June 27, 2015

Peter Swire on the USA Freedom Act and European Concerns about NSA Surveillance

Network member Alasdair Young (Georgia Tech) has alerted us to the publication of the first Working Paper from Georgia Tech's Jean Monnet Center, entitled "The USA Freedom Act: A Partial Response to European Concerns about NSA Surveillance," and authored by privacy expert Peter Swire (Georgia Tech).  Alasdair's announcement is below; the full text is available here.

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Georgia Tech’s Jean Monnet Center of Excellence is proud to announce the publication of its first working paper, written by Center member and Huang Professor of Law and Ethics at the Georgia Tech Scheller College of Business and Senior Counsel at Alston & Bird LLP Peter Swire.  Swire, who served on President Obama’s Review Group on Intelligence and Communications Technology and who, under President Clinton, helped to negotiate the U.S.-E.U. Safe Harbor agreement for trans-border data flows, reflects on how recent changes in U.S. surveillance policy, including the 2015 USA Freedom Act.  He contends that the Act, to a significant extent, reflects recommendations suggested by the Review Group. It also follows on from a series of pro-privacy reforms adopted by the Administration.  Collectively, Swire argues, these reforms go a considerable way towards addressing European concerns about U.S. surveillance practices, although there is still a considerable way to go.  The USA Freedom Act, although focused on domestic surveillance, provides encouragement that U.S. surveillance policy will continue to be reformed in a pro-privacy direction. The working paper is available at: http://inta.gatech.edu/jmce/working-papers.

June 25, 2015

OMT Forum: Alicia Hinarejos on 'Gauweiler' and the legality of the OMT programme

Network member Alicia Hinarejos (Cambridge) has passed on this new contribution to our OMT Forum, which originally appeared on EU Law Analysis and which we are cross-posting here by permission.

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On the 16th of June the Court of Justice delivered its decision in the Gauweiler case, concerning the legality of the Outright Monetary Transactions (OMT) programme of the European Central Bank (ECB). The Court considered the programme compatible with EU law. The decision has important implications for the powers of the ECB, the constitutional framework of the EU’s Economic and Monetary Union, and for the relationship between the Court of Justice of the EU and the referring court, the German Federal Constitutional Court. This was the first time that the German court asked for a preliminary ruling, and it remains to be seen whether the reply given by the Court of Justice will be to the national court’s liking.


The ECB is in charge of conducting monetary policy for the euro area and its role is very narrowly defined in the Treaties. This role, however, has evolved and expanded substantially in recent years, as the ECB has announced or adopted various ‘non-standard’ measures in response to the euro area sovereign debt crisis. The OMT programme is one of these measures: it was announced in September 2012 in a press release and, so far, it has never been used.

The idea is that the ECB will buy government bonds from euro countries in trouble, i.e., when nobody else buys these bonds, or their yield is becoming so high that the Member State will not be able to cover interest payments on newly issued bonds, thus having no more access to credit and risking default. Crucially, the Treaty prohibits the ECB from acquiring government bonds directly (Art 123 TFEU) as this would amount to monetary financing, or becoming a direct lender of last resort to a Member State. Instead, the ECB would buy government bonds in the secondary market—that is, from a party that has bought these bonds first from a Member State—rather than from a Member State directly. While the ECB has already done this before, with the OMT programme there would be an added formal element of conditionality, as the Member State in question would need to obtain financial assistance from the European Stability Mechanism or the EFSF and comply with its conditions (i.e. macroeconomic reforms negotiated between the Member State and the troika: the Commission, the ECB, and the IMF).

The applicants before the German Court argued that the ECB had overstepped its Treaty role by creating a programme that should be viewed as a tool of economic, not monetary, policy; it was also alleged that the programme violated the prohibition of monetary financing. In an exercise of ultra vires jurisdiction, the German Constitutional Court’s preliminary response was to consider the OMT programme illegal under EU law. For the first time ever, the national court then referred the case to the CJEU. In the referring court’s view, the Court of Justice might either declare the OMT scheme contrary to EU law, or provide a more limited interpretation of the programme that is in accordance with the Treaties. The German Court provided certain indications as to what those limits should be, and it went on to state that whether the OMT scheme could eventually be held to violate the constitutional identity of the German Basic Law would depend on the CJEU’s interpretation of the scheme in conformity with EU primary law.

The case was sensitive for various reasons: although not yet used, the mere announcement of the OMT scheme played an important role in getting the euro area out of the acute phase of the crisis, and offers a credible defense against similar future scenarios. A declaration of illegality, or the placing of substantive limits on the programme, could have jeopardised post-crisis recovery. Additionally, the reference was the first ever submitted by the German Constitutional Court, and its tone was quite bold; there was, and is, clear potential for conflict between the two courts, with consequences unknown for EMU. Moreover, the case touches on the nature and legitimacy of the role of the ECB as an independent expert, and on the dichotomy between the original, rule-based conception of EMU and the evolving, more policy-oriented EMU that rose out of the crisis.

June 24, 2015

OMT Forum: Herwig Hofmann on the CJEU's Response to the BVerfG in 'Gauweiler'

New network member Herwig Hofmann (Luxembourg) has posted a working paper on SSRN entitled 'Gauweiler and OMT: Lessons for EU Public Law and the European Economic and Monetary Union'. Herwig has graciously agreed to post a condensed version of the paper's argument here, as part of a forum on the OMT dispute before both the German Constitutional Court, the Bundesverfassungsgericht (BVerfG), and the Court of Justice of the European Union (CJEU). We hope to have additional contributions to the forum in the coming days.

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Do exceptional situations make exceptionally good or exceptionally bad law? This is an old question often asked anew – especially in the context of the post-2008 economic crises travails of the European Economic and Monetary Union (EMU). The legal disputes which resulted from differing opinions about how to solve the crises and also how, incidentally, to improve the EMU’s governance have reached the Court of Justice of the European Union (CJEU). The most prominent case to date is the so-called Gauweiler case, a preliminary reference procedure initiated by the German Constitutional Court, the Bundesverfassungsgericht (BVerfG). I discuss this case in more fully argued working paper available on SSRN, 'Gauweiler and OMT: Lessons for EU Public Law and the European Economic and Monetary Union'.

Gauweiler concerns the legality of the decision of the Governing Board of the European Central Bank (ECB) of September 2012 on so called ‘Outright Monetary Transactions’ (OMT). This case is significant for legal integration in the EU since, although it is the first instance in which the German BVerfG has ever taken advantage of the preliminary reference procedure (Article 267 TFEU), the reference by the BVerfG was formulated in very terse words. Essentially, the reference asks for clarification about the legality of the ECB’s OMT decision. But that reference is not formulated in terms of a dialogue between Courts, each respecting the other’s distinctive powers. Instead, the BVerfG explains why it considers the ECB’s decision to be ultra vires of its mandate and asks the CJEU essentially to confirm this interpretation warning about potential consequences in its assessment of the ‘constitutional identity’ of the Federal Republic of Germany. Inherent in the reference is a thinly veiled threat not to accept the exclusive competence of the CJEU to review the legality of EU law and, instead, to unilaterally hold an act of an EU institution to be invalid within a Member State of the EU. The BVerfG reinforced its sceptical position of the primacy of EU law over the law of Member States by recalling in its decision for preliminary reference its case-law concerning the limits it perceives are set for the Federal Republic of Germany’s integration in the European Union. In its decision, it refers to and further interprets the scope of its own case-law making reference inter alia to its judgments concerning the Treaty of Maastricht, the Treaty of Lisbon and in Honeywell, as precedent for its questions to the CJEU.

This approach to formulating the preliminary ruling, a legal obligation for any court of a Member State of the EU ‘against whose decisions there is no judicial remedy under national law’ (Article 267 para 3 TFEU) can therefore not be seen as a long overdue normalisation of the relations between the CJEU and the BVerfG. The BVerfG as one of the last remaining constitutional courts of Member States instead of simply complying with its clearly defined obligations under the Treaties to submit in adequate cases questions for preliminary reference. Rather, it is formulated as ‘last warning’ by the BVerfG after which, if the CJEU does not fall in line with its approach, it would consider to radically challenge the constitutional order of the EU and, in effect, questioning the Union’s very existence as a constitutional order.

June 22, 2015

Book Announcement: Terence C. Halliday and Gregory Shaffer, eds., Transnational Legal Orders (Cambridge 2015)

Network member Gregory Shaffer (UC-Irvine) has alerted us that his new collective volume, edited together with Terence Halliday (ABF), entitled Transnational Legal Orders, is now out from Cambridge University Press.  The publisher's blurb is below and more details can be found here.

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This book offers a path-breaking, empirically grounded theory that reframes the study of law and society. It shifts research from a predominantly national context to one that places transnational, national, and local lawmaking and practice within a single, coherent, analytic frame. By presenting and elaborating a new concept, transnational legal orders, Halliday and Shaffer present an original approach to legal orders that affect fundamental economic and social behaviors. The contributors generate arrays of hypotheses about how transnational legal orders rise and fall, where they compete and cooperate, and how they settle and unsettle. This original theory is applied and developed by distinguished scholars from North America, Europe, and Asia in business law (taxation, corporate bankruptcy, secured transactions, transport of goods by sea), regulatory law (monetary and trade, finance, food safety, climate change), and human rights law (civil and political rights, rule of law, right to health/access to medicines, human trafficking, criminal accountability of political leaders).

June 17, 2015

Mattias Kumm on ISDS as "the Institutionalization of Unjustified Privilege"

Network member Mattias Kumm (NYU/Humboldt) has alerted us to a new piece he has posted on the website of the European Society of International Law.  Entitled "An Empire of Capital? Transatlantic Investment Protection as the Institutionalization of Unjustified Privilege", an excerpt can be found below and the full article can be found here.

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In the following I will seek to briefly sketch a broader historical context for the debate on investor-state arbitration provisions in TTIP and CETA.  Within such a broader context the wholesale rejection of ISDS provisions in these treaties will, I think, appear in a different light. The field of investor state arbitration is historically connected to purposes and contexts, which are strikingly different from the contemporary world of trade and investment relations between liberal constitutional democracies. What might conceivably have been a mutually useful policy instrument in the relationship between developing and developed countries – and there is much that can be contested even in that context - has no plausible role to play in the relationship between developed liberal constitutional democracies.  The idea of investment arbitration as a field with its own separate dispute resolution infrastructure should be seen as an inherently dubious transitional phenomenon – perhaps comparable to the League of Nations Mandate System or the UN Trusteeship System - that deserves to wither away over time, rather than being reformed. [Read the full article here]

More from Daniel Halberstam on EU Accession to the ECHR

Daniel Halberstam (Michigan) has alerted us to a new piece he's posted on the Verfassungsblog on the topic of EU accession to the ECHR (for earlier interventions, see here).  Entitled "Foreign Policy and the Luxembourg Court: How to Address a Key Roadblock to EU Accession to the ECHR", the first paragraph is below and the remainder can be read here.

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The Court of Justice of the European Union recently declared the European Union cannot join the European Convention on Human Rights (ECHR) unless the Luxembourg court has jurisdiction over all questions of EU law that reach the Strasbourg court – including Common Foreign and Security Policy. The reasons behind this decision have been discussed elsewhere. The big question now is, how to proceed? [Continue reading here]

June 15, 2015

Europe's Justice Deficit? (Debate at LSE, June 4, 2015)

Network member Gráinne de Búrca (NYU) has sent us the following account, which also appears on EUtopia hereof a debate on Thursday June 4, 2015 at the London School of Economics, between Justice Giuliano Amato of the Constitutional Court of Italy (former Italian Prime Minister) and Professor Christian Joerges (Hertie School of Governance).  The debate marked the publication by Hart Publishing of a new collection of essays on Europe's Justice Deficit?" (available here), edited by Dimitry Kochenov, Gráinne de Búrca and Andrew Williams.  
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Christian Joerges launched the debate by reflecting on the EU’s origins, and on the strong influence of German ordo-liberal economic theory in the creation and design of the European Economic Community.  He described an ordo-liberal legal framework as one which “privileges and constitutionalizes a private-law society”; and which treats as “just” whatever a system of undistorted competition delivers.  He asked the audience whether the EU’s institutional design and its ordoliberalism-inspired “integration through law” agenda has been an obstacle to the pursuit of justice instead of a means of fostering it.  Citing the various challenges which have been made to this ordo-liberal vision by writers such as Fritz Scharpf, Jürgen Habermas and Wolfgang Streeck, he emphasized the democratic and social embeddedness of markets and their dependence on other institutions for their capacity to deliver justice, and doubted whether the EU in its current form has that capacity.  Moving on to the writings of John Rawls and Thomas Nagel on the scope of justice, and on the difficult question of whether “justice between states,” and particularly any form of redistributive justice, is really possible, he posed the question: “what are the Greeks entitled to expect from the Germans?”  The EU is better understood, he suggested, in terms of “inter-democracy” (to use a term derived from Daniel Innerarity’s work, here) rather than being thought of as itself a democratic system.
On the current crisis, with its politics of austerity and governance-by-troika, Joerges argued that the kind of interventionist European economic and financial management we have seen in recent years is actually far removed from the ordo-liberal vision, in its reliance on discretionary power rather than justiciable rules.  Finishing on an understandably gloomy note, he suggested that while the EU’s crisis management may well destroy southern European economic cultures, the social and institutional resistance of these cultures means that it will nevertheless be unable to replace them with some other top-down model of economic governance.

May 30, 2015

Book Announcement: Alicia Hinarejos, The Euro Area Crisis in Constitutional Perspective (OUP 2015)

Network member Alicia Hinarejos (Cambridge) has just published a new book with OUP.  Entitled The Euro Area Crisis in Constitutional Perspective, the book provides a comprehensive treatment of the complexities of European Economic and Monetary Union, and an account of the recent tribulations of the eurozone in the light of the key constitutional issues for the Union and the Member States alike.  The publisher's blurb is below; further information is available here.

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The euro area sovereign debt crisis has been the greatest threat to the euro since its inception, but the consequences of the crisis go well beyond the realm of macroeconomics: the crisis has cast doubt on the viability of a mechanism of integration such as the one envisaged in Economic and Monetary Union ("EMU"), and on the future of the European Union as a political project in the face of citizens' growing disaffection. The various responses to the crisis have not only altered the principles underlying EMU; they have also had a profound impact on the constitutional orders of the EU and its Member States.

This book focuses on the euro area crisis and its aftermath from a constitutional perspective. It provides a critical analysis of the workings and evolution of Economic and Monetary Union, the changes brought by the crisis and their broader effects, and the constitutional obstacles to integration in this area. Looking forward, it tackles the uncertain future of economic and fiscal integration and the challenges posed. This is a compelling and incisive account of some of the most significant developments and dilemmas facing the European Union since its creation.

Funding Announced for Ph.D. Positions at University of Portsmouth

Friend of the network Wolfram Kaiser (Portsmouth) has written to announce the availability of two bursaries for Ph.D. studies at the University of Portsmouth associated with the Center for European and International Studies Research.  The announcement is below (note the deadline of June 4, 2015); further information can be obtained from Wolfram.

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The University of Portsmouth has advertised 30 Ph.D. bursaries. For more information see here: www.port.ac.uk/IFRI2015. Two of these bursaries (fees and maintenance grant) are associated with the Centre for European and International Studies Research. Applicants can submit a project proposal which links into one of several strategic research projects. One of these projects is “Experts and Expertise in Politics and Policy-Making”. Project proposals can relate to any aspects of this theme in historical or contemporary social science perspective, with priority given to projects that seek to tackle related issues in transnational, European or global political spaces. The deadline for the submission of applications is June 4, 2015. The short deadline due to UK funding decisions might mean limited competition for these bursaries, so that applicants are encouraged to submit their candidacy even if they have no fully developed project at this stage. Applicants are in any case encouraged to contact Professor Wolfram Kaiser for an informal discussion of their project idea as soon as possible.

May 28, 2015

Call for Proposals (Due Oct. 1, 2015): "Resilient Europe?", 23rd International Conference of Europeanists, Philadelphia, April 14-16, 2016

We've been alerted that the 23rd International Conference of Europeanists, organized by the Council of European Studies, will take place in Philadelphia on April 14-16, 2016.  The topic, fittingly, is "Resilient Europe?"  The organizing committee includes two network members, Mark Pollack (Temple, as co-chair) and Peter Lindseth (UConn).  The organizing committee is especially interested in including a greater number of legal scholars on the program, so please consider submitting a proposal.  The instructions are below.  

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Resilient Europe?
Philadelphia, Pennsylvania, U.S.A. • April 14-16, 2016
to be held at DoubleTree by Hilton Philadelphia Center City
Organized by the Council for European Studies

Call for Proposals

Resilience is the capacity to survive, to bounce back and to innovate in the wake of extraordinary stress or unexpected crises. Psychologists view resilience as a character trait. Today, researchers and scholars of all stripes are beginning to understand resilience as constitutive of societies as well as of individuals.

The Program Committee for the 23rd International Conference of Europeanists invites participants to consider contemporary Europe’s capacity for resilience. Since the financial crisis began in 2008, stresses and shocks of various sorts have posed dilemmas that challenge Europe’s resilience in economic, political, and cultural domains. How will European economies confront slow growth and austerity, as well as the atrophy of “social Europe” and the growth of inequality? How will demographic decline combined with immigration and assimilation affect the ethnic composition of Europe? Will the protracted Eurozone crisis and waning public support for European institutions and policies alter the viability of the European project? How will secular Europe confront the challenges of religious mobilization? How will European democracies confront the rise of nationalist parties and the valorization of “illiberalism” as viable political practice? Can Europe remain a “Normative Power,” a force for liberalism, democracy and the rule of law in the world, in the face of rising powers and resurgent authoritarianism?

The Council for European Studies (CES) seeks proposals that explore these questions and the quality of resilience in Europe. It encourages proposals from the widest range of disciplines and, in particular, proposals that combine disciplines, nationalities, and generations. CES invites proposals for panels, roundtables, book discussions and individual papers on the study of Europe, broadly defined, and strongly encourages participants to submit their proposals as part of an organized panel. Full panel proposals will be given top priority in the selection process. To form panels, participants may find it useful to connect with like-minded scholars through the many CES research networks, which can be found here: http://councilforeuropeanstudies.org/research/research-networks

Proposals may be submitted from August 17 to October 1, 2015. Participants will be notified of the Program Committee’s decision by December 10, 2015. Information on how to submit proposals will be posted on the CES website and disseminated through its newsletter. To subscribe to the CES newsletter visit: http://councilforeuropeanstudies.org/

Juan Díez Medrano, Chair,
Council for European Studies
Universidad Carlos III de Madrid

Mabel Berezin, Co-Chair,
CES Conference Program Committee
Cornell University
Mark Pollack, Co-Chair,
CES Conference Program Committee
Temple University