Jürgen Bast

The Constitutional Treaty as a Reflexive Constitution

The “Treaty establishing a Constitution for Europe” elicits divergent scholarly responses. An apologetic view holds that it is the best of all possible constitutions,1 given the current constellations of political forces. Such a viewpoint is countered by a mixed choir of critics for whom the document is simply another treaty,2 a “nostalgic project,”3 or a merely “semantic constitution.”4 Some even believe that the recourse to constitutional rhetoric endangers the rational substance of the European status quo;5 others fear that this very conceptuality could be damaged.6 The present chapter endeavors to find a third approach. It offers a critical stance as regards the unfortunate, phraseological, sometimes even ideological language of the Constitutional Treaty. Simultaneously, the constitutional text is taken seriously in its normative statements. This approach aims to reconstruct the document from a point of view which depicts it, despite its contradictions, as a project with a rightful place in the tradition of Western constitutionalism.

The Legal Position of Migrants — German Report

A report on the legal position of migrants has to first clarify who, in the context particular to Germany, should be regarded as a ‘migrant’. A definition of the term could be based on the assumption that migration, or more specifically international migration, is a social phenomenon involving people who, at least once in their lifetime and for whatever reasons, made the decision to move across an international border in order to relocate in a country different from their origin. For the purpose of this report, this definition seems overly inclusive, for two reasons. First, German nationals are not a proper subject of investigation, although they statistically form the largest migrating nationality per year — both with respect to expatriation and repatriation.1 Taking into account that international law and German constitutional law guarantee them an unrestricted right to leave and return,2 the legal regime that is relevant to them would not be of significant interest here. There is one caveat to this preclusion. The term ‘Germans’ as defined in Art. 116 Basic Law (Grundgesetz, the German Constitution) includes ethnic Germans living abroad who actually do not hold German nationality. These Germans and their relatives obtain German nationality with their recognition under a statutory procedure, which occurs immediately after their arrival. They are usually not covered by statistical data on the migrant population.

Deepening Supranational Integration: Interstate Solidarity in EU Migration Law

The present paper discusses the concept of solidarity in the Dublin System for determining the State responsible for examining an application for asylum in the EU. This case is especially critical because the Dublin System has given rise to sharp conflicts pertaining to interstate solidarity. It is only at first glance paradoxical that the non-hierarchical, cooperative idea of mutual solidarity is being called upon just at the moment that EU Member States have integrated themselves even further into the hierarchical framework of a quasi-federal structure with the Treaty of Lisbon. Solidarity in EU law aims to compensate an unequal distribution of costs and benefits caused by measures taken on the path to furthering supranational integration. The increasing demand for interstate solidarity is a natural corollary of the process of transitioning to a federation or, as Habermas put it, the anticipation of new political forms of integration.

Handlungsformen und Rechtsschutz

Fur den langjahrigen Richter am EuGH Pescatore liegt das Geheimnis des Erfolgs der europaischen Integrationsgemeinschaft in ihren Rechtsquellen – im Auftreten einer multinationalen Legislative, fur deren Artikulationen ein ganzes Arsenal von hoheitlichen Handlungsformen zur Verfugung steht. Das „System der institutionellen Akte“ der Gemeinschaftsvertrage, in dem die Einzelnen und die Mitgliedstaaten gleichermasen den Platz von einseitig Verpflichteten einnehmen, markiert fur ihn die qualitative Differenz zu den kontraktualistischen Formen des Volkerrechts.

European Ungleichzeitigkeit: Introductory Remarks on a Binational Discussion about Unity in the European Union

The multitude and overlap of times is one of the somewhat unsettling yet characteristic features of modernity. Since the French Revolution, history has lost its exclusive meaning as measurement for the natural chronology of events, but took on a second meaning according to which periods in time are understood as eras and connected to specific sets of ideas.1 Henceforth, otherwise overcome ideas could stay on, times and histories can superimpose each other. Ernst Bloch has termed the effects of this overlap of times as ‘Ungleichzeitigkeit’ (non-synchronism).2 The present, according to Bloch, can reflect simultaneously various and often discrepant histories, pre-histories and futures. Pasts can persist, futures can linger, different layers of time can coexist concomitantly.