Bruno De Witte

Anticipating the Institutional Consequences of Expanded Membership of the European Union

The coming Eastern enlargement of the European Union is seen by governments of the present member states, and by eu institutions, as threatening the eu institutional systems capacity to act, more so than any of the preceding enlargements. This article explores the origins of this concern, examines the way the eu states have sought to address it by means of treaty reforms (the last of which was agreed by the Nice European Council of December 2000), and addresses some other institutional challenges that should be dealt with before enlargement occurs.The coming Eastern enlargement of the European Union is seen by governments of the present member states, and by eu institutions, as threatening the eu institutional systems capacity to act, more so than any of the preceding enlargements. This article explores the origins of this concern, examines the way the eu states have sought to address it by means of treaty reforms (the last of which was agreed by the Nice European Council of December 2000), and addresses some other institutional challenges that should be dealt with before enlargement occurs.

Euro crisis responses and the EU legal order: Increased institutional variation or constitutional mutation?

Euro crisis reforms as major example of interstitial institutional change in the EU - Forms of institutional change : unusual sources of law, new tasks for the EU institutions, new organs, competence creep, institutional hybrids, and more differentiated integration - Question whether some or all of this amounts to a ?constitutional mutation? of the EU legal order - Reasons to doubt whether the constitutional fundamentals have changed - Alternative thesis: increased institutional variation, deepening the differences between EMU law and the rest of EU law.

The crumbling public/private divide: horizontality in European anti-discrimination law

The European Union has conducted, during the last decade, an active policy of adopting anti-discrimination directives that aim at ensuring greater convergence between member-state laws in this domain. One aspect of this evolution is that the relevant EU legislation forces some states to reconsider their traditional view that fundamental rights should be binding and enforceable only against state authorities and not against private bodies and individuals. This Europe-driven ‘horizontalization’ of anti-discrimination law is a major challenge for many national legal systems and contributes to the emergence of new but not uncontroversial conceptions of inclusive citizenship.

Legal Instruments and Law-Making in the Lisbon Treaty

The system of sources of EU law consists roughly speaking of five major elements: at the summit of the legal hierarchy are the founding (or ‘basic’) Treaties themselves, essentially the EC and EU Treaty; next in rank are the unwritten general principles of EU law which play an important role in the case law of the ECJ; then come the international agreements concluded by the EC and the EU which must be in conformity with the founding Treaties and the general principles but prevail over the rest of EU law; then we have the binding acts adopted by the EU institutions; and finally (a distinctive characteristic of EU law) a proliferation of various semilegal acts known under the generic name of ‘soft law’. The Lisbon Treaty will leave these five major components1 as well as their hierarchical relationship intact, with one complication, namely the fact that fundamental rights will have an ambiguous legal status: they will partake of the supreme legal status accorded to the founding Treaties (through the renvoi clause of Article 6(1) TEU-L), but will also continue to be part of the general principles of Union law.

The legal status of the Charter: vital question or non-issue?

Through a ‘Decision’ taken at its Cologne meeting of June 1999, the European Council set in motion the process of drafting the European Union Charter of fundamental rights. As for the outcome of this drafting process, the Decision specified that ‘the European Council [meeting in December 2000] will propose to the European Parliament and the Commission that, together with the Council, they should solemnly proclaim on the basis of the draft document a European Charter of fundamental rights. It will then have to be considered whether and, if so, how the Charter should be integrated into the treaties’. 1

From a Common Principle of Equality to European Antidiscrimination Law

The principle of equality is an important part of the contemporary constitutional law of all European countries. It is therefore a “common” principle, and was, as such, also integrated in the legal system of the European Communities. However, this common principle of equality was modernized and modified by a series of specific antidiscrimination laws adopted in the European Union, mainly during the past decade. This contribution explores the ways in which those recent antidiscrimination laws have modified the traditional understanding of equality law in Europe and are giving “teeth” to the abstract principle of equality.

The Nice Declaration: Time for a Constitutional Treaty of the European Union?

During the Nice European Council meeting in December 2000, the heads of government approved a Declaration on the Future of the European Union.1 This Declaration is not a legally binding text, but is to be annexed to the text of the Treaty of Nice at the time of its signature. It is another of those “rendez-vous clauses” that the member states of the European Union agree upon when adopting a reform of the European treaties: each time, the reform compromise is not entirely satisfactory to all, so a commitment is made to look again at some unresolved issues on a future occasion. This time, the agreement is to launch “a deeper and wider debate about the future development of the European Union”, which will go through several phases and end with a new intergovernmental conference (ICG) on treaty revision in 2004. Although the words “constitution” and “constitutional” are carefully avoided in the Declaration (these terms being unacceptable to some European governments), the post-Nice process is already widely known as the debate on a constitution for the European Union. This article aims at clarifying some aspects of this new debate.

New institutions for promoting equality in Europe: legal transfers, national bricolage and European governance

The recent evolution of european union equality law, and the equality law of single european countries, is marked by the increased attention given to the procedural and institutional preconditions for the effective protection against discrimination. In this context, the creation of public bodies specially tasked with the promotion of equal treatment (equality institutions), which used to be a specific feature of only some european countries, such as the united kingdom and the netherlands, as well as some non-european countries such as the united states, is now common all over europe. The immediate reason for this development is that equality institutions have been imposed on all eu member states by means of a series of eu directives in the early years of this century. From a comparative law perspective, we can observe here an interesting example of legal transfer which leaves much room for bricolage at the national level, and has given rise to a hybrid legal regime which combines legal rights with softer mechanisms of governance.

National equality institutions and the domestication of EU non-discrimination law

The recent evolution of European Union equality law, and the equality law of European countries more generally, is marked by the increased attention given to the procedural and institutional preconditions for the effective protection of equal treatment. The creation of public bodies, specifically tasked with the advancement of equality law and equality policies (equality institutions), is an important element of this evolution. Within Europe, they were first experimented with in the United Kingdom and then gradually adopted in a small number of other countries. In 2000 and subsequent years, though, the creation of equality institutions was imposed on all EU Member States by means of three anti-discrimination Directives. The concrete shape and scope of activity of those institutions is still very different from country to country, though. The development of new equality institutions in Europe was facilitated by other legal traditions and processes: the separate ombudsman tradition developed in Scandinavia but with a strong influence also in Southern Europe; the international movement towards the creation of national human rights institutions; and endogenous developments of EU law, such as its increased concern for the institutional dimension of the effective application of EU law, and its experimentation with new modes of governance.The recent evolution of european union equality law, and the equality law of european countries more generally, is marked by the increased attention given to the procedural and institutional preconditions for the effective protection of equal treatment. The creation of public bodies, specifically tasked with the advancement of equality law and equality policies (equality institutions), is an important element of this evolution. Within europe, they were first experimented with in the united kingdom and then gradually adopted in a small number of other countries. In 2000 and subsequent years, though, the creation of equality institutions was imposed on all eu member states by means of three anti-discrimination directives. The concrete shape and scope of activity of those institutions is still very different from country to country, though. The development of new equality institutions in europe was facilitated by other legal traditions and processes: the separate ombudsman tradition developed in scandinavia but with a strong influence also in southern europe; the international movement towards the creation of national human rights institutions; and endogenous developments of eu law, such as its increased concern for the institutional dimension of the effective application of eu law, and its experimentation with new modes of governance.

La prospettiva dell'Unione europea : dare preminenza al mercato interno o rivedere la dottrina Laval?

La Corte del lavoro svedese ha deciso il caso Laval con sentenza del 2 dicembre 2009. Essa ha applicato ai privati i principi del diritto dell’Unione relativi alla responsabilita dello Stato al fine di condannare al risarcimento dei danni un’organizzazione sindacale per aver intrapreso un’azione collettiva illegittima. L’ampia interpretazione del diritto europeo data dai giudici svedesi e problematica sotto diversi punti di vista. Il rinnovato quadro costituzionale europeo, a seguito dell’entrata in vigore del Trattato di Lisbona, pone in una nuova prospettiva non solo la decisione della Corte svedese, ma anche la stessa sentenza Laval della Corte di giustizia. Alla luce di cio, gli autori si chiedono se la Corte svedese abbia adottato un’interpretazione corretta con riferimento alla questione della responsabilita in caso di violazione del diritto dell’Unione, e discutono alcune delle piu vaste questioni sollevate dalla sentenza.