Suchergebnisse

In May 2014, 26 Member States of the EU concluded an intergovernmental agreement on the transfer and mutualization of contribution to the Single Resolution Fund (SRF). This international treaty constitutes a core component of the second pillar of the European Banking Union – the Single Resolution Mechanism, to wind down failing banks in the Euro-zone – and complements an EU regulation adopted by the European Parliament and the Council creating the SRF. This article critically analyses the choice to use international law to adopt the rules on transfer and mutualization of contributions to the SRF. As the article maintains, resort to an intergovernmental agreement in this case was not necessary from a legal point of view. In fact, the justification for the use of international law in this case rested on a flawed legal argument, namely that EU regulations cannot impose financial obligations on the states. Moreover, as the article explains, resort to international law is unsound from a policy point of view. The use of an international treaty to regulate the transfer and mutualization of contributions to the SRF opens the door for national courts' review of the agreement – a prospect which contrasts with the constitutional logic of leaving decisions about economic questions in the political process. In light of these weaknesses, the article explains that the intergovernmental agreement was tolerated by the European Parliament to secure completion of the Banking Union before the 2014 EU elections, but concludes suggesting that a pressing constitutional challenge for the European Parliament is to devise legal and political mechanisms to prohibit the Member States from acting outside the EU legal order whenever the Treaties provide for the powers and means to act within the Union.

The enhanced cooperation procedure has recently acquired a new popularity with EU policy-makers. Yet, the use of enhanced cooperation has also come under scrutiny, with the ECJ being asked to rule for the first time on the matter in the legal challenges brought by Spain and Italy against the decision of the Council to authorize enhanced cooperation for the creation of a unitary patent protection regime. This article examines the Treaty rules on enhanced cooperation and seeks to provide a coherent reconstruction of the function of this procedure in the constitutional system of the EU. As the article argues, an historical and systematic interpretation of positive law suggests that enhanced cooperation is finalized toward multi-speed integration in the EU. As a result, Member States are allowed to resort to this instrument only when they disagree whether to act jointly at the EU level but not when they disagree how to do so. In light of this framework, the article critically examines Spain & Italy v. Council of the EU, dealing with the legality of enhanced cooperation in the creation of a unitary patent and concludes, contrary to the opinion of the AG and the judgment of the ECJ, that Spain and Italy were legally right in challenging the Council decision: despite their unreasonable position from a policy-making perspective, the Council had misused its powers in authorizing an enhanced cooperation in the case.

This Article analyzes the central provision of the recently en-acted Fiscal Compact, which directs member states of the European Union (EU) to incorporate into their constitutions a "golden rule"—that is, a requirement that yearly budgets be balanced. The purpose of the Article is to examine—by surveying the introduction of these pervasive budgetary constraints in four selected EU member states (Germany, France, Italy and Spain)—the institutional implications that the "golden rule" has on the role of the political and judicial branches, both in the states and in the EU as a whole. The Article argues that, while the domestic effects of the "golden rule" are likely to vary from one state to another, the Fiscal Compact systematically enhances the powers of the EU institutions to direct and police the budgetary policies of EU member states, thus increasing centralization in the EU architecture of economic governance. The Article then contrasts this development with the federal experience of the United States. A comparative perspective sheds light on the fact that, while most U.S. states are also endowed with constitutional "golden rules," the federal government never played a role in their adoption and is barred from interfering with the budgetary processes of the states. In conclusion, the Article suggests that an unexpected paradox emerges in the new constitutional architecture of the EU: Although in crafting the institutional response to the Euro-zone crisis state governments have repeatedly discarded a U.S.-like federal model as being too centralized and centripetal for the EU, they have ended up establishing a regime that is much less respectful of state sovereignty than the U.S. federal system.

During the last two decades, extraordinary legal developments have taken place at the regional and global level, as the world of international law has become inhabited by a growing number of organizations designed to govern phenomena cutting across state borders and affecting the life and wealth of individuals world-wide. This evolving reality has challenged traditional understandings of international law and increasingly scholars have resorted to the language of constitutionalism to describe the variety of regimes that by now exist beyond the states. The purpose of this essay is to discuss how comparative law can inform the discussion about the alleged constitutionalization of international law and provide insights to understand several features of the structure, functioning and finality of global governance institutions. In particular, the essay argues that a comparative analysis, grounded on historical studies, of experiences of federal governance offers a valuable perspective to analyse the phenomena of transnational governance and suggests that steps should be made to re-evaluate a long thread of legal practice and political thought that, from Althusius to the Federalist Papers, has offered original models and ideas to conceptualize constitutional regimes which were neither national nor international, but rather a mixture of both. Comparative federalism can today supply a rewarding framework to explain the developments occurring on a global scale. Indicating the path for future scholarly research in the field, the essay begins exploring the mysteries of global governance through the prism of federalism, identifies three recurrent features of transnational constitutional regimes - pluralism, subsidiarity and liberty - and underlines how these find correspondence in the experiments of federal governance of the past.