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The chapter examines the merits of current and proposed EU regulation in the area of corporate sustainability with a particular emphasis on corporate groups. It provides an overview of the EU approach to corporate sustainability and its perception of sustainability as a legal concept, and then considers the importance of corporate groups in the global market and the inherent challenge of regulating cross-border activity. Building on a heterogeneous perception of groups, the chapter examines the current state of EU sustainability initiatives for corporate groups, and considers the extent to which the EU has managed to harness its influence to steer corporate groups onto a sustainable pathway.
Traditionally, corporate governance debates have contrasted models based on the principle of shareholder primacy with others taking into account the interests of other stakeholders, such as organised labour. This chapter argues that a new corporate governance compromise is emerging, particularly in Europe, driven by responsible investors, civil society and organised labour, which might offer a new way of overcoming the shareholder versus stakeholder dispute. This emerging NGOs-Investor-Union nexus is illustrated using various examples of recent regulatory initiatives: the EU Non-financial Reporting Directive; the Dutch Banking Sector Agreement regarding human rights; the UK Modern Slavery Act and the French Law on the ‘duty of vigilance’. The chapter draws on the abovementioned cases to elaborate some conjectures on the implications and limitations of this dynamic and fragile convergence of interests for policy-makers and existing debates on sustainable corporate governance reforms.
In Chapter 6, our examination of the Europeanization approach to improving governance is broadened to the EU’s Big Bang enlargement, taking in the Balkans and Turkey. In the East and South, the process of Europeanization came up against unfinished transformations from communism, nationalism, and state-building after civil wars. Although the power of Europe over Romania and Bulgaria, on one hand, and Kosovo and Bosnia, on the other, was greater than anywhere else in the world, there is no clear success story to show there, notwithstanding the EU’s occasional influence in Croatia or Romania. On the contrary, insidious state capture and the absence or weakness of rule of law caused such countries as Turkey and Hungary to backslide precisely during their “Europeanization” years.
Europeanization is a specific type of external intervention in the governance of a nation, and Chapter 4 deciphers the many meanings of “Europeanization,” applied in particular to the “modernization” of government and promotion of good governance. Specific theories of change related to Europeanization are then empirically checked against evidence from over 120 countries where EU offers aid, producing little evidence of any impact of EU aid on governance improvement.
The EU faces one of the deepest crises since its formation. A dangerous rule of law backsliding in several Member States undermines the Union’s common values and puts Europe to the test. This raises the question of how to substantially address violations of EU values in judicial proceedings before the Court of Justice. Unfortunately, relying on fundamental freedoms, EU secondary legislation and even the Charter will not help much to resolve this value crisis. This Article takes a different path and calls for engaging with Article 2 TEU itself. Yet this proposal rests on a crucial premise: The judicial applicability of the values enshrined in Article 2 TEU. Based on recent jurisprudential developments, this Article will elaborate a framework for the operationalization of Article 2 TEU values and demonstrate how their judicial applicability can be construed. The judgments of Associação Sindical dos Juízes Portugueses, Minister for Justice and Equality (“L.M.”) and Commission v. Poland will be at the heart of this proposal.
Chapter 4 focuses on the EU–Turkey Syrian refugee deal, which was activated on November 29, 2015. It makes the argument that Turkey used the urgency of the refugee crisis and its position as a major transit country for refugees en route to Europe as leverage to acquire visa liberalization with the EU and bring momentum to its accession negotiation talks. By using active diplomacy and issue-linkage bargaining, Turkey was also able to secure the EU’s commitment to modernization of the Customs Union Agreement and provision of financial support for the welfare and protection of Syrian refugees in Turkey. Upon realizing that the perquisites secured through the deal were not going to materialize due to a multiplicity of reasons, Turkey switched to compellent threats and blackmail and engaged in boundary challenging against the EU. The refugee deal between the EU and Turkey makes it very costly for the EU to ‘lose’ Turkey and will serve as a good litmus test on whether Turkey will switch from challenging to breaking its boundaries with the EU. If the threat of revoking the deal becomes reasonably credible, then it is possible to talk about a switch to boundary breaking.
While Turkey has been traditionally deeply entrenched in the Western alliance, the country lately had a significant deterioration of its relationship with the West. This chapter first outlines the puzzle that this book addresses: How and why does Turkey increasingly go its own way within the Western alliance and grow further apart from its traditional Western allies? It then places Turkey’s relations with the West in a historical perspective, by focusing first on the history of Turkey–EU relations and then on Turkey–NATO–USA relations. It discusses the research methodology used in addressing these questions, especially the author’s unique fieldwork and semi-structured elite interviews with over 200 government officials, diplomats, EU, NATO, and OSCE officials, academics, non-governmental organization officials, and journalists in Turkey, Serbia, Bosnia and Herzegovina, Cyprus, the United Kingdom, Germany, and the United States. It offers a justification for the selection of cases examined throughout the book and concludes by discussing the outline of the book.
This chapter illustrates how the impulse of Chinese financing and contractors on the delivery of infrastructure megaprojects has given a different development option to African governments. I ground the findings on a detailed study of the Standard Gauge Railway (SGR) built by Kenya, with Chinese assistance, between 2014 and 2017. The project was originally turned down by traditional lenders (the World Bank) based on a narrow cost–benefit analysis. I trace the ability of the Kenyan–Chinese project organisation to navigate the institutional voids in the environment, and rivalry between neighbouring countries, through a powerful and centralised organisation structure. I also show, though, that the detachment of this hierarchical authority from the institutional environment comes with a real cost that imperils the potential of the project organisation to catalyse broader socio-economic growth. Still, the case suggests that a centralised approach delivers outcomes for a reasonable cost. It effectively builds an option for further future development. This, I argue, makes the Chinese approach a viable alternative to the inclusive institutional approach espoused by traditional lenders.
While the new security environment necessitates an enhanced dialogue between the EU and NATO, since 2004 Turkey opposes NATO’s sharing of sensitive intelligence information with non-NATO EU members that did not sign a bilateral agreement with NATO (i.e. the Republic of Cyprus) on protecting classified information. Through its NATO membership, Turkey constitutes a veto player in the inter-institutional relations between the EU and NATO and engages in boundary-testing strategy using active diplomacy, entangling diplomacy, and issue-linkage bargaining. Turkey engages in boundary challenging through strategic noncooperation and inter-institutional balancing against the EU. The veto gives Turkey a voice against the EU and helps Turkey pursue long-term interests, such as increasing its leverage against the EU in its accession negotiations, resolving the Cyprus problem to its advantage, and getting fully integrated into the European Defence Agency (EDA). The chapter concludes that as long as the uncertainties around Turkey’s EU accession and EDA associate membership remain and the Cyprus conflict remains unresolved, Turkey will continue to challenge its boundaries against the EU.
This article argues that discourses of constitutional pluralism contain a strong normative core which is made up of a series of largely unacknowledged implicit claims about legitimacy and community. This argument is illustrated by reference to various constitutional pluralist responses to the Hungarian Constitutional Court's ruling concerning the protection of constitutional identity in the context of EU asylum and refugee protection law and policy, demonstrating that whether this decision falls ‘inside’ or ‘outside’ constitutional pluralist tolerance depends on how the observer defines the minimum amount of shared substantive or procedural content that is fundamental to the EU order.
The Constitution of Poland does not use the term ‘constitutional identity’, but this concept has been developed and expounded by the Constitutional Tribunal. The chapter argues that the constitutional identity has become both a normative and a descriptive concept in the constitutional jurisprudence. On the one hand, the Tribunal used the concept of constitutional identity to determine the limits of the competence for conferring power to the European Union, excluding certain subject matters from the scope of the conferral. On the other hand, references to constitutional identity in the Tribunal’s case law denote axiological similarity, equivalence, or convergence between the EU and the national legal order. Moreover, the descriptive notion of constitutional identity has been used to signify the distinctiveness of the Polish constitutional order, which has recently been employed by the populist government to claim the right to introduce reforms undermining the rule of law as an aspect of national sovereignty.
Austria’s constitutional identity comprises the Basic Principles as well as several other provisions of the Federal Constitution. The Basic Principles rank highest in the Austrian legal order. They form a constitutional core that may not be limited by EU law. This core concerns the Democratic Principle, the Republican Principle, the Federal Principle, and the Principle of the Rule of Law – the latter of which includes the Principle of the Separation of Powers and the Liberal Principle. The Austrian Federal Constitution is rather ‘flexible’ as far as constitutional amendments are concerned. Such amendments occur at frequent intervals (over 100 times since 1929). Thus, special care has to be taken when determining which constitutional provisions form part of Austria’s constitutional identity beyond the Basic Principles. Some Objectives of the State (for example, the social partnership) as well as several other constitutional norms (for example, the abolition of the nobility) qualify as constitutional identity.
This chapter focuses on the notion of constitutional identity in Italy through the analysis of the discourse and practice of the Presidente della Repubblica and the Corte Costituzionale, the CC. It briefly outlines Italian constitutional history and then surveys the discourse of the past three presidents delivered on topics of constitutional patriotism and European integration. The chapter discusses the Taricco judgment and its follow-up, explaining how this case represents a turning point in the case law of the CC due to the limited attention that the court gives to building bridges and emphasising common European constitutional tradition and, in contrast, the unprecedented emphasis that it puts on raising walls and stressing national legal peculiarities. Finally, the chapter contrasts the approaches of the two Italian organi di garanzia and questions whether the neo-sovereigntist rhetoric of the CC is constitutionally sound given the fundamental principle of Art. 11 of the Constitution – compelling Italy to participate in the project of EU integration – but also institutionally advisable at a time when Italy’s pro-EU orientation is for the first time politically at risk.
The chapter addresses the role and content of Spanish constitutional identity. It first considers the stance of the Spanish Constitutional Court. In this regard, Spain joins the list of EU Member States whose constitutional courts do not accept the principle of primacy’s effectiveness in EU law vis-à-vis the Constitution. In order to contain the unlimited scope of that principle, the Constitutional Court has come up with an original and controversial distinction between the primacy of EU law and the supremacy of the Constitution. It also acknowledges that there is a core of the Constitution – its constitutional identity – that falls outside the scope of primacy. Its content lies in the respect for state sovereignty, for basic constitutional structures, and for the system of core values and principles in the Constitution, where fundamental rights acquire their own substantive nature. The chapter also examines the role of constitutional identity in the context of the Catalan secessionist movement. It considers that ensuring the state’s territorial integrity is an indispensable part of constitutional identity, whilst providing an obligation incumbent on the EU under Art. 4(2) TEU.