This contribution analyzes how the process of European integration has affected the capacity of citizens to collectively decide on the “social question,” that is, on the distribution of resources and life chances between individuals in a society. It starts by highlighting the pivotal role of “the political” in any answer to such question (B); generally traces the demise of this role under the pressures of globalization, legal integration, and the sovereign debt crisis (C); and suggests that law has been an important instrument for the lifting of the social question outside the scope of political contestation. This contribution then briefly catalogues different alternatives that can serve to reappropriate the social question within the realm of politics, argues that our priority should lie in the formation of a transnational public sphere, and suggests that EU law can, in several ways, contribute towards, if not fully deliver, a return of authorship and ownership about how societies function to the citizen (D).

The controversial decisions of the Court of Justice of the European Union (CJEU) in the quartet of cases that are grouped under its “Laval/Viking jurisprudence” are rapidly becoming entrenched as a key dimension of the European Union (EU) constitutional imaginary. This comes with a certain “immunization” against challenge as they become much harder to treat as mistakes. In their elevated status they have aligned stances and expectational structures. They have also had significant impact on the “Nordic” models; Charles Woolfson shows, for example, how subsequent to the European Court of Justice (ECJ) decision, the rulings of the Swedish Labour court has “seem[ed] to confirm that the ‘Swedish model' has, at the very least, been significantly redefined, if not fundamentally altered, in the light of Laval.” While EU lawyers largely sit it out in relative passivity, wondering what the fuss is really about, labor lawyers have been vocal in their disagreement. But the latter's voices in this debate—if we can call it such—have in turn been drowned out by the ululations of lawyers and theorists from the “new,” post-2004, EU countries loudly proclaiming a victory against the arrogance of the older Member States. If the workers of the Baltic states want to sell their labor—and their life—cheap, goes the “inclusionary” argument, why should they be constrained from doing so under protectionist regulatory policies that undercut their competitive advantage by those unwilling to rein in the exclusionary structures of social protection that limit access and opportunity for their workforce to join the Continent-wide economy? The massive impact that the decisions have had on the regulation of industrial relations in the countries of the European Union and on the position of the trade unions has hardly been ameliorated by the debacle that was the rapid withdrawal of the proposed Monti II Regulation in the face of resistance to it by national parliaments.

The reference from the Irish Supreme Court seeking a preliminary ruling in the Pringle case concerns the compatibility of the Treaty establishing the European Stability Mechanism (hereinafter ESM Treaty or ESMT) with European Union (EU) law. The Irish Supreme Court was concerned with the legal significance of Council Decision 2011/199, which amended the Treaty on the Functioning of the European Union (TFEU) by inserting a third paragraph in Art 136 TFEU. The new Art 136(3) provides that the Member States whose currency is the euro, may establish a mechanism such as the European Stability Mechanism (ESM) so long as that mechanism is only activated when indispensable to safeguarding the stability of the euro area as a whole, and only if the financial assistance is made subject to strict conditionality. But, because Decision 2011/199 has not yet been ratified by all Member States, the TFEU has not yet been amended. The ESMT nevertheless entered into force at the end of September 2012, and the ESMT commenced its operations in December 2012.

The purpose of this paper is not to argue for a particular approach to constitutional interpretation, but to map the domain thereof and clarify the requirements that an adequate theory of the subject must meet. A comprehensive constitutional theory has to address both how and by whom a given constitution should be interpreted. While everyone admits that these two issues are not entirely unrelated, many constitutional theorists presume that a theory of constitutional interpretation can usefully insulate these two questions. The argument is that once we have answered the question of who will interpret the constitution and we have made a decision on institutional design, we can then focus our efforts on the proper method of interpretation. Although I do not deny that the two questions can be analytically separated, my contention is that a theory of constitutional interpretation focusing only on the how question is wholly inadequate.

This year is designated the “European Year of Citizens”. It marks the 20th anniversary of the establishment of the European Union citizenship under the Treaty of Maastricht. It is important to ask what exactly will be celebrated on this occasion. Specifically, which rights did the European peoples gain by virtue of their so-called fundamental status of EU citizenship, and were the guarantees embedded in those rights satisfactory? This article will address these questions by focusing on the social rights field, a field which has been dramatically affected by the development of the European Union citizenship concept.

Although it guarantees individual religious freedom and the inviolability of “human dignity,” the German Basic Law also infers the principle of state neutrality regarding the exercise of religious freedom in public life and civil service domains. The Länder (states), however, enjoy substantial discretion in matters of religion and education, which has led to major divisions as to whether Muslimas (Muslim women) can wear headscarves as public employees. In 2006 Berlin adopted its own Neutrality Law (Berliner Neutralitätsgesetz) prohibiting religious attire among teachers, judges, and police. Within weeks, the city-state's first anti-discrimination officer was overwhelmed with new discrimination cases involving private sector employers as well. This essay examines the tensions and paradoxes inherent in Berlin's efforts to uphold religious “neutrality” among civil servants while also meeting the requirements of Germany's General Equal Treatment Act and three recent EU Directives 2000/43/EC, 2000/78/EC, and 2002/73/EG), addressing race, religion and equal treatment in employment, respectively. This article argues that the Neutrality Law not only violates national and supranational anti-discrimination regulations but that local officials are actually drawing upon the latter to undermine the enforcement of their own statute, in the hope that it will be repealed.

One notable feature about the debate between “liberal” and “political” constitutionalism has been its elite focus. The courts and the legislature are discussed in efforts to determine the appropriate role of each in processes of constitution-framing and changing. But this task is often set up implicitly as a zero-sum game. Although it might be claimed that citizens are tangentially relevant to this power struggle, a detailed account of whether citizens should, and how they might, play a direct role in constitutional authorship is seldom, if ever, placed on the table. This paper considers the elite orientation of this debate, questioning whether this is in normative terms acceptable, and in empirical terms credible, particularly as we consider how, over the past three decades, the referendum has emerged as an important vehicle for constitutional change in so many states.

All nationals of a Member State are Union citizens, and so, in principle, these citizens fall within the scope of European Union (EU) law ratione personae. However, the protection of European citizenship status (ECS) is a necessary but not a sufficient condition for enjoying European citizenship rights (ECRs). In order to bring a case within its jurisdiction, the Court of Justice of the European Union (CJEU) should also ascertain what the link is between ECRs and the scope of EU law (ratione materiae). Recently, the CJEU ruled that securing the “genuine enjoyment of the substance of the rights attaching to the status of European Union citizenship” is a sufficient condition to bring a case within the scope of EU law. This new formula challenges the traditional cross-border test: by referring to “genuine enjoyment,” it entails rethinking the CJEU's current practice of depicting the conditions under which a citizenship case should be considered ratione personae and ratione materiae within the scope of EU law. Importantly, the interpretative crux of this new formula concerns whether the Court has really opted for an innovative test of its jurisdiction, which may detach the protection of ECRs from the current exercise of fundamental freedoms. This paper critically maps out how the CJEU has gradually strengthened both the protection of the ECS and the protection of rights attaching to such status. It argues that the Court has recognized that the de facto exercise of fundamental freedoms is not the only way to establish a link between a EU citizenship case and the scope of EU law. On the contrary, the Court ruled that Art. 20 TFEU (on Union citizenship and European citizenship rights) can be invoked by Union citizens, even if they have never exercised their free movement rights, in order to challenge national measures, which “deprive citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union.” This interpretative move raises the question whether the new test concerning the substance of the rights attaching to the status of European citizens enhances the protection of fundamental freedoms, by also safeguarding the potential exercising of these freedoms in the future, or whether it calls for including the actual protection of fundamental rights (such as the right to respect family life) in the so-called “substance” of European citizenship rights. This paper argues that the Court's present approach indicates that the former is the case, casting doubts on the central position of fundamental rights with regards to European citizenship.

This paper posits a (very British!) call to arms, and does so in five steps. In part A, we address the need for constitutional fictions by which the many surrender political power to the few, in the name of stability, order and security. In part B, however, we will show that conflict is both a necessary and a core principle of political constitutionalism—that it is the latent possibility of conflict, the (re)awkening of the many where the few abuse that power, that acts as the final check on government. In part C, we trace the steps by which recent re-interpretations of the work of J.A.G. Griffith, with a focus on the work of Tomkins and Bellamy, have reduced politics to its parliamentary form, thereby closing—rather than “enlarging”—the “areas for argument and discussion”—a narrow view of the constitution to which, admittedly, Griffith himself might have subscribed. In part D, we will assess the limits of such a narrow reading of the political and argue that a more dynamic and reflexive approach is needed if we are to remain in—or recover to—rude constitutional health. Finally, in part E, we will use the political and constitutional background to the devolution of legislative and executive power to Scotland in order to demonstrate the power of political conflict, in extraordinary moments, to expose, break down and create new constitutional fictions.

Under the Nazi regime, tens of thousands of Jews lived in ghettos, working more or less normal jobs. Some of these ghettos had their own employment centers, and some employers even paid into retirements funds. Legislation known as “German Pensions for Work in Ghettos,” or by its German acronym, ZRBG (Gesetz zur Zahlbarmachung von Renten aus Beschäftigungen in einem Ghetto) was passed in 2002 to grant pensions to some of these former laborers. But more than ten years after its passage, its implementation is still subject to considerable conflict. For many years, former laborers in Nazi ghettos have been fighting to get the pension that this law ostensibly guarantees them, but the vast majority of their applications have been rejected. Since 2002, around 70,000 survivors have invoked the ZRBG. However, over ninety percent of these applications were initially rejected by German authorities for various legal and practical reasons. This essay is an attempt to summarize the major steps in the implementation of the law. It begins with an overview of the historical background, and then will shift focus to the judicial, diplomatic, political, and practical problems with the implementation of the ZRBG.

This paper makes the claim that the legal framework governing the European Stability Mechanism (ESM) is contradictory, conceptually incoherent and may be characterized as a circumvention of Union law. It is further claimed that such circumvention, and the resulting establishment of a significant permanent institution outside and beyond the scope of the Union legal order, represents a challenge to European democracy and to the principle of respect for the rule of law.

Since the global economic crisis began in 2007, the EU's response has been an attempt to muddle through, but it is generally recognized that more far-reaching changes to its structures are inevitable in the long term. One possible trajectory is towards disintegration; another is towards an increasingly “multi-speed” Europe—possibly accompanied by a splintering of the Eurozone whereby one or more smaller countries depart. A third possibility is closer union. Many would agree with the proposition that if destructive centrifugal forces are to be kept at bay, the next step for the EU must be political union, including a fiscal and transfer union—one that requires countries of the developed core supporting their brethren struggling at the periphery. Through this fraternal process, the EU will be able to achieve a new constitutional moment, a moment of refoundation in which its “social” soul is rediscovered. No longer will corporate lobbies be granted privileged access to the offices of Brussels. Powerful and democratically accountable institutions will be constructed, and geared around one of the EU's defining values: Solidarity.

The privatization of Kosovo's socially owned property and enterprises differs significantly from privatization programs undertaken in other countries, especially in Eastern and South-Eastern Europe when they transitioned from communism to democracy and free market systems. What is unique about Kosovo's privatization program is that it was designed and implemented under the authority of the United Nations at a time when Kosovo was directly administered by the United Nations. It is perhaps so far the only privatization program that was initiated and implemented by the United Nations under Chapter VII of the United Nations Charter. Various other international organizations, such as the European Union, played a significant role in this process as part of their responsibilities in the administration of Kosovo. An obvious question is what the United Nations would have to do with privatization in the context of territorial administration under Chapter VII of the United Nations Charter and if the United Nation's authority to administer Kosovo would include the authority to privatize property, the legal nature of which was unclear even when it was developed in former Yugoslavia. The discussion of these and other legal questions and controversies which are related to the privatization process in Kosovo are the main subject of this article, with a focus on the role of the United Nations and the European Union in this process.

The present-day EU, as is well known, faces a serious crisis. As contributions to this volume make clear, that crisis is political as much as it is economic. Developments such as the limitations on national democracies established via the golden rule, as well as the exclusion of parliaments from EU decision-making, illustrate the grave challenges to democracy brought about by the EU's response to the euro crisis. Given this context, the task of regenerating Europe is primarily a political task. It would be strange indeed to address such a crisis by turning to a seemingly apolitical tool, such as human rights. Accordingly, human rights—anti-majoritarian and legalistic—seem to be in full retreat from the kind of adversarial politics needed to reorient the European project along more democratic lines.

Taking both ordinary regulations and constitutional principles in account, is state intervention in the market through public policies legitimate? The legitimate use of public policies, as far as state intervention is concerned, will be analyzed taking into consideration legal procedures and the necessary legal interpretation. Methodologically, the theoretical object of this research is to conciliate the idea of law as integrity, developed by Dworkin, with the idea of law as identity, complemented by Taylor's idea of identity and Bankowski's idea of living lawfully. In fact, the methodological approach consists of reconstructing a system of analytical concepts based on a moral reading of legal rules and constitutional principles rooted within contemporary legal theory. The final object is to figure out new means of interpreting legal economic regulations and finding new ground for the legitimate evaluation of public policies.

In a recent article, Sobotka and Vermeersch chart the development of EU policy-making towards the Roma. Their analysis of EU documents and policy initiatives tells a convincing tale: Since 2007, Roma have shifted from being an external issue—connected to Enlargement conditionality—to being a high-priority on the EU's internal agenda, and from being the subjects of an approach focused on minority rights to one of social inclusion. This change in emphasis towards the Roma can be viewed in the light of a wider reorientation of the European Union, in which the primarily economic language of European integration is moderated by a shift towards viewing economic growth and social cohesion as mutually conditioning and sustaining. This is reflected in the 2020 Strategy in the language of “smart, sustainable and inclusive growth,” as well as in the notion of a “social market economy” and in the proliferation of social rights at the EU level. This reorientation has primarily been viewed to date through the lens of the increased prominence given to fundamental rights protection in the post-Lisbon Union, and the conflict that this creates with the Union's traditional fundamental freedoms. However, this shift is not exhausted by the greater emphasis on fundamental rights protection; rather, the commitment to inclusive growth has been interpreted by the Commission as requiring the integration of Roma into the economic and social orders of the Member States.

The article presents the normative case for the new Commonwealth model as a novel third way of organizing basic institutional arrangements in a democracy and an alternative to the conventional dichotomy of legal or political constitutionalism. In so doing, it engages with the latest contributions to the debate about the merits of judicial review, and argues that the new model radically and compellingly permits a form of “proportional representation” among the best arguments for and against the practice rather than the “warts-and-all” of the traditional either/or approach. In this way, the new model is to forms of constitutionalism what the mixed economy is to forms of economic organization: a distinct and appealing third way in between two purer but flawed extremes. Just as the mixed economy is a hybrid economic form combining the core benefits of capitalism and socialism while minimizing their well-known costs, so too the new model offers an alternative to the old choice of judicial supremacy or traditional parliamentary sovereignty by combining the strengths of each while avoiding their major weaknesses. Like the mixed economy's countering of the lopsided allocation of power under capitalism to markets and under socialism to planning, the new model counters legal and political constitutionalism's lopsided allocations of power to courts and legislatures respectively.

On 3 February 2012, in a case brought by the Federal Republic of Germany against Italy, the ICJ decided that state immunity protects the state against compensation claims even in cases of extreme violations of human rights. With this ruling, the court established a provisional conclusion to the question of possible exceptions to state immunity in respect of jurisdictional immunity of the state and constraint measures in civil claims. This question has repeatedly arisen in recent years not only in international and European cases, but also in other national cases.