibility – Tension: demands for diversity v. logic of uniformity – United Kingdom and differentiation under Maastricht and Amsterdam – Court of Justice (77/05 and 137/05) on Articles 4 and 5 Schengen Protocol: a clear signal disapproving UK's ‘pick and choose’ approach – Lisbon Protocols: unparalleled possibilities for differentiation coupled with coercive procedural constraints and threats of ‘expulsion’.

Founding principles and rights in new Statuti (fundamental regional charters) – Expression of sub – national constitutionalism? – Constitutional court: Statuti not regional constitutions – Provisions on founding principles and rights ‘cultural statements’ lacking any legal effect – Tertium Genus in addition to ‘prescriptive’ and ‘programmatic’ norms? – Various scenarios for potential legal conflicts between the national Constitution and the ‘cultural statements’

German Constitutional Court decision of 30 June 2009 on the compatibility of the Lisbon Treaty with the German Constitution – Continuing sovereignty of member states under the EU Treaty – Extended constitutional limits to European integration (‘eternity clause’) under German Constitution, but these are not violated by Lisbon Treaty – Composition of European Parliament does not satisfy fundamental requirement of democracy but does not violate German Constitution since EU is not a state – Critical assessment of conceptual foundations of decision

Relationships between international, EU, domestic law – Different legal orders – Different jurisdictions – Validity, rank, effects of international law in EU legal order – Kadi – Court of First Instance in Kadi – Advocate-General in Kadi – European Court of Justice in Kadi – Pluralism concept of AG Maduro – European legal pluralism reconsidered

Third pillar – European Arrest Warrant – Nature of third pillar – Litigation before national constitutional courts – Primacy of EU law over national law – Differing national attitudes with regard to the status of third pillar law – Process of approximation: first pillar and third pillar – Achieving consistency through primacy of third pillar – Judicial protection of position of individual – Lisbon Treaty and the unification of EU law

International law in constitutional change of EU – Rigidity of amendment – EU amending and accession treaties not reviewable – International law in internal development of Union law – Conventions/treaties by member states jointly – Acts of the representatives of the governments – International law in the agreements with third states – Exportation of legal rules – Conditionality policies – Legislating through international agreements

German Constitutional Court decision of 30 June 2009 on the compatibility of the Lisbon Treaty with the German Constitution – Analysis of inconsistencies – Differences between the EU and a state – Sovereignty of the member states and Kompetenz-Kompetenz – Argument for a relative concept of sovereignty – Sovereignty and the right to withdraw – Critical analysis of BVerfG's assessment of the EU's democratic deficit and denial of the importance of the European Parliament

Institutional and normative convergence – Common Foreign and Security Policy – Pillar Structure – External Relations – Role of the Court – Normative Consistency – EU Legal Order – Legal Nature CFSP – Treaty of Lisbon – Legal Instruments – Decision-Making

Constitutionalism – Kadi ruling of EU Court of First Instance – Erosion of ‘total’ constitutional order by reallocation of public power – Constitutional vision challenge of networks approach – Emerging human rights hierarchy – Rudimentary international value system – Ius cogens and erga omnes – Barcelona Traction – Core human rights elements – Enforcement through regional and domestic courts – Review of Security Council resolutions

On 26 November 2008 the Czech Constitutional Court (hereinafter Court) handed down a long-awaited opinion in which it unanimously found the Lisbon Treaty (hereinafter Treaty) to be compatible with the Czech constitutional order. The decision has drawn broad attention at all levels, be it political circles, academia or even general public. It is certainly one of the most significant decisions in the Court's history and it has EU-wide implications.