Paul Craig

Constitutions, Constitutionalism, and the European Union

The institutional reforms of the EU, coupled with the EU Charter of Fundamental Rights, have fuelled the debate about a European Constitution. This paper begins by examining the nature of constitutions and constitutionalism. The focus then turns to the EU itself. It is argued that the Community has indeed been transformed into a constitutional legal order, and that the arguments to the contrary are not convincing. This does not however mean that the EU has, or should have, a European Constitution cognisable as such which draws together the constitutional articles of the Treaties, together with the constitutional principles articulated by the European Court of Justice. The difficulties with this strategy are examined in detail, and the conclusion is that we should not at present pursue this course. It would be better to draw on the valuable work done by the European University Institute in its recent study in order to simplify and consolidate the Treaties.

Democracy and Rule‐making Within the EC: An Empirical and Normative Assessment

The object of this article is to consider the democratic legitimacy of the structure of legislative authority which exists within the EC. The analysis draws upon the work of Joseph Weiler, and accepts that different conceptions of democracy may best explain different aspects of the Community. The present article addresses only what Joseph Weiler terms the supranational aspects of the Community and suggests that a replication model of democracy can help us to understand the division of competence in this area. While changes can undoubtedly be made which will improve the operation of democracy within this sphere of the Community, and such changes are suggested in the subsequent analysis, it is argued that the republican model provides a sound basis on which to build.

Public law and democracy in the United Kingdom and the United States of America

Dicey - unitary, self-correcting democracy, and public law pluralist democracy, groups and process - USA pluralism, process and substance - UK constitutional reform and democracy - UK liberalism - the right, the good and the scope of public law republicanism, civic virtue and participatory democracy participatory democracy - the radical view.

Subsidiarity, a Political and Legal Analysis

The concept of subsidiarity was a notable addition to the Maastricht Treaty when it was first introduced. It continues to be of political and legal significance in the post-Lisbon world. This article considers subsidiarity from a political and legal perspective. It analyses the diverse rationales behind its inclusion in the Treaty, and the reasons why it has proven difficult to realize the objectives of subsidiarity. The focus then shifts to the legal dimension and considers the role played by the EU courts in monitoring subsidiarity and suggestions that the EU courts should review subsidiarity through a form of competence-proportionality control.

The Fall and Renewal of the Commission: Accountability, Contract and Administrative Organisation

The fall of the Santer Commission, prompted by the Report of the Committee of Independent Experts, sent shock waves throughout the entire Community. This article seeks to examine the nature of the problems which beset the Commission, to place these within the broader context of decision-making by public bodies, and to consider also the responsibilities of the Council and European Parliament for the delivery of agreed Community policies. The article analyses in detail the Reports of the Committee of Independent Experts, and the subsequent reforms initiated by the Prodi Commission, in order to assess the prospects for improved service delivery in the future.

Ultra Vires and the Foundations of Judicial Review

T here is a growing literature concerning the role of the ultra vires doctrine and its place within administrative law. For some the doctrine is the central principle of administrative law, without which judicial intervention would rest on uncertain foundations. For others, it constitutes at best a harmless fiction, which is incapable of explaining all instances of judicial intervention, and at worst a device which allows the judiciary to conceal the real justifications for developments in judicial review. Christopher Forsyth falls into the former camp. He has written a vigorous defence of the ultra vires principle, contending that “it remains vital to the developed law of judicial review”. The purpose of this article is to contribute to the debate on this issue by putting the opposing view. The article will be divided into four sections.

Pringle: Legal Reasoning, Text, Purpose and Teleology

The CJEUs judgment in Pringle saved the European Stability Mechanism from invalidity. The result was unsurprising, given that the contrary conclusion would have precipitated further crisis in the financial markets. The judgment is nonetheless highly interesting and not merely for those concerned with this aspect of EU law. This is because it contains much that is of more general relevance for the very nature of legal reasoning, and the blend of text, purpose and teleology that informs legal discourse. This article addresses two of the central claims made in the case. The first was that the ESM was in reality concerned with monetary policy and not economic policy and thus fell within the exclusive competence of the EU, with the consequence that the Member States had no capacity to make the ESM. The second and most important aspect of the applicants argument was that the ESM infringed the rule against bail outs contained in the Lisbon Treaty. The CJEU also rejected this argument. It correctly identified the rationale underlying the no bail out rule, this being to prevent diminution in the incentive for financial probity by the Member States. The Court then concluded that the terms of ESM assistance entailed no such diminution. This conclusion is however problematic as will be seen in the article, and the reality is that result in Pringle can only really be sustained by the addition of a teleogical dimension to the Courts reasoning. A third dimension to the case concerned the ability of the EU institutions to participate in the ESM. Reasons of space mean that this is not examined in any detail in this article. In brief, the CJEU applied prior rulings to the effect that EU institutions are able to participate in agreements made outside the EU legal framework, provided only that they are compatible with EU law, and that the powers accorded to the EU institutions do not alter the essential character of the powers conferred on those institutions by the Treaties. The application of this rule may well have been defensible in relation to the ESM, but it nonetheless raises more general issues of principle and legitimacy that have not been explored. A subsequent article will consider the foundational, procedural and substantive issues posed by this rule.

Substantive Legitimate Expectations in Domestic and Community Law

The role played by the concept of legitimate expectations within administrative law has been the subject of much comment in recent years. The object of the present article is not to provide a general overview of the topic. My own views on this matter have been set out on an earlier occasion. The aim of this article is to focus more closely upon the extent to which legitimate expectations can have a substantive as well as a procedural dimension.

Pringle and Use of EU Institutions Outside the EU Legal Framework: Foundations, Procedure and Substance

The decision in Pringle was primarily concerned with whether the European Stability Mechanism was compatible with various substantive provisions of the Treaty, most notably the prohibition on bailouts in Article 125 TFEU. The judgement is nonetheless important for other reasons, including the legitimacy of the use of EU institutions outside the EU legal framework. It will be seen that the CJEU endorsed their use and reaffirmed earlier case law. These conclusions were analysed by Steve Peers in a helpful article, in which he was largely sympathetic to the test used by the CJEU to determine the legality of such involvement. I take a different view in the present article, which is principally concerned with the EU political institutions. It will be argued that while the CJEU’s decision may have been defensible on the facts, it raises several issues of constitutional principle which have not been explored. There is analysis of the case law, which provides the setting for the discussion thereafter. This begins with the foundations of the rule in Pringle, connoting in this respect its legal provenance and the values that underpin it. The focus then shifts to procedural concerns, given that the current legal formulation accords a broad substantive discretionary power to EU institutions to participate in such agreements, without procedural obligations to condition how or whether the power should be exercised. The final section addresses substantive concerns with the legal status quo, in which it is argued that the CJEU’s conditions for the legality of such EU institutional involvement do not provide sufficient constraints on the discretion accorded to the institution that wishes to participate in such an agreement.

The Role of the European Parliament under the Lisbon Treaty

This chapter seeks to address the likely impact of the Lisbon Treaty on the European Parliament and its role in the decision-making process. I shall begin by considering the role of the EP in relation to the legislative process, and then consider the powers accorded to the EP in relation to other matters such as the appointment of Commission and the President thereof and its power over the dismissal or censure of the Commission. It is important to understand that the formal legal powers accorded to the EP by the provisions of the Lisbon Treaty are only part of the story and that these must be seen against the backdrop of how the institutions have interacted in the past and how are they are likely to do so in the future.