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A Federal Turn? The European Union’s Response to Constitutional Crises in the Member States

Abstract

The EU has not yet found effective answers to constitutional crises in its Member States, in particular Hungary and Poland. Due to systemic problems of compliance with the common values of Art. 2, the legitimacy of the EU constitutional order and its smooth functioning are under threat, but the EU lacks instruments of direct enforcement and coercion. Several authors have therefore proposed to ‘federalize’ EU mechanisms and to guarantee to EU institutions, in particular the Court of Justice, more powers to intervene vis-à-vis Member States. However, the current Treaty framework presents a series of obstacles to federal-like enforcement. Solutions to national crises must ultimately respect the constitutional balance between the Union and the Member States.

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From the Unitary Patent Package to a Federal EU Patent Law

Abstract

For the last forty years, the European Union has been pursuing the goal of a unified system of patent law, which would make it possible for an invention to be protected, by EU law, throughout the territory of the Member-States, with a single application. This would simplify the patent protection system, making it easier, less costly and more secure, and would facilitate access to the internal market and promote scientific and technological development. However, problems might arise because of the plurality of legal sources that could be involved and due to the fact that not all countries want to be part of this new system. Nevertheless, the involvement of the majority of the Member-States in the Unitary Patent Package, through participating in an international agreement and in using the EU’s enhanced cooperation mechanism, is evidence of federalist manifestations of the EU as a sui generis organisation.

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The implementation of EU law by national administrations: Executive federalism and the principle of sincere cooperation

Abstract

This paper explores the similarities between the EU’s system of administrative implementation of its legislative acts, and the German and American systems of administrative implementation of their respective federal laws. The article will also study the connection between the principle of sincere cooperation, established in the EU Treaties, and equivalent principles which exist in federal legal orders, namely the “Bundestreue” principle. The EU system appears to be closer to the German model of federalism than the US. Despite the federal inspiration, one cannot say that the principle of sincere cooperation is a federalising influence on the EU.

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The past, present and future of the EU’s federal experience

Abstract

In 2017 we celebrated the 60th anniversary of the Treaty of Rome and the 25th anniversary of the Treaty of Maastricht. The commemoration of these historic events was the perfect excuse for a critical and renewed discussion of European integration. It was also an opportunity for discussing the EU through the lens of “federalism”, i.e. to look at it from the perspective of federal theory and / or through its substantive and formal dimension. This issue of Perspectives on Federalism includes papers presented in conferences organized at Warsaw University in June 2016 and at Lisbon Nova Law School on May 2017 under the Jean Monnet Project “More EU - More Europe to Overcome the Crisis”. The articles discuss, either from a more general or from a more specific standpoint, within a variety of subjects, some of the federal features of the EU.

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Reconstructing Social Dialogue

Abstract

The European Social Dialogue, and its output, the European collective agreements, are intended to implement minimum standards of working conditions that bind all Member- States, in a logic of legal harmonisation of the European Union’s social objectives. However, despite some federal traits of the European Union (“EU”), since the beginning European social dialogue has faced numerous challenges, particularly when confronted with the need to balance economic interests, giving social policies a subsidiary role, and when facing the different agendas of each Member-State. This article proceeds with a historical analysis of the development of European Social Dialogue, its implementation stages, and past and current challenges, which can be divided in three phases: past experience, present experience and current challenges and, finally, an attempt to project what new social policies might hold for the future.

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The referenda for more autonomy in Veneto and Lombardia: constitutional and comparative perspectives

Abstract

In a global context where popular referenda are increasingly used to decide contested issues, this paper aims at exploring the framework in which, in October 2017, two referenda took place in the Italian northern regions of Veneto and Lombardia to seek additional forms and conditions of autonomy within the Italian regional state as painted by the Constitution after the 2001 reform. By adopting mainly an analytical perspective, this contribution studies the political and constitutional underpinnings of the two referenda while at the same time providing a cursory comparative account of differential and asymmetric regionalism.

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The role of the Capital Markets Union: towards regulatory harmonisation and supervisory convergence

Abstract

The Council is a crucial intergovernmental institution of the European Union. However, the complex, opaque and consensual character of the decision-making process in the Council puts its legitimacy into question. Intergovernmentalist theory posits that it is sufficiently legitimised, indirectly, by the member state governments. Constructivist research, on the other hand, suggests that socialisation might disturb the relaying of positions from the national to the supranational level, as the former approach implies. This paper aims to explore these issues, in particular related to representation and consensus. It contains an analysis of material generated in in-depth interviews. The Capital Markets Union (CMU) initiative serves as an umbrella term for regulatory changes directed at the overall development of European capital markets. As such, when analysing the legal framework of the CMU, it is important to note that this involves an undertaking which goes beyond the regulation of financial systems, also aiming to achieve supervisory convergence throughout the member states of the European Union. Indeed, it is perhaps one of the clearest examples of federal implications within the EU. All the synchronous movements enacted into law, leading towards harmonisation and supervisory convergence, show us that the CMU is an foundational piece in a collective journey towards ever greater integration in terms of economic governance and economic policies. Nonetheless, even if the CMU is one of the few cross-country risk-sharing mechanisms available to the EU, its implementation faces difficulties (as well as the looming Brexit) that demand careful analysis.

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The Second-Generation Theory of Fiscal Federalism: A Critical Evaluation

Abstract

This paper evaluates the second-generation theory (SGT) of fiscal federalism. It spells out the main arguments of the theory and discusses the fiscal architecture of Nigerian federalism with a view to using the case study to work out the strengths and weaknesses of the theory. After arguing that the weaknesses of the theory outweigh its strength, the paper goes on to point out the dangers of using a particular construct of fiscal federalism as a model. It notes that SGT theory is an attempt at reviving and modelling nineteenth century American fiscal federalism as a universal standard.

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Socialisation and legitimacy intermediation in the Council of the European Union

Abstract

The Council is a crucial intergovernmental institution of the European Union. However, the complex, opaque and consensual character of the decision-making process in the Council puts its legitimacy into question. Intergovernmentalist theory posits that it is sufficiently legitimised, indirectly, by the member state governments. Constructivist research, on the other hand, suggests that socialisation might disturb the relaying of positions from the national to the supranational level, as the former approach implies. This paper aims to explore these issues, in particular related to representation and consensus. It contains an analysis of material generated in in-depth interviews and concludes that more effort is invested into reaching a more inclusive compromise in the Council than one would expect if it were to decide by qualified majority. Socialisation is weakening the input legitimacy of decisions made in the Council, while at the same time enhancing their output legitimacy by favouring genuine consensus.

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The voting systems in the Council of the EU and the Bundesrat – What do they tell us about European Federalism?

Abstract

The Treaty of Lisbon introduced a new system of weighted votes in the Council, which radically departs from the principles on which the distribution of votes between the Member States of the EU was based for more than half a century. At the same time, the system of double majority is fundamentally different from the assumptions on which voting systems in federal states are based, including in the Bundesrat. Systems used in federal states are usually based on a compromise between the equality of states, and the equality of citizens. Consequently, in the Nice system, smaller Member States in the EU had relatively greater power compared to their populations than smaller federal units in the German Bundesrat. The results presented in this paper indicate that the Lisbon system of voting in the Council differs significantly from voting systems in federal states.

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