In the series Neither Victims Nor Executioners (1946) the Franco-Algerian writer Albert Camus argued for the need of a relative utopia that would allow man, who refused the logic of murder and violence, to revolt against their historical condition. To this end Camus stressed the importance of fighting for a new democratic world order that would have reversed the condition of international dictatorship immanent in the interdependent world of the 20th century. In the series of essays another reading is possible; an attempt to find a new political way after the end of the classic modern world - a system founded on the supremacy of European nation-States - and to consider such an attempt as an interesting standpoint to face current transnational challenges.
This article analyzes the degree of convergence between the United States and the European Union regarding the structural role of administrative agencies. As will be argued, the United States and European Union have arrived at the same broad conclusion about a “nondelegation doctrine”: delegations to administrative agencies should be permitted so long as some limiting principle governs the exercise of that power and allows for sufficient judicial review. However, the Supreme Court has taken a more permissive approach than the Court of Justice in defining the limiting principle. The United States has loosened the reins for the sake of modern administration while the European Union has maintained a firmer grip to keep better control over the Europeanization project. Stated another way, the nondelegation doctrine is simply a reflection of the systems’ relative levels of integration. Thus, the nondelegation doctrine will be stretched in Europe as functional regulatory demands arise from wider and deeper integration. At the same time, the focus will be redirected from substantive limits to procedural controls; accordingly, this Note advocates for a European Administrative Procedure Act.
People are usually born into their political communities, and only a minority of them become member of the given community by naturalisation. Sovereign states enjoy a great margin of appreciation in defining the rules of both birthright and acquired political membership. Most states employ some form of cultural affinity-based criteria relating to ethnic identity that differentiate between applicants that seek to acquire the nationality of the state. Indeed, such distinctions seem to be growing with the revival of ethnic and nationalist aspirations that Europe has witnessed for some years. We argue that human rights principles, first and foremost non-discrimination guarantees, should be taken seriously and effectively applied to these cases of naturalisation, and show what such a scrutiny entails. While the arguments presented here should apply more generally, special attention will be paid to events that primarily triggered the authors’ interest, the case of Hungary.
This paper analyses the case-law of the European Court of Justice on the substantive scope of ne bis in idem in transnational cases and evaluates the findings in light of the different concepts of legal interests inherent in the concept of crime as a material notion. I argue that the application of the interpretation of the ECJ to crimes against collective interests is insufficiently justified. As a result, the interpretation of ne bis in idem based on material facts appears only partially correct and a sense of distrust seems to be cemented between member states creating obstacles to a successful reform of the principle. Part one attempts to defend that the reasoning put forward by the court lacks relevance and evaluates how this affects mutual trust. Part two analyses this interpretation in the light of different forms of legal interest. Part three examines how later case-law has tried to explain the problematic interpretation of early cases and its relationship with the Charter of Fundamental Rights of the European Union. The article will conclude by summarising the findings which may put into perspective the more general challenges of cooperation in criminal matters within the EU.
Perspectives on Federalism is closing its seventh year and its issue 2/2015 confirms the interdisciplinary nature of this intellectual enterprise. This issue is a very rich one, as it includes legal, historical and philosophical contributions. In spite of the evident diversities of these articles, we can identify three main connecting themes: latest developments in EU law, history of thought and European integration, and constitutional developments in national and supranational contexts.
This paper will deal with EU competence over patent law, especially in the context of the TRIPS Agreement with reference to the ruling of CJEU in the Daiichi Sankyo case (CJEU case C-414/11 Daiichi Sankyo v DEMO Anonimos). The first part will explain the process of claiming patents at the national as well as the European level in order to understand the complexity of patent law, the second part will deal with the implications of jurisdiction and developments in EU patent regulations, the third part will deal with the effects of EU competence over the TRIPS patent provisions and the forth part will deal with the interpretation of substantive patent law in the light of the Daiichi Sankyo case.
The article analyses constitutional politics in the German Länder in the field of minors’ rights. Since this issue seems a purely legal matter dealt with at the federal, European and international level, we should expect similar, almost identically shaped policies at the Länder level. However, the analysis brings considerable variations of constitutional activities in this field to the fore: time, frequency, and contents of respective initiatives vary significantly in the period from 1999 to 2014. These variations were due to different party strategies, diverging party platforms and majority constellations in the Länder. The analysis also shows that the public arguments brought forward in favour of constitutional amendments refer only weakly and randomly to legal provisions and processes at other levels. The political debate supporting extended children's rights rather refers to general observations, to the specific regional context, and constitutional provisions in other Länder. At least with regard to this issue, the multi-level system did not systematically impact on constitutional politics in the Länder. It rather can be understood as an opportunity structure providing parties with multiple realms in which they can pursue their goals. Thus the study shows that federal and regional party strategies are key factors in explaining policy diffusion in multilevel systems.
This paper discusses recent developments in Scottish nationalist constitutional thought during the period of 2002 to 2014, showing how the Scottish constitutional conversation has diverged from, but continues to be influenced by, the UK-wide constitutional conversation at Westminster. It presents Scottish nationalist constitutional thought as a ‘very British radicalism’, which is characterised by certain constitutional forms and ideas that are radical in a British context (such as popular sovereignty, proportional representation, a written constitution, and a commitment to covenantal socio-economic and environmental provisions) while at the same time retaining a persistent ‘Britishness’ in terms of specific institutional proposals and ambivalence towards the principles of constitutional government. Finally, I will discuss possible designs of a future constitutional settlement in Scotland and the United Kingdom. Notably, I will explore how far the Scottish constitutional tradition might impact on the constitutional shape of the United Kingdom.
This special issue of Perspectives on Federalism collects papers mostly presented at the General Conference of the European Consortium of Political Research in September 2014. The issue contains five papers dealing with the role, the status, the dynamics, and the functions of sub-national constitutional politics and sub-national constitutionalism in a number of member states of the EU as well as in a comparative, non-EU perspective. Even though the papers take different perspectives on the topic at hand, they all engage with the contribution sub-national constitutions can make to democracy and the nationstate within as well as outside of Europe.
Austria’s federal system is determined by an apparent contrast between formal and real constitution having its roots in foundational defects shaping the system to the present day. As for the formal dimension, Austria has a rather uneven balance with regard to powersharing. No wonder that, given the structural bias between central state and substates, informal forces are at work in order to make up for the shortcomings of the federal architecture. In this context, sub-national constitutionalism at first sight appears to be marginal. Astoundingly, though, in recent time a lot of constitutional changes and amendments, quite possibly paving the way for a sustainable redesign of the federation as a whole have taken place.
The article starts with a historical outline of the Austrian federation’s origins. In chapter 2, the interplay of formal and informal rules and practices is discussed. Chapter 3 deals with scope, contents and dynamics of sub-national constitutionalism under the given framework. The article concludes with assessing the efficacy of subconstitutional politics in relation to the capacities of the federal constitution.