Sceptic UK can bring new ideas on bottom up democracy in Europe

Posted by ACELG on 09/04/14

The prospect of an in-out referendum in the UK in 2017 (if the Conservatives are back in power) is a fantastic incentive for politicians (and academics) to come up with new ideas on ways of governing Europe. The Brits are showing the way on how national parliaments can become more involved in holding the EU executive to account.

By Deirdre Curtin

The British input into this wider debate on the future of Europe is often ‘negative’ and defensive.  An example is the proposal by a group of UK parliamentarians to get a new power to  ‘veto’ planned EU legislation. Yet not all is negative or destructive in the UK thinking on Europe. The House of Commons is engaged in forward-looking reflection and recommendations, in particular on its own scrutiny role. In a recent report looks to consolidate a wider role for national parliaments in democratic self-government in Europe. National parliaments are after all the key actors to hold their governments (ministers and civil servants) to account for what they agree in European Council and Council meetings. This is a task that cannot be taken over by the European Parliament, but that needs to be exercised pro-actively on the ground by the parliaments in the various national capitals.

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

Posted by ACELG on 26/03/14

by Mark Dawson and Pierre Thielboerger

What kind of European Parliament (EP) will emerge from the coming European elections? The hopes of many European leaders rest on their ability to 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, and by dismissing the evolving role of the EP as a link between EU citizens and EU policy, the Court may have risked overstepping its institutional mandate.

In truth, the Court’s ruling was not wholly unexpected. In an earlier judgment – from November 2011 – the Constitutional Court struck down a 5% threshold on the grounds that this violated provisions in the German Constitution protecting the equality of voters. Recognizing the increasing preference of German voters for new political parties, the Court argued that their entry into the European Parliament would not damage the ability of that institution to function. Arousing suggestions of double-standards, the Court did not extend this line of reasoning to German regional or federal elections.

The most recent judgment follows the approach of its predecessor, arguing that ‘no significant change in the factual and legal circumstances’ has occurred since 2011. In general terms, the judgment re-enforces the low regard in which the German Court holds the EP: it is viewed largely as an institution designed to ‘re-enforce’ the legitimacy of the other EU institutions (the Commission and Council) and to hold them accountable. As such, an increasing fragmentation of the Parliament would not do similar damage in Europe as it would nationally.

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

Posted by ACELG 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’.

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Le Pen: a European representative for a nationalist Europe

Posted by ACELG on 26/02/14

Le Pen and Wilders are leading by example. They aspire to form a European political group in the European Parliament, and are openly campaigning for that goal. Many other parties are more silent on their brothers-in-arms. But voters should realise: a vote on a national candidate will strengthen the European alliance to which he or she belongs.

By Kathalijne Buitenweg

With just four months to the next European elections, Austrian, Belgian, Dutch, French, Swedish and Italian anti-immigrant and anti-European parties seem ready to join hands and organize the most European of all European campaigns ever. The nationalists are pioneering to address an electorate that stretches beyond their nation’s borders. Ms Le Pen, leader of the French Front National and candidate for the European Parliament, has announced that she wants to reach a European electorate. She hopes to profit from the fact that the far-Right alliance has united itself on a common anti-Brussels manifesto. European alliances of other political families, already existing for a longer period of time, have drafted common manifestos as well. Just as they did for previous elections. These manifestos are generally very patient and vaguely formulated pieces of paper. In all previous elections, and despite formal pretenses, the European parties have not succeeded in getting substantial European campaigns off the ground. Ironically, if Le Pen succeeds to convince voters across borders to vote for national parties that belong to her alliance, she can be regarded as the avant-garde of European campaigning. A remarkable achievement given the fact that she is ready to “to do all in her power to facilitate the collapse of the EU” (The Telegraph, 9/1/2014).

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The German Federal Constitutional Court As Part of a New European Judicial Network?

Posted by ACELG on 14/02/14

After 57 years of shouting from the sidelines, last week the Bundesverfassungsgericht (German Federal Constitutional Court; GFCC) has for the first time chosen to take part in the game.

By Christina Eckes

For the first time ever, the GFCC referred a preliminary question to the Court of Justice of the European Union (CJEU). The occasion was the ECB case, in which the GFCC was asked to decide on the constitutionality of the European Central Bank´s much debated bond buying scheme. By referring the case, the GFCC may have chosen an easy way out; yet, it has also chosen the most legitimate way of dealing with the ECB case. The CJEU is better placed to defend a judicial ruling on whether or not an EU institution has overstepped its mandate than any national court could be.

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Why it is important to have truly European elections to the European Parliament

Posted by ACELG on 22/01/14

The 2014 election campaigns are about to kick off – and they are supposed to be different this time.

By Eljalill Tauschinsky

In contrast to former elections, this year they are supposed to be more concrete, with each European party nominating top candidates. But more than that, they are supposed to be pan-European, making European, not national, issues count for the election decision. This latter feature presents a real change in the way the European polity works.

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Complaining about a decision that we agreed to ourselves cuts us a strange figure

Posted by ACELG on 07/01/14
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The Dutch last-minute criticism of Romanian and Bulgarian access to its labour market shows how it still pays off for a national government to attack a European decision that it voted for, even long after the decision was taken and when it is clear that it cannot be reversed.

 By Maarten Hillebrandt

The Dutch debate on immigration is back with a vengeance again. The reason is that the previously imposed limitations on the right of Romanian and Bulgarian citizens to settle and work freely within the EU area have been revoked per 1 January 2014. The Netherlands is tired of the flows of immigrants, de Telegraaf reported recently. The Netherlands’ most widely read daily relied on a recent poll which indicates that as much as 80% of Dutch nationals oppose the full opening of Dutch borders for other European citizens. Tellingly, this percentages does not go below 50% with voters of any of the political parties, including the generally strongly pro-European, centrist Democratic Party (53%).

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Surveillance under a veil of Secrecy: Do oversight bodies oversee or overlook?

Posted by ACELG on 04/11/13
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 The recent revelation about the scope of surveillance has been shocking even for national leaders, who are generally aware of secret national security programmes and their implications. But the debate should also focus on another very important point: the responsibility of our legislators.

By Vigjilenca Abazi

The revelation of NSA surveillance brings a new dimension to the very old debate on government secrecy vs. citizens’ privacy:  its scope. It is the scope of surveillance that has actually surprised national leaders and led them to a strong reaction, which one could agree is intended for “public consumption” as opposed to genuine concern for privacy protection. However, a draft UN Resolution declaring a deep concern for human right violations circulated by Chancellor Angela Merkel and President Dilma Rousseff, two national leaders whose phones were tapped, seem to raise more alarm than a mere PR response. Besides phone tapping of national leaders, in only one month 70 million French and 1.5 million Dutch citizens’ phone were also tapped.

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The EU-Turkey Association and the Court of Justice:Back to the Future…and Return to the Past

Posted by ACELG on 02/10/13

There was some hope that the 50th anniversary of the EU Turkey Association would coincide with a judgment of European Court of Justice favorable to Turkish citizens whishing to travel visa free to the EU. Alas, the contrary occurred when the Court in its long awaited Demirkan ruling marred the already gloomy ‘festivities’ marking the anniversary of Europe’s oldest association with a third country.

By Thomas Vandamme

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Why we should agree to disagree on whether to cultivate genetically modified organisms in the European Union

The demand to transfer powers from the EU back to the national level is politically en-vogue in several EU Member States at the moment. EU policy on agricultural biotechnology, however, is an interesting exception. The Council of Ministers has recently deadlocked[1] a Commission legislative proposal to re-nationalise parts of EU legislation on the cultivation of genetically modified organisms (GMOs). The proposed legislation would grant Member States the right to restrict or prohibit GMO cultivation in their territory. Earlier this year, the Commission put on pressure by announcing to freeze all pending EU authorizations of GMO cultivation until Council members reach an agreement. It is, indeed, high time to complete this reform process, and to agree to disagree on GMO cultivation in Europe.

By Maria Weimer

Where common EU solutions are not possible due to both high politicization and strong socio-economic and cultural diversity among the Member States, a differentiated approach allowing national opt-outs on GMO cultivation is the only viable path towards both more effective and democratic risk regulation. It would not only strengthen the democratic accountability of national governments vis-à-vis their citizens, but also offer the chance to engage in a less polarized democratic deliberation about the costs and benefits of green biotechnology. The Member States in the Council (especially the blocking members France, Germany, Belgium, and the UK) should therefore finally stop the political blame shifting, overcome their differences, and complete the legislative reform process on national opt-outs.

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