Spring/Summer 2013

Spring/Summer 2013 - Volume 6 - Issue 1

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Le Défi de la Délimitation du Champ de la Protection des Droits Fondamentaux par la Cour de Justice de l'Union Européenne

By: Edouard Dubout   FR - Download PDF Version Download pdf (FR)

Le sens de la protection des droits fondamentaux dans l’Union européenne a changé. A l’origine destinés à s’assurer de la légitimé de l’exercice du pouvoir européen, ils servent désormais de support à une nouvelle contrainte sur l’exercice du pouvoir national. Cette contrainte est néanmoins limitée à un champ particulier dont les contours apparaissent largement incertains, empiétant bien souvent sur la compétence nationale. Après avoir identifié les hypothèses problématiques, et examiné les différentes solutions qui pourraient y être apportées, la thèse qui est proposée ici est que ce débordement procède d’une démarche de compensation du caractère partiel de l’intégration européenne.

De Minimis Rule within the EU Internal Market Freedoms: Towards a More Mature and Legitimate Market?

By: Janja Hojnik   UK - Download PDF Version Download pdf (UK)

Deriving from the former internal market Commissioner McCreevy’s statement that the internal market needs to become more decentralised, the article explores to what degree the de minimis rule applies or should apply to the internal market, discussing in the process the advantages and disadvantages of the transfer of this rule from the field of competition to the internal market law. Although there are some conceptual as well as practical problems related to the application of the de minimis rule to fundamental freedoms, the author concludes that in the field of the internal market law the de minimis rule increases the autonomy of national authorities thereby strengthening democratic decision-making in the EU which is conceived as a multi-level governance system. Through this rule the Member States preserve their competence in the domain of market law with respect to rules which do not formally discriminate between domestic and foreign goods, people and services, the aim of which is not to regulate trade between Member States and whose restrictive effects on the internal market are too uncertain and too indirect for the measure to present a breach of the TFEU.

Heterarchical Constitutional Structures in the European Legal Space

By: Merita Huomo-Kettunen   UK - Download PDF Version Download pdf (UK)

The article focuses on the constitutional linkages between national legal orders, the EU legal order, and the ECHR Convention system. The first, and the main, question the article addresses is how these intertwined constitutional structures can be described. This article shows that the interrelationship of these legal orders could be best described as heterarchical as opposed to hierarchical. The article also tries to tentatively examine the meaning and influence of these heterarchical constitutional structures. The concept of heterarchy is used to illustrate the tension between constitutionalism and pluralism. Where constitutionalism builds a pre-set foundation and framework for governance, pluralism challenges hierarchical constitutional structures and highlights tension at the interfaces between different legal orders. The concept of heterarchical constitutional structures is used to describe those structures pertaining between legal orders which enable those legal orders to flexibly function together without predetermining any hierarchical relation between the orders. Thus heterarchical constitutional structures can be described as communicative in nature. The structures could also be described soft by their nature since they describe, but do not determine relations between different legal orders.

Fragmentation and Constitutionalisation of International Law: A Theoretical Inquiry

By: Rossana Deplano   UK - Download PDF Version Download pdf (UK)

A growing body of interdisciplinary scholarship addresses the issue of global constitutionalism. Scholarly contributions analyse the allocation of power within rule-systems of international law, how it affects subsequent international practice and its connection with political institutions. This article questions the validity of the use of constitutional concepts as a means for interpreting international law. An argument is made that current contributions on international constitutionalism are grounded on unstated assumptions. It is maintained that in order to restore coherence and unity within the international legal system, interpretations of international law should be carried out through interpretive means that are specifically conceived for international law. This article shows that although constitutionalism may be featured as an autonomous concept of international law, it is not able to restore coherence and unity within the international legal system. Therefore, it cannot be regarded as a remedy to the phenomenon of fragmentation.

Is the European Citizen’s Initiative a Serious Threat for the Community Method?

By: Nikos Vogiatzis   UK - Download PDF Version Download pdf (UK)

This article proceeds to a normative claim that the potential of the European Citizens’ Initiative (ECI) – an instrument expected to increase democratic legitimacy in the EU – should be evaluated in the light of the post-Lisbon Community method and not as an additional ‘opportunity structure for citizens’ participation’. The first section explains why the Community method is primarily a mechanism of ‘output legitimacy’, even after the Lisbon Treaty. Furthermore, the legal framework of the ECI (notably the Regulation 211/2011 but also the Commission’s Green Paper preceding the adoption of the Regulation) is provided. The evaluation section concludes that the ECI’s legislative framework, far from an instrument of direct democracy, perhaps an additional ‘opportunity structure’, cannot affect the Community method nor seriously increase democratic legitimacy at the EU level due to the – simultaneous – presence of two thresholds: the intactness of the Commission’s legislative monopoly and the burdensome formalities imposed upon citizens and organisers.

Corrective Justice and Deterrence: Can They Co-Exist?

By: Tareq Al-Tawil   UK - Download PDF Version Download pdf (UK)

Restitutionary justice and deterrence have completely different types of justification. Although deterrence and restitutionary justice are quite different, this does not prevent the two from sharing the same means to their different ends, namely, stripping the defendant of the gain which he has made from his breach of contract and awarding it to the claimant. But the crucial question is: how can these diverse ideas be joined in a coherent unified theory? This article aims to deliver a mixed theory of restitutionary justice and deterrence in contract law.

Evolutive Treaty Interpretation: Legality, Semantics and Distinctions

By: Sondre Torp Helmersen   UK - Download PDF Version Download pdf (UK)

According to the ICJ, ‘generic’ terms in long-term treaties were presumably intended to be interpreted evolutively. This ‘general rule’ on evolutive interpretation appears simple, but leaves unanswered questions. Moreover, linguistic analyses show that the ICJ is inconsistent in its definition of ‘generic’, and that evolutive interpretations are unsuited to solving ambiguity (as opposed to vagueness). There is, moreover, a tendency in the literature to confuse or conflate evolutive interpretation with the doctrine of intertemporality or the VCLT Article 31.3.c—these are three distinct concepts.



By: Tiago Andreotti   UK - Download PDF Version Download pdf (UK)

Book Reviews

Constitutional Life and Europe’s Area of Freedom, Security and Justice (Ashgate, 2011)

By: Stephen Coutts   UK - Download PDF Version Download pdf (UK)

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