24 January 2017
Europarecht, Prärogative und Devolution: Der UK Supreme Court entscheidet über den Brexit
In seinem heutigen Urteil zum Brexit hat der britische Supreme Court entschieden, dass die britische Regierung nur nach gesetzlicher Ermächtigung den Austritt aus der EU erklären darf. Die Mehrheit des Gerichts sieht das Unionsrecht als eigene Rechtsquelle an, die nur das Parlament trocken legen kann. Dass es das nun tun wird, steht außer Frage. Continue reading >>
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04 January 2017
Is Article 50 Reversible? On Politics Beyond Legal Doctrine
Can the United Kingdom, once it has declared its withdrawal from the EU, revoke this decision later on? This question is at the core of the ongoing case before the UK Supreme Court on Art. 50 TEU. I argue that revocability fits neatly in the letter and spirit of article 50 because of formal and substantive reasons. I further content that the Supreme Court decision may create a bifurcation in which interpretation of a key TEU provision may become purely an issue of domestic law. However, I further content that actors' political decisions have progressively framed a situation in which revocability does not seem politically possible. Continue reading >>22 December 2016
From Greenland to Svalbard: Scotland’s quest for a differentiated Brexit
On 20 December 2016, the Scottish Government released its blueprint on how Scotland can remain in the European Single Market post-Brexit. From the governing SNP’s point of view, the paper can be seen as a compromise given that it does not advocate Scottish independence. Instead, it proposes that the best outcome for the UK as a whole is to remain in the European Economic Agreement following the ‘Norway model’. It recognises, however, that in the current political constellation this seems unlikely. So, it argues for the continued membership of Scotland in the European Single Market. Continue reading >>
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21 December 2016
A Game of Values: Particular National Identities Awaken in Europe
The EU’s legitimacy is thin and this weakness is reflected in its impotence in the face of the drift towards authoritarianism in Central and Eastern Europe. It remains to be seen whether such an authoritarian turn as the Hungarian can happen in old democracies and if their institutions are strong enough to limit the effects of global processes which are shaping the national identities of societies and the impact of Member States on the shared EU framework. Continue reading >>12 December 2016
Brexit and the Single Market: You say Article 50, we say Article 127?
Hard on the heels of the Article 50 case heard last week by the UK Supreme Court, comes the announcement of another challenge to the UK Government’s Brexit plans, this time based on Article 127 of the EEA agreement. Much like Article 50 TEU, that provision allows contracting parties to the EEA agreement to withdraw from it. The claimants in the Article 127 challenge contend that withdrawal from the EU under Article 50 will not lead to withdrawal from the EEA, given that with Article 127 the EEA agreement contains its own termination clause. Hence their argument goes that unless the Government also triggers Article 127, the UK will stay in the EEA even after Brexit; and that would mean that the UK would remain in the single market. Much like the Article 50 case, the impending court case therefore seeks a declaration by the High Court that the Government cannot trigger Article 127 without prior approval of Parliament. The claimants’ hope is that while Parliament may feel politically bound by the EU referendum result to allow the Government to leave the EU, it may not vote in favour of leaving the EEA, viz. the single market, as this was not a question on the ballot paper. It is the aim of this blogpost to identify the three main hurdles the claimants are likely to be facing and discuss whether these can be overcome. Continue reading >>02 December 2016
After Fragmentation: The Constitution of a Core European Citizenry?
Core European Citizenship as an individual choice: Europeans who were granted the embryonic status of ‘EU citizenship’ with the Treaty of Maastricht, and who rely on this status and these rights for their pursuit of fulfilment throughout the European Union’s territory, should be given the choice to establish themselves in a real European constitutional polity. Continue reading >>22 November 2016
The End of the European Union as We Know It
The European Union is facing a political crisis unprecedented in its 59-year history. This club of democratic countries established primarily to promote peace and prosperity in post-war Europe is facing a nationalist and populist surge that threatens the democratic principles at the very heart of the EU. Capitalizing on the European sovereign debt crisis; backlash against refugees streaming in from the Middle East, Brexit and public angst over the growing terror threat, previously fringe political parties are growing with alarming speed. Continue reading >>22 November 2016
Reflections on the European Project: Some Thoughts on the Agenda
One ought to be cautious to take a broad spectrum so as to avoid the temptation of narrowing down concerns to a specific set of events such as Brexit or ‘a crisis’. The process of European integration is indeed so advanced that a narrow approach could result in a biased analysis. Meanwhile, one still needs to be precise and concrete so as to induce a constructive dialogue for change. Continue reading >>
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10 November 2016
The Big Picture
In Europe, UK, and USA constitutional structures are proving unfit to respond to the challenges of the XXI century. Now is the time to ride on the constitutional moment for the all three of them. Continue reading >>10 November 2016
On the Slippery Slope to a ,People’s Court’
Writes Matej Avbelj in High time for popular constitutionalism!, ‘The majority in our societies seems to be increasingly disconnected with the liberal values that especially the legal academia, but also the ruling political class – at least on a declaratory level – have taken for granted…’ Living as I do in the country in which one sees an increasing distaste for the European Convention of Human Rights and regular media criticism of the ‘unelected judges’ in Strasbourg – and that despite the fact that the judges of the Court are, in fact, elected from a slate of three by the Parliamentary Assembly of the Council of Europe – I cannot help wondering whether the disconnect is anything very new. Continue reading >>
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