Working Papers & Various
Conclusion: Article 267 TFEU and EU Federalism
in 15 European Journal of Legal Studies.
Pages 221-227.
Pages 221-227.
‘Re-Constituting’ the Internal Market: Towards a Common Law of International Trade?
in European University Institute Working Paper (LAW 2020/14)
Summary: Are the trade philosophies behind the EU internal market and the WTO international market converging or diverging; and are we, or are we not, moving towards a “common law of international trade”? Twenty years ago, an interesting and – and swiftly famous – answer to this question was given by Joseph H.H. Weiler. Studying the “constitution of the common market”, the historical evolution of free movement law is here divided into five periods or generations. The underlying Weiler thesis is thereby as simple as it is beautiful: starting with an early radical philosophy in Dassonville, the European Union has gradually and consistently moved away from its original hyper-liberal approach towards an ever more deferential approach; and the transformation of Article 34 TFEU into a discrimination format ultimately leads to a convergence with international law. What are the empirical and normative credentials of this stylised construction of the internal market? This Working Paper argues that there are fundamental shortcomings in this standard interpretation of the evolution of the internal market, and that a historical reconstruction arrives at a very different empirical and normative picture.
Models of Demoicracy: Some Preliminary Thoughts
in European University Institute Working Paper (LAW 2020/08)
Summary: What does the neologism demoicracy mean? If democracy is the “government” of the “people”, can there be a government of peoples? Are international organisations, like the United Nations, demoicracies; or should the United Kingdom, as a multi-nation state, be viewed as such? Within the last decade, the idea of demoicracy has developed considerable traction, especially within the political science literature on the European Union. Yet what exactly is demoicracy supposed to mean in this context; and what models of demoicracy have developed to explain the “realities” of a plurality of peoples governing together? This Working Paper aims to explore the theoretical and historical expressions of the curious concept of demoicracy. Section 1 starts by clarifying two important philosophical distinctions, namely the difference between popular sovereignty and popular government and, equally, the distinction between an (international) Union of States and a (national) Union State. Sections 2 offers a constitutional overview of the potentially demoicratic elements within the United States of America; while Section 3 analyses and compares the founding and government of the European Union in demoicratic terms. Section 4 critically presents the three main models of demoicracy that have developed in the contemporary literature on the European Union, with Section 5 introducing a – new – fourth model called “republican federalism”. A Conclusion makes a normative argument in favour of this fourth model from the point of view of the social and legal structure of the European Union.
From utopia to apologia: international normativity in the long nineteenth century
in LSE Doctoral Thesis
Summary: Having lost the theological certainties of the past, all modern scholars of international law battle to establish normative foundations for the new “law of nations”. What is the relationship between “natural law” and the “positive” international law? By the eighteenth century, the quantity of positive international law and its legal quality had become a major philosophical problem. For if positive international law existed, what was its relation to natural law and what was the “reason” behind its (presumed) status as “law”? How could international norms be “laws” if there was no “government” above the States? These questions continued, during the eighteenth century, to be generally answered in favour of natural law; while the relationship between “natural law” and the “law of nations” remained open. But ever since the French and the Kantian revolution, “rationalistic” natural law conceptions were increasingly challenged. What did step into their place to justify the binding nature of international norms during the nineteenth century? The thesis traces the various theoretical and practical responses to this question. It argues that the nineteenth century develops its own conception of “natural law”. This however is a natural law that is neither universal nor rationalist but is instead “national” and “historicist”. The nineteenth century should therefore not be characterised as a “positivist” century in which international norms lacked a metaphysical normativity. While an “apologetic” turn towards state sovereignty ultimately takes place by the end of that century, it is only after the First World War that a new “positivistic” era of international law triumphs. In order to demonstrate this, the thesis explores the German and British philosophical and jurisprudential discourses in the long nineteenth century (1789-1914); and it thereby hopes to challenge a number of conventional views in the academic literature.
Re-reading Dassonville: Meaning and Understanding in the History of European Law
in European University Institute Working Paper LAW 2018/09
Summary: There are few “mythical” judgments that every student of European integration has read or ought to have read. Dassonville is one of these judgments. The Court here makes one of its “most famous pronouncement[s] ever”; and yet very little historical research on where the Dassonville formula came from and what it was intended to mean in 1974 has yet been undertaken. The conventional wisdom holds that the Court offered a hyper-liberal definition of the European internal market, which radically dissociated itself from the conceptual shackles accepted in classic international trade law. According to this view, Dassonville represents the substantive law equivalent of Van Gend en Loos. This traditional view, it will be argued here, is simply not born out by the historical facts. A contextual interpretation indeed shows a very different meaning of Dassonville; and a closer author-centric analysis reveals a very different understanding of the Dassonville formula in its historical context. What does this “re-reading” mean for our understanding of European law and its history? Not only is a re-reading of the “classics” an obligation for every generation of young European lawyers; more importantly still: in order to understand the history of European law, we must try to reconstruct the – doctrinal – context to each classic case.
On 'Middle Ground': The European Community and Public International Law
in European University Institute Working Paper LAW 2007/13
Summary: Does the Community legal order constitute a closed ‘self-contained regime’ or will it be an ‘open system’? While founded on the basis of an international treaty, the European Community still had to determine – not unlike national legal orders – the effects of public international law in its ‘domestic’ sphere. Has the Community legal order thus assumed an ‘autonomous’ position vis-à-vis general international law? And if so, what is the status and effect of international norms in the Community legal order? This chapter discusses these issues by analysing the constitutional regime developed for international treaties concluded by the Community and customary international law. The second part changes perspective and investigates when the Community has considered itself materially bound by international agreements concluded by its Member States via the doctrine of functional succession. In general, the Community’s constitutional choice vis-à-vis public international law has a federal dimension: placed on systemic ‘middle ground’, the EC legal order may potentially operate as a conduit for the incorporation of international law in the national legal orders of its Member States.
Sharpening the Separation of Powers through a Hierarchy of Norms? Reflections on the Draft Constitutional Treaty’s Regime for Legislative and Executive Law-Making
in European Institute of of Public Administration Working Paper 2005/W/01
Summary: The European Union - born in 1958 with the genetic code of an international organization - could hardly be viewed to reproduce the trias politica of a nation state. Article 4 of the EEC Treaty modestly provided: "The tasks entrusted to the Community shall be carried out by the following institutions: an Assembly, a Council, a Commission, a Court of Justice. Each institution shall act within the limits of the powers conferred upon it by this Treaty." When the European Community was established, its "regulatory" competences were not immediately conceived of as of a "legislative" quality. The nature of the Community in general, and its legal instruments in particular, defied parliamentary conceptions of legislation: The law-making function was until the SEA (almost)exclusively in the hands of the Council with the European Parliament playing, at most, a consultative function. From a (national) democratic perspective, it seemed that all decision-making powers of the European Community were "executive" in character. Only the subsequent ascendancy of the European Parliament to become co-legislator with the Council under the co-decision procedure - today applicable to the majority of legal competences of the European Union - has cleared the way for the gradual emergence of a parliamentary definition of legislation in the Union legal order.