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One of the most fundamental obstacles to EU constitutionalization is said to be the lack of a European demos, which is seen as a precondition for any constitutional system.The term ‘demos’ originally referred to the common people of an ancient Greek state. Today, demos can describe the populace of a democracy, as a political unit. European Member State courts, such as the GFCC, have raised prominent concerns that further constitutionalization is constrained by the absence, in Europe, of a common attachment as an entity; they emphasize that there is no ‘European people’ and no future possibility thereof, meaning that the final say in constitutional matters will always rest with each European Member State.
In both the court of public opinion and modern legal scholarship, our Europe of today appears to lurch from crisis to crisis. These crises are political, cultural, social, environmental and now also economic. A severe financial crash has sent shockwaves around the continent, exposing the fault lines in Europe’s institutions and constitution. After the near-collapse of Greece’s national economy, the EU focused heavily on inventing new mechanisms to provide economic stability for the euro-currency countries. However, deeper issues with the broader European project, which had festered in the dark for years, were revealed and thrown into stark relief by the financial floodlights.
The absence of a single legal system, according to critics, is one of the three most important dimensions in which further European constitutionalization finds itself stymied. For critics, a constitutional polity must be founded with one common legal system. From this view, if the European Union has no common understanding of the rule of law, it is doomed. Concerns include (1) an unclear role for a Federal Court and its appellate powers, (2) a lack of uniform trans-European procedures for selection of justices, (3) a lack of clear rules for constitutional review, (4) indeterminate jurisdiction vis-à-vis the (Member) States and (5) the unresolved matter of ultimate legal authority itself (Kompetenz-Kompetenz).
In Chapter 1, by way of brief reminder, I introduced the European Union’s historical development, highlighting the constitutional underpinnings of the current successive economic, social and political crises in Europe. After summarizing relevant literature, my goal was to outline and analyse an increasingly constructive series of judicial dialogues in Europe, which I believe has brought to light a number of perceived obstacles to three key demos, civitas and ius dimensions of European constitutionalization.
European constitutionalization continues to advance along the path that has been paved over recent decades. Contrary to the view advanced by many critics, many obstacles revered as insurmountable for Europe on this long journey, are either misconceptions or have been redressed by the Court of Justice to a degree such that they no longer stand in the way of further constitutionalization. However, as discussed at length in Chapter 5, there is one, remaining obstacle to be addressed. One point of contention continues to stand firm: the continuing and notable lack of a common European public sphere. It would be a mistake to view this as a practical or factual issue; rather, it is a legally constructed dilemma and, indeed, it can be addressed in legal ways.
Democracy and the EU have a heated relationship that has been much debated – by legal scholars and the European courts alike. For many, it is inherently difficult – if not impossible – to claim that the EU, as a whole, is reflective of democratic ideas and practices. There are, allegedly, particular areas of deficiency – from the usurping of domestic legislative jurisdiction, to the absence of civic responsibility among the peoples of Europe per se. As this chapter will demonstrate, it is my belief that most of the particular areas of alleged deficiency are not, in fact, serious obstacles to the European constitutionalization process. Rather, many are a natural and predictable occurrence.
The process of European constitutionalisation is met with extensive scepticism in current national legal and political spheres and in broader circles of public opinion across Europe. By shedding light on these concerns, this book reveals a widespread misunderstanding of constitutional federalism, which permeates the Member State courts, popular media, and many academic communities. A failure to address confusion over this fundamental concept is leading us towards impoverished development of the EU's 'Second Constitution', and even ensuring that the role of both domestic and international European courts in enriching the constitutionalisation process is overlooked and undervalued. In a bid to avoid such consequences, this book explores how federalism and further constitutionalisation - rightly understood in a dialogue of the European courts - may actually change this process and allow a clearer advance toward Europe's Second Constitution for, but also with, the people of Europe.
This chapter aims to present the EU perspective on the controversial issue of carbon emission trading and aviation. The article analyses how the EU advanced to the concrete implementation of emissions trading in the aviation sector. It analyses why the EU first proposed and then introduced GHG emissions trading while at the same time seeking multilateral solutions to the issue of climate change contributions from the aviation sector. It highlights the technical issues at stake, the global resistance to what was perceived as a unilateral act by the EU, and how the fact that the EU had introduced the system influenced the 2016 ICAO climate decision to adopt the CORSIA carbon offsets scheme. The article documents how the EU system eventually influenced the global debate and the global compromise that arguably respected the most important sustainable development principles. It reviews ongoing EU policy respecting sustainable development and ends with an outlook on the unlikely scenario that the new ICAO mechanism could fail, in which case the EU’s original scheme could be resurrected under EU law.
In current public international law, normative regimes generally develop as the result of states' common interests. Various institutions are involved in the interplay of multilateral processes and diplomatic practices, which largely contributes to the development of legal regimes. Among those institutions, dispute settlement bodies play the vital role of interpreting and applying the relevant treaty law, customs and agreements which are the outgrowth of previous negotiations. However, the less-studied opposite might also be true: in some cases, judicial recourse and dispute settlement decisions can be used to influence treaty negotiations. As this chapter demonstrates, states can use a variety of institutions in order to attempt to influence and/or influence the outcome of treaty negotiations. Indeed, the dispute settlement mechanisms, for example in the WTO, help states to influence the negotiation of WTO-based treaties in the same policy areas. Thus, the dispute settlement mechanism and the treaty negotiation function of the same institution can form part of an overall policy of states to advance their treaty negotiation strategies.
Multidisciplinary approaches can be used to monitor the way that states use, or restrain from using, case law arguments in their negotiations. If there is indeed a link between dispute settlement based litigation and ensuing or concurrent negotiations, we should be able to observe it in the dispute settlement cases themselves from facts, from declarations by parties, and from the opinions of the deciders.
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