M. Claes

National constitutional avenues for further EU integration

This study investigates national constitutional limits to further EU integration and explores ways to overcome them. It includes an in-depth examination of the constitutional systems of 12 Member States (Croatia, the Czech Republic, Estonia, Finland, France, Germany, Hungary, Ireland, Italy, the Netherlands, Poland, and the United Kingdom) and a bird’s eye view of all Member States. EU integration can be advanced by avoiding substantive constitutional obstacles in various ways.Overcoming the substantive obstacles requires managing national procedural constitutional hurdles. This is possible to the extent that the required broad political consensus exists.

The validity and primacy of EU law and the ‘cooperative relationship’ between national constitutional courts and the European Court of Justice

This article places the Gauweiler reference in a broader comparative perspective, in two distinct ways. First, it offers a comparative analysis of the positions of other constitutional courts on the primacy of EU and national constitutional reservations, in order to test the allegation of the German Federal Constitutional Court (Bundesverfassungsgericht; FCC) that its position on ultra vires and identity review is widely shared among constitutional courts in the European Union. The analysis demonstrates that the position of the German court is much more isolated than it wants us, and the Court of Justice to believe. Secondly, the article reflects on the so far very limited participation of constitutional courts in the preliminary reference procedure, and commends the FCC for making a reference in this case, as it is the only procedural channel available for the much wanted dialogue (for want of a better word) between constitutional courts and the Court of Justice.

The EU Fundamental Rights Landscape after Opinion 2/13

On 18 December 2014, the Court of Justice of the EU ruled in its Opinion 2/13 that the EU cannot accede to the ECHR under the terms of the negotiated Draft Accession Agreement. The Opinion and the stalemate it seems to have caused, raise important questions concerning the overall landscape of fundamental rights protection in Europe. Can the Court’s objections against the Draft Accession Agreement be overcome? Can the Agreement be re-negotiated to meet these objections? What are the legal issues such negotiations will have to solve? Is non-accession an option? What could the European system of human rights protection look like without accession? And what are the foreseeable consequences of accession or no accession for national courts? This joint working paper results from a workshop held at Maastricht University on 26 June 2015, which brought together academics and practitioners, members of negotiating teams and judges from the ECtHR, the CJEU and national courts, to discuss the consequences of Opinion 2/13 for broader issues of fundamental rights protection in Europe, and will examine future perspectives for accession of the EU to the ECHR.

Editorial: A Constitutional Moment: Acceding to the ECHR (or not)

The Court of Justice of the European Union has spoken: accession to the European Convention on Human Rights on the terms specified in the Draft Accession Agreement incompatible with Union law as it stands and as established by the Court of Justice. Few really expected this outcome - all the more since the Court had put its stamp on some essential elements in the negotiations, by an unprecedented and increasingly explicit institutional intervention in the lead-up to the draft accession agreement - or should that have been a warning? The decision whether to accede to the EECHRis not for the Court to determine. This is ultimately for the member states to decide, either qua members of the Council as the EEUtreaty-making power, or member states as masters of the EEUTreaties in the framework of the amendment procedure - this follows from Article 218(11) TTFEU(though the European Parliament and Commission will inevitably be involved in both instances)

A Constitutional Moment: Acceding to the ECHR (or not)

The Court of Justice of the European Union has spoken: accession to the European Convention on Human Rights on the terms specified in the Draft Accession Agreement incompatible with Union law as it stands and as established by the Court of Justice. Few really expected this outcome - all the more since the Court had put its stamp on some essential elements in the negotiations, by an unprecedented and increasingly explicit institutional intervention in the lead-up to the draft accession agreement - or should that have been a warning? The decision whether to accede to the EECHRis not for the Court to determine. This is ultimately for the member states to decide, either qua members of the Council as the EEUtreaty-making power, or member states as masters of the EEUTreaties in the framework of the amendment procedure - this follows from Article 218(11) TTFEU(though the European Parliament and Commission will inevitably be involved in both instances)

A constitutional moment. Acceding to the ECHR (or not) (Editorial)

The Court of Justice of the European Union has spoken: accession to the European Convention on Human Rights on the terms specified in the Draft Accession Agreement incompatible with Union law as it stands and as established by the Court of Justice. Few really expected this outcome - all the more since the Court had put its stamp on some essential elements in the negotiations, by an unprecedented and increasingly explicit institutional intervention in the lead-up to the draft accession agreement - or should that have been a warning? The decision whether to accede to the EECHRis not for the Court to determine. This is ultimately for the member states to decide, either qua members of the Council as the EEUtreaty-making power, or member states as masters of the EEUTreaties in the framework of the amendment procedure - this follows from Article 218(11) TTFEU(though the European Parliament and Commission will inevitably be involved in both instances)

Concluding remarks and an invitation

Th e days that the Court of Justice (CJEU) could shape European Union law and defi ne the direction of European integration, ‘tucked away in the fairy-tale Duchy of Luxembourg and blessed (...) with benign neglect by the powers that be and the mass media (...)’1 are over. Th e functioning of the Court of Justice, its ‘numerical performance’ or quantitative output, the quality of its legal reasoning, its methods of interpretation and its interaction with the institutions and the Member States are a permanent object of academic interest. And so they should: like other highest courts, the Court of Justice is and should be sensitive to the professional criticism voiced by the EU law community or EU law communities.2 Individual decisions of the Court are commented on and critiqued in legal journals, and are no longer simply presented as ‘the inevitable working out of the correct implications of the constitutional text’.3 Th e Court’s interpretative choices and their implications for European and national policies are scrutinized and contextualized.4 Beyond the individual cases, the functioning of the Court, and its role in European integration is an evergreen in legal scholarship and political science, and more recently, historians have also begun to study the Court.5 Endless proposals for reform have been formulated over the years to tackle the backlog, push the Court to adapt its judicial style and be

From confederacy to convoy: thoughts about the finality of the Union and its member states

We as constitutionalists owe it to ourselves and even to the 500 million other citizens of a member state and of the Union at the same time, to come up with a legally and constitutionally readable understanding of the situation. It must not be one suffering from the split between international and domestic public law. It must not mystify the Union as a completely original structure, intelligible only in its own terms. Such understanding should encompass not only the limits but also the logic of the situation; not only its mechanics but also its evolution. It should be intelligible for the public. It should allow for the multiple dualities of loyalty, of function, of legitimacy. It should allow for shared authority. Constitutional thought is well equipped to deal with actual duality and ambivalence. These characteristics of the Union are real and are here to stay.