Wolfgang Weiß

Human Rights in the EU: Rethinking the Role of the European Convention on Human Rights after Lisbon

Treaty of Lisbon – Fundamental Rights Charter – European Convention on Human Rights – Partial incorporation of Convention in Charter – Incorporation of Charter into EU law with Lisbon – Questions of loss of autonomy for the EU legal order – Gain in direct effect of Convention in EU member states

Biofuels and WTO Law

Climate change and energy dependence have placed alternatives to fossil energy at the centre of public perception in industrialized countries. Hence, biofuels became an ever more important issue on their political agenda, leading to an increase in demand and global trade. Applying the global trade order of the WTO to biofuels, however, raises several problems. As there is no specific trade regime for biofuels, they have to be treated according to the general rules. This necessitates first determining in detail which WTO disciplines and rules apply. The debate about how to apply WTO rules to the biofuels sector gained momentum with a famous International Food & Agricultural Trade Policy Council report written among others by Robert Howse.

Common Commercial Policy in the European Constitutional Area: EU External Trade Competence and the Lisbon Decision of the German Federal Constitutional Court

Following the Lisbon Treaty coming into force, the further development of an EU Common Commercial Policy is determined—regardless of its further political and regulatory progression—by the increase in powers which the EU has been attributed in the context of commercial policy through the amendment of Art. 207 of the TFEU. But this extension of powers is also related to the repercussions of the EU commercial policy for the Member States. First, the extension of the traditionally exclusive EU competence (now explicitly stated in Art. 3 para. 1 lit. e TFEU) in the field of Common Commercial Policy in a comprehensive manner on trade in services, on commercial aspects of intellectual property and on foreign direct investment (cf. Art. 207, para. 1 TFEU) leads to the question of the role WTO Member States can still assume, as it seems all the subject matters of WTO law are now covered solely and exclusively by EU competence. Furthermore, the possibility of a further extension of EU competence in the Common Commercial Policy depends on the constitutional limits of the integration process in the Member States, not least in Germany. The German Bundesverfassungsgericht (Federal Constitutional Court) in its Lisbon judgement set these limits in a manner which was quite criticized as the Federal Constitutional Court named specific policy areas for which a further supra-nationalisation could not take place, or only with significant sensitivity for remaining domestic competences, and which have been termed “Integration proof reserved areas”. Without having the slightest criteria for this in the Constitution, the Federal Constitutional Court deduced them ostensibly from the principle of democracy and subsidiarity, and thus as if providing instruction of the tasks of the state. The Court opined: “Particularly sensitive for the ability of a constitutional state to democratically shape itself are decisions on … criminal law…, on the disposition of the monopoly on the use of force …, fundamental fiscal decisions … decisions on the shaping of living conditions in a social state … decisions of particular cultural importance” (The BVerfG lists here “family law, the school and education system and the dealing with religious communities”). One of the reserved areas was subsequently stressed particularly by the Federal Constitutional Court’s order on the rescue package, i.e. national autonomy over budgetary matters, which in our context here is irrelevant as the obligations flowing from WTO law have no fundamental budgetary significance.

Billy A. Melo Araujo, The EU Deep Trade Agenda: Law and Policy

The Chapter reviews the book The EU Deep Trade Agenda written by Melo Araujo that provides a comprehensive analysis of the legal and political issues of the EU deep trade agenda which started with the pronouncement of the new Global Europe trade strategy of the European Commission in 2006. The overall message of the research presented by the author is the statement of the ambiguous, double-faced character of the EU’s trade policy after 2006. For, the then rather new trade policy strategy initiated a turn of the EU towards the interests of EU trade stakeholders in saving the global position of the EU economy amidst the gravitational shifts of World trade since the 1990s, and opening up markets for EU goods and services. The former generally rather altruistic attitude of favouring multilateral approaches in codifying common trade rules over selfish economic orientations has been amended, if not replaced by a much more pragmatic stance which seeks to sustain European shares in world trade by recourse to bilateral or regional FTA.

Sanford E.Gaines, Birgitte Egelund Olsen, Karsten Engsig Sørensen (Eds.), Liberalising Trade in the EU and the WTO: A Legal Comparison

The volume is dedicated to comparing EU and WTO legal approaches to problems caused by liberalisation of cross-border trade. It comprises the results of the research project “WTO law and EU law: legal conflict and integration” steered from the law department of the Aarhus University, Denmark. Its 18 chapters attempt to explore the legal state of affairs in both EU and WTO law regarding a broad range of contemporary challenges to national autonomy by striving for harmonised rules in goods and services trade. The book not only deals with a broad range of specific trade topics and fundamental legal issues of international trade relations, but also addresses basic fundamental structures of trade regulation both in WTO and EU law, such as the concept and notion of non-discrimination or the compatibility of trade and non-trade concerns. The red thread throughout the book is a comparative perspective which contrasts approaches and solutions adopted under EU and WTO law. The book serves the ultimate aim of fostering “constructive coordination” of the EU and WTO systems (see the introductory first chapter “Comparing two trade liberalisation regimes” by Gaines/Olsen/Sorensen, p. 8).

WTO Procurement Rules: In Particular the Government Procurement Agreement (GPA) and Services of General Interest

The global procurement rules have been revised in 2012. This chapter therefore addresses the impact of the new Government Procurement Agreement (GPA) on services of general interest. A detailed analysis of the GPA’s scope is given which delineates it from the purview of the GATT and the GATS as these agreements also address the issue of public procurement and provide useful guidance in the understanding of the new definition of covered procurement used in the new GPA 2012. Subsequently, the substantive and personal scope of the GPA rules is discussed in order to determine the relevance of GPA obligations to the provision of public services. The last section proceeds by considering the notion of government procurement in order to establish whether specific regimes used in the procurement of public services, such as concession contracts and in-house procurement, are covered by GPA rules.

Das deutsche Bundesverfassungsgericht und der ESM: Verfassungsjustiz an den Grenzen der Justiziabilität

Am 12. September 2012 fallte das deutsche Bundesverfassungsgericht (BVerfG) sein mit Spannung erwartetes Urteil zum Vertrag zur Errichtung des Europaischen Stabilitatsmechanismus (ESMV) und zum Vertrag uber den sog. Fiskalpakt (Vertrag vom Marz 2012 uber Stabilitat, Koordinierung und Steuerung in der Wirtschafts- und Wahrungsunion), indes nicht schon in der Hauptsache, sondern erst im Hinblick auf die beantragten einstweiligen Anordnungen, deren Erlass abgelehnt wurde. Im Ergebnis hat das BVerfG den ESM passieren lassen. Allerdings erlegte das BVerfG den Staatsorganen auf, auf volkerrechtlich wirksame Weise dafur Sorge zu tragen, dass Deutschland unter keinen Umstanden uber seinen Anteil am Stammkapital (ca. 190 Mrd. €) hinaus in Haftung genommen wird und dass parlamentarische Kontrollrechte nicht entleert werden dufen.

General Comparative Report on the Research Project ‘The Implementation of the Services Directive in the EU Member States’ of the German Research Institute for Public Administration Speyer

This chapter, the General Report gives a comparative insight in the implementation strategies of all EU Member States (apart from Greece) while transposing the requirements of the EU Services Directive (SD) into national (administrative) law. This chapter comparatively analyses the different ways of the implementation in the Member States and by that gives a survey of different concepts and diverse perceptions of the requirements of the EU Services Directive. The General Report presents the commonalities and differences of the implementation of the Services Directive in 26 EU Member States (in particular as regards the most prominent requirements of ‘Points of Single Contact’, ‘tacit authorisation’, screening of national (administrative) law, and electronic administrative procedures et cetera) and gives a fruitful impression of the burden of transposing the Directive’s stipulations into national law. Finally general conclusions are drawn with respect to the impact of the Services Directive implementation in the EU Member States and on their heterogeneous administrative law systems.

GATS and Domestic Regulation — A Threat to Democracy?

The paper presented here is a comment on the thoughts presented by Rudolf Adlung and, furthermore, adds some general remarks on the issue of GATS and domestic regulation. Mr Adlung discussed the problem as to whether GATS is a threat to democracy. In choosing this topic, Mr Adlung spoke on one, maybe the most important particular aspect of the broader issue of GATS and domestic regulation. The issue of democracy and in particular the fear that GATS threatens democracy is one of the concerns raised by opponents of the GATS.