European Union, and criminal, laws had been interacting in many ways even before explicit competence in criminal matters was acquired by the Union in the Treaty of Maastricht. Such intersections between supranational and national provisions have frequently been handled by the CJEU. In the main, the intervention of the Court is triggered by Member States’ recourse to penal sanctions in situations covered by EU law. In such cases, the CJEU is called upon to strike a complicated balance: it has to deal with Member States’ claims of competence in criminal law, whilst ensuring that that power is used consistently with EU law. By making reference to selected cases, this paper highlights the impact that principles established in the context of the fundamental freedoms can have on EU criminal law.
This article questions the idea that the EU is a pure regulatory power based on supranational delegation of competence from the Member States. It claims the insufficiency of this single paradigm to explain the developments of EU law and the need to integrate it with recognition of the constitutional foundations of EU law.
The analysis demonstrates this by focusing on a specific case study of institutional design in the internal market integration: the delegation of powers to EU agencies. By recognising the judicial evolution of the so-called Meroni doctrine concerning the non-delegation of powers to EU agencies, the article unveils that, legally speaking, the enhancement of EU agencies’ powers takes place in the autonomous constitutional framework of the EU legal order.
This constitutional foundation of EU law shall therefore complement the supranational delegation paradigm. Only in this wider approach can the legitimacy of EU agencies’ powers be framed and accommodated in the composite nature of the EU as a Union of Member States. On these grounds, the final remarks highlight the need for a more comprehensive paradigm for EU law that can explain these different aspects of EU law under a common approach based on a wider public law discourse.
The paper focuses on Canadian Provinces’ role in migrant selection. After an asymmetric approach, that benefited only Quebec, the federal government granted devolutionary powers in migrant selection to the other Provinces as well, moving towards de facto asymmetry. This process has proved to be successful over the years, but recently the federal government has reacted, recentralizing some aspects of immigration policy. This does not apply to Quebec.
This policy change may suggest that, although immigration federalism may be grounded on reasons other than the need to accommodate linguistic or ethnic claims, it remains the case that the former are “weaker” than the latter, and are more subject to pressure from the central government.
This is also confirmed by looking at the mechanisms through which intergovernmental agreements have been translated into law. Unlike the Quebec case, immigration’s devolution in relation to the other Provinces has occurred through administrative delegation of powers from the federal government. This permits the federal government to exercise some form of political pressure in order to realign the Provinces’ discretionary choices.
As is broadly recognized, the realm of administrative power greatly expanded over the course the twentieth century (particularly after 1945). This essay argues that this expansion, along with differential conceptions of legitimacy deeply bound up with it, are crucial to understanding not just the modern administrative state but also the nature of EU governance and the law governing its operation. Despite a dominant paradigm that seeks to understand EU governance in autonomously democratic and constitutional terms, the legitimacy of integration as a whole has remained primarily ‘administrative, not constitutional’. The EU’s normative power, like all power of an ultimately administrative character, finds its legitimacy primarily in legal, technocratic and functional claims. This is not to deny that European integration involves ‘politics’ or has profound ‘constitutional’ implications for its member states or citizens. The ‘administrative, not constitutional’ paradigm is meant only to stress that the ultimate grounding of EU rulemaking, enforcement, and adjudication comes closer to the sort of administrative legitimacy that is mediated through national executives, national courts, and national parliaments to a much greater extent than the dominant paradigm supposes. This is the reality that the ‘administrative, not constitutional’ paradigm on EU law has always sought to emphasize, and it is one that is particularly pertinent to the integration process in times of crisis. It is unsurprising, in these circumstances, that the public law of European integration has continually resorted to mechanisms of nationally mediated legitimacy in order to ‘borrow’ legitimacy from the national level. Unless and until Europeans begin to experience democracy and constitutionalism in supranational terms, the ‘administrative, not constitutional’ paradigm suggests that the EU’s judicial doctrines must be adjusted. The purpose should be to address the persistent disconnect between supranational regulatory power and its robust sources of democratic and constitutional legitimacy on the national level.
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