scholarly journals Reflections on the ‘Administrative, Not Constitutional’ Character of EU Law in Times of Crisis

2017 ◽  
Vol 9 (2) ◽  
pp. E-1-E-18
Author(s):  
Peter L. Lindseth
Keyword(s):  
European Integration ◽  
National Level ◽  
Eu Law ◽  
National Parliaments ◽  
The Public ◽  
Eu Governance ◽  
National Courts ◽  
Administrative Legitimacy ◽  
Constitutional Legitimacy ◽  
Dominant Paradigm

Abstract As is broadly recognized, the realm of administrative power greatly expanded over the course the twentieth century (particularly after 1945). This essay argues that this expansion, along with differential conceptions of legitimacy deeply bound up with it, are crucial to understanding not just the modern administrative state but also the nature of EU governance and the law governing its operation. Despite a dominant paradigm that seeks to understand EU governance in autonomously democratic and constitutional terms, the legitimacy of integration as a whole has remained primarily ‘administrative, not constitutional’. The EU’s normative power, like all power of an ultimately administrative character, finds its legitimacy primarily in legal, technocratic and functional claims. This is not to deny that European integration involves ‘politics’ or has profound ‘constitutional’ implications for its member states or citizens. The ‘administrative, not constitutional’ paradigm is meant only to stress that the ultimate grounding of EU rulemaking, enforcement, and adjudication comes closer to the sort of administrative legitimacy that is mediated through national executives, national courts, and national parliaments to a much greater extent than the dominant paradigm supposes. This is the reality that the ‘administrative, not constitutional’ paradigm on EU law has always sought to emphasize, and it is one that is particularly pertinent to the integration process in times of crisis. It is unsurprising, in these circumstances, that the public law of European integration has continually resorted to mechanisms of nationally mediated legitimacy in order to ‘borrow’ legitimacy from the national level. Unless and until Europeans begin to experience democracy and constitutionalism in supranational terms, the ‘administrative, not constitutional’ paradigm suggests that the EU’s judicial doctrines must be adjusted. The purpose should be to address the persistent disconnect between supranational regulatory power and its robust sources of democratic and constitutional legitimacy on the national level.

Equilibrium, Demoi-cracy, and Delegation in the Crisis of European Integration

2014 ◽  
Vol 15 (4) ◽  
pp. 529-567 ◽  
Author(s):  
Peter L. Lindseth
Keyword(s):  
European Integration ◽  
Public Law ◽  
International Perspective ◽  
Central Idea ◽  
The Public ◽  
Work Breaks ◽  
Administrative Governance ◽  
The Relationship ◽  
Constitutional Legitimacy ◽  
Micro Foundations

As my work has argued previously, European integration enjoys an “administrative, not constitutional” legitimacy. This view is in obvious tension with the deeply-rooted conceptual framework—what we might call the “constitutional, not international” perspective—that has dominated the public-law scholarship of European integration over many decades. Although the alternative presented in my work breaks from that traditional perspective, we should not view it as an all-or-nothing rejection of everything that has come before it. The administrative alternative can be seen, rather, as providing legal-historical micro-foundations for certain theories that also emerged out of the traditional perspective even as they too are in tension with it. I am referring in particular to Joseph Weiler's classic notion of European “equilibrium”—now updated as “constitutional tolerance”—as well as Kalypso Nicolaïdis's more recently developed theory of European “demoi-cracy” on which this article focuses in particular. The central idea behind the “administrative, not constitutional” interpretation—the historical-constructivist principal-agent framework rooted in delegation, as well as the balance demanded between supranational regulatory power and national democratic and constitutional legitimacy— directly complements both theories. The administrative alternative suggests how the relationship between national principals and supranational agents is one of “mediated legitimacy” rather than direct control. It has its origins in the evolution of administrative governance in relation to representative government over the course of the twentieth century (indeed before). By drawing on the normative lessons of that history—notably the need for some form of national oversight as well as enforcement of outer constraints on supranational delegation in order to preserve national democratic and constitutional legitimacy in a recognizable sense—this article serves an additional purpose. It suggests how theories of European equilibrium and demoi-cracy might be translated into concrete legal proposals for a more sustainable form of integration over time—a pressing challenge in the context of the continuing crisis of European integration.

scholarly journals National Security Concerns as an Exception to EU Standards on Data Protection

2021 ◽  
Vol 4 (2) ◽  
pp. 86-91
Author(s):  
Araceli Turmo
Keyword(s):  
National Level ◽  
Significant Risk ◽  
Personal Data ◽  
Fundamental Rights ◽  
Public Security ◽  
Eu Law ◽  
National Courts ◽  
Conflicting Interests ◽  
Security Concerns ◽  
The Eu

Discussions on the appropriate fundamental rights standards in the EU and the need to take into account conflicting interests are increasingly being reframed as debates on the conflict between the primacy of EU law and the constitutional standards of the Member States. One example of this reframing is the French administrative supreme court’s decision following the ECJ judgment in La Quadrature du Net. The Conseil ruled that the EU standards set in that judgment must be reviewed, at the national level, with regard to a national understanding of security concerns and the requirements of the fight against terrorism. Thus, constitutional requirements related to public security may be relied upon to argue for a lower standard of protection of personal data than those which the ECJ requires. As this decision shows, the ability of corporations and Governments to rely on litigation before national courts to challenge the standard of protection set at the EU level creates a significant risk, not only for the uniformity of EU law, but also for the protection of the rights of individuals. 

scholarly journals Parallele Anwendbarkeit von Grundrechtecharta der EU und nationalen Grundrechten

2018 ◽  
Vol 28 ◽  
pp. 9-16
Author(s):  
Ivo Pilving
Keyword(s):  
National Level ◽  
National Court ◽  
Fundamental Rights ◽  
Parallel Analysis ◽  
Constitutional Rights ◽  
Eu Law ◽  
National Courts ◽  
Decisive Importance ◽  
Charter Of Fundamental Rights ◽  
National Constitution

Pursuant to its Article 51 (1), the EU Charter of Fundamental Rights covers the implementation of EU law. Since 2014, the Estonian Supreme Court has applied the assumption that the Charter, in principle, does not preclude parallel applicability of national-level fundamental rights in areas subject to EU law, although the primacy, unity, and effectiveness of EU law must not be compromised thereby. The Member State's margin of appreciation should not be considered a precondition for the relevance of national fundamental rights. Even mandatory norms of EU law, which inevitably require certain national measures (e.g., permission to use a piece of music for sampling as in CJEU case C-476/17: Pelham), do not exclude the applicability of constitutional rights (here, the composer's copyright), though these can justify their restriction. Hence, the relevant piece of EU legislation itself must be valid. The CJEU should follow the principle of constitutional plurality in dialogue with national courts when examining the validity of EU norms restricting national fundamental rights. A parallel analysis of the national constitution and Charter by the competent national court would assist the CJEU in issuing a preliminary ruling. The most favourable standard of the fundamental rights in sense of the Article 53 should not be determined on merely abstract terms. Instead, the results of parallel analysis in light of the pending case should be of decisive importance. One conclusion presented is that in cases of multipolar conflict, there remains the possibility that a even fundamental right of one person that is derived from a national constitution can sometimes justify infringement on the charter-based right of another if there is no secondary legal balance of legal positions. In addition, exceptional situations might exist wherein fundamental principles of national constitutions may be granted precedence over the effectiveness of EU law.

scholarly journals New Challenges for European Comparative Law: The Judicial Reception of EU Non-Discrimination Law and a turn to a Multi-layered Culturally-informed Comparative Law Method for a better Understanding of the EU Harmonization

2017 ◽  
Vol 18 (3) ◽  
pp. 721-770 ◽  
Author(s):  
Jule Mulder
Keyword(s):  
National Level ◽  
Comparative Law ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
National Courts ◽  
Culturally Informed ◽  
Harmonization Process ◽  
Legal Harmonization ◽  
The Eu

This article argues that comparative law needs to explore its critical potential when engaging with the European harmonization process and its effects on the law of the Member States. In the first part, the article evaluates existing comparative law methods and their suitability to identify legal and cultural factors that influence the judicial reception of EU harmonized law on a national level. Using EU non-discrimination law as a case study, it questions to what extent traditional methods are suitable to explain differences in the national judicial reception of EU harmonized law, despite the exclusive competence of the Court of Justice of the European Union to interpret EU law. In doing so, it considers the potential of critical comparative law for the development of a deeper understanding of the national courts' reception of EU harmonized law as a key part of the broader legal harmonization process. In the second part, the article develops an original multi-layered culturally informed method to compare EU harmonized law. The proposal goes beyond the existing methods of comparative law by including critical aspects and stressing the relevance of embedding a general normative framework in any comparative critique. It challenges comparatists to reach deeply into national cultural spheres and to identify key influences on the application of EU rules and EU-national legal ‘hybrids’. The method creates room for multi-layered narratives of comparison aimed at gaining a deeper understanding of the national legal and non-legal cultural background that can hinder or facilitate harmonization processes. This enriched comparative critique can offer new insights into the process of legal harmonization in the EU, particularly by focusing on the point of application rather than the previous phases of creation of EU law and its reception by Member States.

The Wild Has No Words: Environmental NGOs Empowered to Speak for Protected Species as Swedish Courts Apply EU and International Environmental Law

2013 ◽  
Vol 10 (3) ◽  
pp. 250-261 ◽  
Author(s):  
Yaffa Epstein ◽  
Yaffa Epstein ◽  
Jan Darpö
Keyword(s):  
Public Interest ◽  
Environmental Law ◽  
Brown Bear ◽  
Habitats Directive ◽  
Eu Law ◽  
The Public ◽  
Environmental Ngos ◽  
Procedural Law ◽  
National Courts ◽  
The Government

The Stockholm Administrative Court recently ruled that Sweden’s wolf management policies are incompatible with the Habitats Directive. These policies are also the subject of an on-going infringement proceeding by the European Commission. The administrative court’s decision has been appealed. This case is significant for two reasons. First, it interprets controversial provisions of the Habitats Directive. But perhaps more importantly, it demonstrates the growing impact of EU law in a member state. This was the first major case in which the national courts were able to review a hunting decision pertaining to a species protected under EU law because standing to bring public interest lawsuits for the protection of species has been recognized only very recently. Under traditional Swedish procedural law, only the government can represent the public interest in administrative decision making and in court. Here, Swedish courts finally applied to hunting decisions the CJEU’s holding in Slovak Brown Bear, which says that national procedural law must be interpreted so as to allow environmental NGOs to challenge administrative decisions that might contravene EU environmental law. The court did not request a preliminary ruling despite that fact that controversial questions of EU law were implicated however. While the court applied EU law, it preferred to maintain control over its interpretation.

European Integration and National Courts: Defending Sovereignty under Institutional Constraints?

2013 ◽  
Vol 9 (1) ◽  
pp. 139-168 ◽  
Author(s):  
Arthur Dyevre
Keyword(s):  
European Integration ◽  
Significant Influence ◽  
Legal System ◽  
Public Support ◽  
Institutional Constraints ◽  
Eu Law ◽  
National Courts ◽  
Domestic Law ◽  
Legal Integration ◽  
Conflicting Goals

Response of national highest courts to the ECJ's integrationist agenda – Logic behind qualified acceptance of EU law supremacy and direct effect – Several possible explanations for the observed inter-court variation: the courts’ type and organisation; their power to review legislative acts under domestic law; the rules governing access to the judicial forum; the monistic tradition of the legal system and the level of public support for European integration – Assessment of empirical validity of these hypotheses using a new dataset coding the doctrinal positions and institutional constraints of 34 domestic highest courts – Most correlations small – Only one variable – the power to review statutory legislation under national law – appears to have a significant influence on the courts’ doctrinal response to legal integration – Some support for the argument that the varying institutional constraints and incentives under which highest court judges operate shape the way they accommodate and reconcile two conflicting goals

scholarly journals Judicial Review of Administrative Action at National Level under the EU Charter of Fundamental Rights and General Principles of EU Law

2020 ◽  
Vol 18 (1) ◽  
pp. 25-49
Author(s):  
Mihaela Vrabie
Keyword(s):  
Judicial Review ◽  
National Level ◽  
Fundamental Rights ◽  
Eu Law ◽  
Member States ◽  
National Courts ◽  
Charter Of Fundamental Rights ◽  
The Impact ◽  
Eu Fundamental Rights ◽  
The Eu

This article aims to determine when the national authorities have the obligation to comply with EU fundamental rights, in the framework of administrative procedures carried out in the EU Member States. It also aims to determine the legal remedies available at national level in the context of judicial review in case of violation, by the national authorities, of EU fundamental rights guaranteed by the Charter of Fundamental Rights of the EU or as general principles of EU law. To this end, this study explains the impact of the legally binding EU Charter on public administration of the Member States and the field of application of the EU Charter at national level. The article also deals with the distinction between EU fundamental rights as primary EU law guaranteed by the EU Charter and EU fundamental rights as general principles of EU law. With reference to the judicial remedies available to national courts, the study outlines the effects of EU law (primacy of EU law, direct effect, direct application) in relation to the EU fundamental rights and the measures that can be adopted by the national courts when the action of the national administrative authorities is not compatible with EU fundamental rights. Finally, the article presents the most important findings concerning judicial protection of EU fundamental rights at the national level, especially from the perspective of the right to an effective remedy and to a fair trial stipulated by Article 47 of the EU Charter.  

scholarly journals Parallele Anwendbarkeit von Grundrechtecharta der EU und nationalen Grundrechten

2019 ◽  
Vol 28 ◽  
pp. 9-16
Author(s):  
Ivo Pilving
Keyword(s):  
National Level ◽  
National Court ◽  
Fundamental Rights ◽  
Parallel Analysis ◽  
Constitutional Rights ◽  
Eu Law ◽  
National Courts ◽  
Decisive Importance ◽  
Charter Of Fundamental Rights ◽  
National Constitution

Pursuant to its Article 51 (1), the EU Charter of Fundamental Rights covers the implementation of EU law. Since 2014, the Estonian Supreme Court has applied the assumption that the Charter, in principle, does not preclude parallel applicability of national-level fundamental rights in areas subject to EU law, although the primacy, unity, and effectiveness of EU law must not be compromised thereby. The Member State's margin of appreciation should not be considered a precondition for the relevance of national fundamental rights. Even mandatory norms of EU law, which inevitably require certain national measures (e.g., permission to use a piece of music for sampling as in CJEU case C-476/17: Pelham), do not exclude the applicability of constitutional rights (here, the composer's copyright), though these can justify their restriction. Hence, the relevant piece of EU legislation itself must be valid. The CJEU should follow the principle of constitutional plurality in dialogue with national courts when examining the validity of EU norms restricting national fundamental rights. A parallel analysis of the national constitution and Charter by the competent national court would assist the CJEU in issuing a preliminary ruling. The most favourable standard of the fundamental rights in sense of the Article 53 should not be determined on merely abstract terms. Instead, the results of parallel analysis in light of the pending case should be of decisive importance. One conclusion presented is that in cases of multipolar conflict, there remains the possibility that a even fundamental right of one person that is derived from a national constitution can sometimes justify infringement on the charter-based right of another if there is no secondary legal balance of legal positions. In addition, exceptional situations might exist wherein fundamental principles of national constitutions may be granted precedence over the effectiveness of EU law.

Constitutional Pluralism and Transnational Justice

2018 ◽  
Author(s):  
Alec Stone Sweet ◽  
Clare Ryan
Keyword(s):  
National Level ◽  
Legal Order ◽  
Rights Protection ◽  
National Courts ◽  
European Court ◽  
Transnational Justice ◽  
Multi Level ◽  
Constitutional Pluralism ◽  
Combined Impact ◽  
Proportionality Principle

In Europe, a cosmopolitan legal order was instantiated through the combined impact of Protocol no. 11 of the ECHR (1998), and the incorporation of the Convention into national legal systems. As a result, two processes—(i) the evolution of constitutional pluralism at the national level; and (ii) the development of rights protection at the transnational level—became causally connected to one another. The first undermined traditional models of domestic orders wherein the notions of constitutional unity and centralized sovereignty reinforced one another. The second process created a multi-level legal system whose effectiveness depends on the extent to which the European Court is able to induce and sustain the cooperation of national courts and officials. The constitutionalization of the proportionality principle, at both the domestic and transnational levels, provided a doctrinal interface for inter-jurisdictional dialogue, and the collective enforcement of the UPR.

Review by Constitutional Courts of the Obligation of National Courts of Last Instance to Refer a Preliminary Question to the Court of Justice of the EU

2015 ◽  
Vol 16 (6) ◽  
pp. 1663-1700 ◽  
Author(s):  
Clelia Lacchi
Keyword(s):  
European Union ◽  
Eu Law ◽  
The European Union ◽  
Constitutional Courts ◽  
Member States ◽  
Constitutional Review ◽  
National Courts ◽  
Court Of Justice ◽  
Judicial Remedy ◽  
The Eu

The Constitutional Courts of a number of Member States exert a constitutional review on the obligation of national courts of last instance to make a reference for a preliminary ruling to the Court of Justice of the European Union (CJEU).Pursuant to Article 267(3) TFEU, national courts of last instance, namely courts or tribunals against whose decisions there is no judicial remedy under national law, are required to refer to the CJEU for a preliminary question related to the interpretation of the Treaties or the validity and interpretation of acts of European Union (EU) institutions. The CJEU specified the exceptions to this obligation inCILFIT. Indeed, national courts of last instance have a crucial role according to the devolution to national judges of the task of ensuring, in collaboration with the CJEU, the full application of EU law in all Member States and the judicial protection of individuals’ rights under EU law. With preliminary references as the keystone of the EU judicial system, the cooperation of national judges with the CJEU forms part of the EU constitutional structure in accordance with Article 19(1) TEU.

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