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The authors believe that the judgment of the German Federal Constitutional Court contains serious breaches of EU law and is manifestly erroneous. The German judges refuse to apply the CJEU’s judgment and arrogate the power to assess the legality of European Central Bank (ECB) decisions and to review the reasoning of the CJEU, which they qualify as being ‘unintelligible and arbitrary’ for the sole purpose of declaring it ‘ultra vires’. They use the principle of proportionality in a legally incorrect way, ignoring the difference in scope between the latter and the principle of conferral. They make highly questionable use of the principle of democracy and of economic analysis to assess the merits of ECB decisions. A careful analysis of the judgment leads us to wish for the initiation of an infringement procedure. Breach of EU law by the judiciary conferral, democratic principle, dialogue between courts, EU competences, infringement procedure, manifest error, primacy, proportionality, ultravires

Comment to Case C-391/17, Commission v. United Kingdom, Judgment of the Court of Justice (Grand Chamber) of 31 October 2019, EU:C:2019:919 and Case C-395/17, Commission v. The Netherlands, Judgment of the Court of Justice (Grand Chamber) of 31 October 2019, EU:C:2019:918 The judgments analysed both deal with the vicarious liability of Member States for their Overseas Countries and Territories (OCTs), an important issue of EU constitutional law.1 Both judgments also deal with the consequences of the duty of sincere cooperation for a loss of own resources to the EU budget due to acts or negligence of Member States. There are several technical complexities which make a rapid reading of the judgments, which differ somewhat in the two cases, more difficult. These complexities relate, first, to specific detailed issues on the application of the Overseas Association Decision of 1991 (1991 OCT Decision),2 and, second, to the liability of Member States for a breach of EU law towards the Union itself and towards other Member States. To sum up, the principle of vicarious liability of Member States for acts or negligence of their OCTs is clearly affirmed by the judgments in Commission v. United Kingdom and Commission v. The Netherlands. The Opinions of Advocate General Bobek provide further confirmation for that conclusion, even though he advised against accepting the specific claims of the Commission. The reasoning of the Court clearly shows that this vicarious liability is a consequence of the duty of sincere cooperation, as would have probably appeared even more clearly by endorsing the reasoning of Advocate General Cruz Villalon in his Opinion in Prunus, or the reasoning of this commentator, which is supported by the scholarship on EU overseas law.

espanolLa sentencia del 5 de mayo de 2020 del Zweiter Senat del Bundesverfas-sungsgericht, es manifiestamente inadecuada del punto de vista juridico, en la medida en que expresa la pretension del juez constitucional aleman de evaluar la legalidad de las decisiones del BCE y la correccion argumental del TJUE en Weiss. Los jueces alemanes manejan el principio de proporcionalidad para evaluar la correcta aplicacion del principio atribucion. Ademas, los jueces hacen un uso muy cuestionable del principio de democracia y del analisis economico para eva-luar la correccion del programa PSPP del BCE. La sentencia es extremadamente peligrosa al cuestionar en ultima instancia la aplicacion del Derecho de la UE en un Estado miembro y alienta a otros tribunales y a los gobiernos de los Estados miembros a hacer lo mismo. El razonamiento de los jueces es la demostracion flagrante de una forma de “acosamiento cultural” que aflora especialmente en el razonamiento realizado sobre la proporcionalidad. EnglishThe judgment of 5 May 2020 of the Zweiter Senat of the Bundesverfas-sungsgericht is manifestly inappropriate from a legal point of view as it expresses the German constitutional judge’s claim to assess the legality of the ECB’s deci-sions and the correctness of reasoning of the CJEU in Weiss. The judges are using the principle of proportionality to assess the correct application of the principle of conferral in a way that is simply impossible to follow and thus objectively ar-bitrary. Furthermore, the judges make a very questionable use of the principle of democracy and of economic analysis in assessing the correctness of the ECB’s PSPP program. The judgement is extremely dangerous by ultimately questioning the application of EU law in a Member State and encourages other courts and Member States’ governments to do the same. The judges’ reasoning is the glaring demonstration of a form of “cultural bullying” which particularly emerges in the reasoning carried out on proportionality.

SOLVIT is an on-line, free-of-charge service operating in all EU countries (and in Iceland, Liechtenstein, and Norway), which officially started its activity in July 2002. It was born as a network of national SOLVIT Centres, connected via an internetbased, multilingual network, with the aim of getting the national Centres to work together to reach the goal of helping businesses and citizens to overcome cross-border issues. Over time, and not without possible weaknesses in both practical and legal terms, it has developed to a multi-faceted single market tool, which also serves the purpose of identifying and try to overcome incorrect application of EU rules by national and local authorities.

Cet article explique en quoi l’obligation de motiver est originale en droit de l’Union europeenne (UE), pour deux raisons principales. Une obligation generale de motivation de tous les actes, individuels comme de portee generale, a ete etablie en droit positif des le traite etablissant la Communaute europeenne du charbon et de l’acier (CECA), signe en 1951, a une epoque ou il n’existait dans aucun pays europeen un principe comparable. Les fondements de cette obligation sont non seulement l’habituel corollaire du controle juridictionnel sur l’exercice des pouvoirs publics, mais aussi une manifestation essentielle du principe de transparence ou publicite, en tant qu’elle oblige les autorites a rendre compte de la maniere dont elles accomplissent les tâches dans le respect des objectifs qui leur sont assignes. L’obligation de motiver s’impose non seulement aux institutions, organes et organismes de l’UE, mais aussi aux autorites des Etats membres dans la mise en œuvre du droit de l’Union.

This chapter focuses on the relevance of a distinction between European Union (EU) Member States on the one hand and non-EU member states on the other when trying to identify the common core of the law regarding judicial review of administrations in Europe. It begins by looking at how EU membership impacts on the issues of substance and process in the Member States' laws of judicial review of administration. The chapter then considers how the differences and similarities between EU Member States can be interpreted. It also studies the cases of Switzerland and Ukraine in greater detail. There is very little commonality between Ukraine and Switzerland, apart from the fact that both countries are Members of the Council of Europe (CoE) and thus parties to the European Convention on Human Rights (ECHR), and that they are not members of the EU, which might be an especially good reason to compare them.

In un periodo in cui le dichiarazioni della neopresidente della BCE Christine Lagarde, durante l’emergenza sanitaria generata dall’epidemia di coronavirus, hanno scatenato polemiche, può essere utile tornare con analisi multidisciplinari sulla comunicazione della BCE ai tempi di Mario Draghi, come fanno i tre articoli di seguito pubblicati in questo numero della rivista “Il Politico”.

Vengono presentati i due articoli che seguono, relativi agli Independent Accountability Mecanisms (IAMS) delle istituzioni finanziarie internazionali. Si tratta di alcuni risultati di un Workshop tenuto nell’ambito del PRIN 2012 (2012SAM3KM) in materia di Codificazione dei procedimenti amministrativi europei, nel quale sono state discusse le potenzialità del sistema degli IAMS per le agenzie, le istituzioni e gli organismi dell’Unione Europea.

Administrative law comparison plays a specific institutional role in the framework of the League of Nations/United Nations (UN) on the one side and in the Council of Europe and the European Union (EU) on the other. Further enquiry into the methodologies used might show how comparison in the EU framework is developing in the direction of H Patrick Glenn’s proposals of a new aim for comparative law. The use of comparative law methodology remains, generally speaking, rather weak in the framework of global governmental organizations, even in international administrative tribunals. It is, on the contrary, quite developed in the framework of the Council of Europe, with limitations due to the intergovernmental nature of the organization. In the framework of the EU, administrative law comparison has had a paramount role since the 1950s in the jurisprudence of the European Court of Justice (ECJ) and is constantly developing in legislation and rule-making.

Les traités de Paris instituant la CECA et la CED, ainsi que le projet de statut de la Communauté politique européenne, qui sont antérieurs aux traités de Rome et ne sont pas actuellement en vigueur, constituent la source la plus importante du dispositif institutionnel de l’Union européenne actuelle et méritent donc d’être étudiés à nouveau, y compris en vue de la poursuite de la réforme de l’UE. Il en va de même pour le droit dérivé et les politiques qui en sont issues, principalement la politique industrielle, et la protection des travailleurs et de l’environnement incluses dans le traité CECA. À cet égard, il convient d’accorder une attention particulière aux Mémoires de Jean Monnet.

The reasoning of the German Constitutional Court judges to prohibit the Bundesbank from buying Sate securities on the secondary market if the ECB does not demonstrate within three months the proportionality of its decisions under the PSPP programme is not sustainable. Instead, the judges, who demonstrate unfounded intellectual arrogance in their claim to interpret EU law, make manifest errors in applying the principle of proportionality to the delimitation of competences between the Union and the Member States. They also make methodological errors in their application of the principle of proportionality to ECB decisions, while highlighting their prejudices in the field of monetary and economic policy. This paper has been published online on https://ceridap.eu/the-unbearable-heaviness-of-the-german-constitutional-judge-on-the-judgment-of-the-second-chamber-of-the-german-federal-constitutional-court-of-5-may-2020-concerning-the-european-central-banks-pspp/ The French version is available on http://rivista.eurojus.it/wp-content/uploads/pdf/Ziller-CorteCost-tedesca-PSPP.pdf The Italian versio is available on https://www.aisdue.eu/jacques-ziller-linsopportabile-pesantezza-del-giudice-costituzionale-tedesco-2/

The expression “the Lisbon Treaty” (LT) is a shortcut to the treaties upon which the European Union (EU) has been based since December 1, 2009. During the “reflection period” that lasted from June 2005 to December 2006 three options were available: remaining with the European treaties as amended by the Nice Treaty; starting new negotiations in order to adopt some changes deemed technically necessary; or trying to get “the substance” of the Constitutional Treaty (CT) of 2004 approved in the form a new treaty. Most member states and the EU institutions were in favor of the third option. The negotiations that led to the adoption of the LT in December 2007 departed from the usual treaty amendment scenarios. The content of the LT is to a large extent similar to that of the CT, as most of the novel provisions of that treaty have been taken over as they were written in the CT and introduced in the existing European Community (EC) and EU treaties. Apart from a few institutional innovations such as the Permanent President of the European Council and the new voting system in the Council, most innovations with regard to the European communities are to be found in the details. The ratification process of the LT was difficult, as it was slowed down by the necessity to hold two referenda in Ireland, and to overcome the resistance of the President of the Czech Republic, an overt Euroskeptic. The negotiations of 2007–2009 shed some light on the importance in EU policy-making and especially in treaty negotiations of the epistemic community of legal experts and, more precisely, of experts in EU law. Events in the years 2010 and 2011 led to minor treaty amendments, shaping the present content of what is usually referred to as the LT. Whether Brexit and the EP elections of 2019 will lead to important changes remains unknown.

This paper tries to explain the present day attitudes towards EU law of the three French Supreme Courts to a public of non-French lawyers, with the aim of revisiting the traditional view of a slightly sceptical jurisprudence in European Union matters, which dates from the 1970s; that former attitude could be compared to the present day attitude of the Bundesverfassungsgericht. Nowadays however, while the latter Court appears often to pay lip service to the development of European integration with its own concept of Europafreundlichkeit – which is repeatedly used in the Lisbon Judgment of 2009 of the German Constitutional court and in its following rulings – French supreme courts appear having a truly Europe-friendly attitude since a decade or so, because they have understood that the best way not to be overflown by the tide of EU law is to participate again in its further development, a point that lawyers such as Maurice Lagrange had well understood since the early 1950s.The paper starts with a summary presentation of the French judicial system, in order to clarify why it would not be accurate to concentrate comparisons on the sole constitutional court (section 1), before analysing French jurisprudence on the issue of treaty revision (section 2), and on the application of EU law in France, especially on the transposition of directives (section 3). As a conclusion, the paper tries to explain the intricacies of the apparently diverging jurisprudences of French supreme courts as to the compatibility between the recent system of ‘priority question of constitutionality’ as illustrated by the Melki and Abdeli case of 2010 (section 4).

The kind of “diversity” which can be found within EGPA and its members belongs, at least, to three orders: cultural, disciplinary and in terms of reference model. A key question is whether this diversity is kept alive or reduced, and whether this is for the better or the worse. Diversity: it has always been strong within EGPA; it is sufficient to look at the list of the EGPA Permanent Study Groups to be convinced. Unity: more synergies within EGPA and with the other entities of the International Institute of Administrative Sciences (IIAS) family; it is a work that constantly needs to be renewed, but it certainly is beneficial to all.

This chapter covers the Empty Chair crisis, the context of events leading up to the crisis, and its impact and implications on European integration. It begins with an account of the events leading up to the crisis, which was triggered by the 1965 EEC Council meeting. The issue to be solved was that of the financing rules for the common agricultural policy (CAP), although the chapter soon reveals that much more was at stake for France as well as the other Member States. One observer notes that the conflict ‘centred, more fundamentally, on the question of the governance of the Community (to use the modern phrase). The legal basis of the Commission’s activities and its independence were both in the balance’.

La problematica dei diritti č strettamente collegata alla natura pattizia della ‘costituzione' della Comunitŕ - ora Unione - europea come giŕ chiarito dalla Corte di giustizia nella sentenza Van Gend en Loos del 1963. Č su questa base che vanno quindi analizzate le novitŕ del trattato di Lisbona, per quanto riguarda diritti derivanti da obblighi degli Stati membri, che sono nuovi rispetto ai previgenti trattati CE e UE. L'autore esamina come si manifesta il carattere vincolante della Carta dei Diritti fondamentali dell'Unione europea per tutti gli Stati membri, dato che il Protocollo sulla Polonia e il Regno Unito non rappresenta una deroga al sistema di diritto UE. Infine, l'autore presenta le tre piů importanti conseguenze del carattere ormai vincolante della Carta, cioč la differenziazione tra diritti fondamentali e altri diritti, l'applicabilitŕ di una riserva di legge e la possibilitŕ di ricorso alla procedura di rinvio pregiudiziale per l'interpretazione della Carta.

Im Hinblick auf die vorhergehende Solange-Rechtsprechung und das Maastricht-Urteil treffen wir in diesem Urteil auf folgende Neuerungen: i) die sehr starke Bindung zwischen Demokratie und Souveranitat in der Umsetzung des Grundsatzes der begrenzten Einzelermachtigung und, ii) die Andeutung, dass das Bundesverfassungsgericht allein zustandig ist, den Begriff der deutschen Verfassungsidentitat zu interpretieren. Das BVerfG lasst in seinem Urteil jedoch nicht erkennen, welche Folgen ein mit der deutschen Verfassungsidentitat oder dem Grundsatz der begrenzten Einzelermachtigung inkompatibler EU-Rechtsakt in prozessualer Hinsicht hatte. Nach Ansicht des Verfassers ware der einzig korrekte Weg fur das BVerfG, die Frage der Verfassungswidrigkeit eines solchen Rechtsaktes – reformuliert als Frage der Auslegung oder der Gultigkeit des Unionsrechts – dem Europaischen Gerichtshof als Vorabentscheidungsfrage vorzulegen.

Novel features of the VerfG’s judgment in relation to the previous ‘solange’ and Maastricht jurisprudence are: (1) the very strong link between democracy and sovereignty in the implementation of the principle of conferral; and (2) the indication that the Constitutional court will be the sole interpreter of what constitutes Germany’s constitutional identity. The Court does not indicate what would happen in procedural terms if it were to find a provision of EU law in contradiction with Germany’s constitutional identity or which would not respect the principle of conferral. This writer’s view is that the only correct way to solve such an issue would be for a Constitutional court to refer to the European Court of Justice (ECJ) for a preliminary ruling on the invalidity of such a provision.

In this paper Professor Ziller addresses the intriguing question of the relationship of the European Union – which is not a state and which has no territory of its own – to the territories of EU Member States. The paper provides a survey of the overseas territories affected and the evolution of the case law of the European Court of Justice on the extent to which the provisions of the EC Treaty apply to the European territories overseas.

When discussing the nature of EU law it is common usage to highlight the principles of direct applicability and of primacy as the two fundamental features that distinguish EU law both from classic international treaty law and, to a certain extent, from domestic law. Increasingly reference is also being made to the consequences of the principle of sincere cooperation, which, contrary to direct applicability and primacy, is being expressly mentioned in the EU Treaties, i. e. in Art. 4.3 TEU. Strangely enough most of the EU law literature does not dwell on a fourth principle, which to my view is of fundamental importance to the nature of EU law, namely the principle of multilingualism. This is the reason why I thought it necessary to dedicate a whole section to multilingualism in my own handbook of EU law, in the chapter on Fundamental Features of EU Law. Interestingly most colleagues, albeit acknowledging the originality of my approach, told me that you could not put multilingualism at the same level as direct effect or supremacy. Albrecht Weber, this book’s addressee, is not one of the latter colleagues; on the contrary, throughout his major work on European Comparative Constitutional Law, Weber clearly shows his consciousness of the importance of language differences, including the fact that “the signification of a concept may break away from its etymological sources and bring forward a different content; even concepts such as Constitution, Verfassung, Grundgesetz, Grondwet (the Netherlands) show differences in their significations.”

Italian Abstract:L'obbliho f(interpretazione vconforme vale chiaramente non solo riguardo ai trattati UE e adiritto derivato, ma anche per i diritti fondamentali e i principi generali del diritto dell'Unione. Il fatto che nella maggior parte dei casi non sono soddisfatte le condizioni dell'applicabilita diretta (cioe chiarezza, precisione e incondizionalita) per i principi generali e dei diritti fondamentali non scritti nel diritto primario implica che in caso di contraddizione tra la legge dello Stato membro e quei principi e diritti , i giudici degli Stati membri dovranno spingere l'interpretazione conforme per quanto possibile, in quanto non possono fare affidamento sul primato al fine di evitare l'applicazione della legge rilevante stato membro. Molti giudici e studiosi sembrano non essere a conoscenza di questo, probabilmente a causa del fatto che essi non hanno una sufficiente comprensione della natura giuridica dei principi generali del diritto dell'Unione europea.English Abstract: The duty of conform interpretation applies clearly not only to EU treaties and secondary law but also to fundamental rights and general principles of EU law. The fact that in most cases the conditions of direct applicability (i.e. clarity, precision and unconditionality) are not met for general principles and fundamental rights that are not written in primary law implies that in case of contradiction between member state law and those principles and rights, member state courts will have to push conform interpretation as far as possible as they cannot rely on primacy in order to avoid applying the relevant member state law. Many courts and scholars seem not to be aware of the latter, probably due to the fact that they do not have a clear enough understanding of the legal nature of general principles of EU Law.

A l’instar de la distinction entre DOM et TOM dans la Constitution francaise, le droit de l’Union europeenne distingue entre les regions ultraperipheriques (RUP) et les pays et territoires d’outre-mer (PTOM). Les RUP sont integrees a la Communaute europeenne – sous reserve d’adaptations, les PTOM lui sont simplement associes. La Constitution pour l’Europe reprend ces deux regimes, avec une innovation : la possibilite d’un changement de statut a la demande de l’Etat concerne.

In order to appreciate that public law is capable of operating as a tool for modern public management rather than an impediment to reform, it is necessary to overcome a series of confusions, clichés and misunderstandings relating to the very notions of law, public management and public law. A series of confusions and misunderstandings results as much from the multiplicity of meanings attached to the terms used, as from ignorance of the complexities of both practice and science. Misconceptions as to concepts assumed to be different on either side of the Channel or either side of the Atlantic must be identified and dismantled. If lawyers take the trouble to delve into what law is — and public law in particular — and if the permanent temptation on the part of conservative thinking of every kind to instrumentalize law, as a supposed obstacle to change, is countered, it is possible to demonstrate that, far from being an obstacle to the reform of the state, law — and public law in particular — is capable of providing a considerable incentive to modernization, of which it is an indispensable tool.

Precedents in European Union member states for the negative referenda in France and The Netherlands on the Constitution for Europe. Evolution of the investiture of the Commission: parallel with France under Third and Fourth Republic. Double headed executive (President of the European Council and President of the Commission) and ‘double hats’ (Union Minister for Foreign Affairs) in line of the European constitutional tradition. The unborn ‘Legislative Council’ and its Austrian and German counterparts. The aborted ‘Congress of the Peoples of Europe’: forum for ‘State of the Union’ speech, not a electoral body. Protection of minority rights in the Constitution for Europe due to insistence of the Hungarian government; foreign to the dominant Western constitutional concepts. Representative democracy and the formal concept of law: European Laws and Framework Laws as ‘Acts of Parliament’. Strict limits on the possibility to delegate legislation: German, Italian, French roots. European Laws and Regulations: unachieved hierarchy and French precedent. Judiciary as a relative minor branch of government as in the British and French traditions. No German Verfassungsbeschwerde or Spanish recurso de amparo, but probably more annulment procedures and preliminary questions on legality and constitutionality than before. Parallels with German federal concepts: Union Law über Alles; no rigid Kompetenzkatolog and joint competences; distribution of competences not limited to law-making. More than lip service to decentralisation. Constitutional ping-pong and intertwined constitutionalism: territories d'outre- mer and outermost regions.