Jacques Ziller

Public law: a tool for modern management, not an impediment to reform

In order to appreciate that public law is capable of operating as a tool for modern public management rather than an impediment to reform, it is necessary to overcome a series of confusions, clichés and misunderstandings relating to the very notions of law, public management and public law. A series of confusions and misunderstandings results as much from the multiplicity of meanings attached to the terms used, as from ignorance of the complexities of both practice and science. Misconceptions as to concepts assumed to be different on either side of the Channel or either side of the Atlantic must be identified and dismantled. If lawyers take the trouble to delve into what law is — and public law in particular — and if the permanent temptation on the part of conservative thinking of every kind to instrumentalize law, as a supposed obstacle to change, is countered, it is possible to demonstrate that, far from being an obstacle to the reform of the state, law — and public law in particular — is capable of providing a considerable incentive to modernization, of which it is an indispensable tool.

Hauts fonctionnaires et politique en République fédérale d'Allemagne

nistration et politique dans les pays occidentaux (1) n’est nulle part aussi appropriee et 16gitime qu’en ce qui conceme la Republique f6d6rale d’Allemagne. Selon la volont6 expresse du Conseil Parlementaire de Bonn qui 61abora la Loi fondamentale du 23 mai 1949 (2), I’administration fut en effet reconstruite pour 1’essentiel a l’image de la fonction publique d6crite par Max Weber (3). Les deux principaux 616ments retenus par cette description pour ce qui est devenu le « mythe w6b6rien d’une administration instrumentale 3(4), a savoir la distinction entre fonctionnaires politiques et fonctionnaires de carriere ainsi que la neutralit6 politique du fonctionnaire de carriere, restent les fondements juridiques des rapports entre 1’administration et la politique. L’esprit juridique marqu6 pour ne pas dire le juridisme des hauts fonctionnaires allemands, dti A la position privil6gi6e des juristes dans le service sup6rieur (höherer Dienst) (5), ne peut qu’accentuer 1’importance de ces fondements dans la realite des structures comme dans la conscience des fonctionnaires. Le role de la politique et sp6cialement des partis dans la societe allemande a toutefois autant evolue que l’image que les fonctionnaires se font d’eux-m6mes, ce qui n’a pas manque de susciter 1’apparition de probl~mes nouveaux, notamment dans le domaine de la haute fonction publique qui est par nature amen6e A c6toyer de pres le monde politique, ne serait-ce qu’en tant que participant a 1’elaboration des decisions gouvemementales.

National Constitutional Concepts in the New Constitution for Europe

Notion of constitutional concept varies over time and space. Constitution for Europe as a further step in guaranteeing rights and separating powers. Amongst others French, Italian, German and Swedish national concepts in the Treaties of the European Communities and of the European Union. Several causes for difficult tracing of national concepts in the Constitution for Europe. Convention method: instead of by diplomats and EU experts, drafting by members of Parliament and (former) members of Government. More room for national concepts. The Intergovernmental Conference: the Empire strikes back, but with mixed impact. Parallels with other constitution making procedures. Concept of constitution: structure and size no argument for denying constitutional character; Constitution octroyee v. contrat social; Franco-American revolution v. British tradition.

The Law and Politics of the Ratification of the Lisbon Treaty

At the moment of writing the final draft of this paper,1 according to the official Internet page dedicated to the ratification of the Lisbon Treaty,2 the Treaty “had been approved” by ten Member States out of 27, i.e., Austria, Bulgaria, Denmark, France, Hungary, Poland, Portugal, Romania, Slovakia and Slovenia. Interestingly, while the legend to the map that appeared on this page stated: “In your country The Treaty of Lisbon, officially signed by the Heads of the Member States on 13 December 2007, will have to be ratified by each Member State in order for it to come into force”, the indications which appeared for each country made a difference between the cases where the Treaty had been “ratified” and those where it had been “approved”, stating the relevant date, e.g. 14 February for the ratification by France, 24 April for the approval by Denmark and 21 January for the approval by Slovenia.

“Unity in Diversity”: An Overused Motto—And Yet a Perfect Fit for EGPA

The kind of “diversity” which can be found within EGPA and its members belongs, at least, to three orders: cultural, disciplinary and in terms of reference model. A key question is whether this diversity is kept alive or reduced, and whether this is for the better or the worse. Diversity: it has always been strong within EGPA; it is sufficient to look at the list of the EGPA Permanent Study Groups to be convinced. Unity: more synergies within EGPA and with the other entities of the International Institute of Administrative Sciences (IIAS) family; it is a work that constantly needs to be renewed, but it certainly is beneficial to all.

Multilingualism and its Consequences in European Union Law

The multilingual nature of the EU is only too often ignored by scholars who refer to only one language version of EU primary and secondary law, and – maybe worse – of CJEU case law. This is more and more common to the authors who use only the English language version for references, albeit writing in another language. Such an attitude sometimes leads to important misunderstandings of the concepts used in EU law. Furthermore, due both to its multilingual nature and to the multiplicity of concepts to be dealt with in view of the growing number of EU Member States, scholars who are excellent specialists of domestic law very often encounter problems with EU law, due to the fact that the same words do not have the same meaning when used in EU law and in domestic law. This chapter will recall and develop the legal notion of multilingualism of EU law and its consequence, before discussing the autonomy of EU law concepts with regard to concepts that are being used with the same wording in the domestic law of EU Member States.

The Treaty of Lisbon: Constitutional Treaty, Episode II

It may be argued that — using the concept of cinematographic art — the Lisbon treaty is a ‘remake’ of the Constitutional Treaty, which would only be worth an appendix to the chapter by Derek Beach on the Constitutional Treaty. The term ‘remake’ applies most certainly to the content of the Lisbon Treaty, which only differs marginally from the content of the Constitutional Treaty. Taking into account the historical context and the dynamics of negotiations, it appears, however, that while the path to the signature and entry into force of the Lisbon Treaty has been a continuation of the Constitutional Treaty saga, it nevertheless shows several features of its own: therefore, this chapter on the Treaty of Lisbon bears as subtitle ‘Constitutional Treaty — Episode II’, as happens with films.

Il nuovo assetto dei Diritti nei trattati Europei dopo Lisbona

La problematica dei diritti e strettamente collegata alla natura pattizia della ‘costituzione’ della Comunita - ora Unione - europea come gia chiarito dalla Corte di giustizia nella sentenza Van Gend en Loos del 1963. E su questa base che vanno quindi analizzate le novita del trattato di Lisbona, per quanto riguarda diritti derivanti da obblighi degli Stati membri, che sono nuovi rispetto ai previgenti trattati CE e UE. L’autore esamina come si manifesta il carattere vincolante della Carta dei Diritti fondamentali dell’Unione europea per tutti gli Stati membri, dato che il Protocollo sulla Polonia e il Regno Unito non rappresenta una deroga al sistema di diritto UE. Infine, l’autore presenta le tre piu importanti conseguenze del carattere ormai vincolante della Carta, cioe la differenziazione tra diritti fondamentali e altri diritti, l’applicabilita di una riserva di legge e la possibilita di ricorso alla procedura di rinvio pregiudiziale per l’interpretazione della Carta.

Separation of Powers in the European Union's Intertwined System of Government - A Treaty Based Analysis for the Use of Political Scientists and Constitutional Lawyers

Analysing the EU’s System of Government on the basis of the treaties establishing the Community and the Union leads to identifying five basic government functions, which are distributed in a complex system of checks and balances between the EU institutions and between the latter and member states’ institutions. Those five functions may be characterised as legislative function, which evolved over time from rule making to law making, the executive function which consists in implementing common policies, the supervisory function, consisting of judicial review and of oversight of member state’s compliance with their treaty obligations, the function of direction, consisting of policy guidance and programming, and an organic function consisting in institutional development. The new wording of the relevant treaty clauses by the Lisbon treaty clarifies the nature and distribution of these five functions and thus enable us to understand how separation of powers is organised in the EU.

L'association des pays et territoires d'outre-mer à la Communauté européenne

Overseas countries and territories do not form part of the single market. This means that the rules and policies which accompany the single market do not apply to them, yet at the same time France’s adhesion to the European Union requires the implementation in these territories of the principles of non-discrimination on the grounds of nationality and, for those inhabitants who have French citizenship, the granting of European citizenship. Moreover, overseas countries and territories are associated to the European Community and the question of future relations between them needs to be posed.