The First Member State Rebellion? The European Court of Justice and the negotiations of the 'Luxembourg protocol' of 1971’

in European Law Journal (2015), 21(5), 680-699

This article delves into the history of the negotiations of the ‘Luxembourg protocol’ of 1971, which conferred jurisdiction upon the European Court of Justice (ECJ) for the interpretation of the 1968 ... [more ▼]

This article delves into the history of the negotiations of the ‘Luxembourg protocol’ of 1971, which conferred jurisdiction upon the European Court of Justice (ECJ) for the interpretation of the 1968 Brussels convention. The protocol provided a preliminary ruling procedure that had undergone restrictive modifications in comparison with the European Economic Community (EEC) treaty’s original (Article 177). Some have, therefore, interpreted the outcome of the negotiations as a sign that the mechanism was being criticised in national administrations. This article will, for the first time, bring to the surface archival evidence to explain why the protocol contained an altered version of Article 177 EEC. Furthermore, it will reveal that the governments’ experts’ intention to limit the procedure in the protocol caused serious concern inside the ECJ, of which some members consequently repeatedly urged national decision-makers to opt for formulas identical with Article 177 EEC. [less ▲]

Constitutionalising EU Executive Rule-Making Procedures: A Research Agenda

in European Law Journal (2013), 19(1), 1-21

The existence or non-existence of procedural rules for executive rule-making in the EU is not merely a ‘technical’ question free of constitutional value choices. This article argues that constitutional ... [more ▼]

The existence or non-existence of procedural rules for executive rule-making in the EU is not merely a ‘technical’ question free of constitutional value choices. This article argues that constitutional principles such as transparency, openness and participatory democracy highlighted by the Treaty of Lisbon constitute decisive guidelines for the design of administrative procedures in the EU as they can have a considerable impact on substantive outcomes. We apply such principles with regard to non-legislative rule making procedures in the EU, highlight the salience of this discussion and argue that some systematization of non-legislative rule making procedures is needed in order to implement constitutional principles in a complex and plural environment. [less ▲]

Delegated and Implementing Rulemaking: Proceduralisation and Constitutional Differentiation

in European Law Journal (2013), 19(1), 22-41

The reform of non-legislative acts introduced by Articles 290 and 291 of the Treaty on the Functioning of the European Union was guided by concerns regarding the democratic legitimacy of (lato sensu ... [more ▼]

The reform of non-legislative acts introduced by Articles 290 and 291 of the Treaty on the Functioning of the European Union was guided by concerns regarding the democratic legitimacy of (lato sensu) implementing acts of the Union. However, it has ignored the centrality of transparency in the Union's democracy and the role of participation as a complementary source of democracy. This article argues that the procedures leading to the adoption of delegated and implementing acts are subject to the treaties' provisions on transparency and participation, and should be shaped by them. It analyses the constitutional choices underlying Articles 290 and 291, with a view to assessing whether and to what extent the material, organic and functional profiles of delegated and implementing acts condition procedural rules on transparency and participation to be followed in their adoption. [less ▲]

Book Review of 'Multilevel Regulation and the EU: The Interplay between Global, European and National Normative Processes' by A. Follesdal, R. Wessel and J. Wouters (Eds.)

in European Law Journal (2009), 15

National judges, Community judges: Invitation to a Journey Through the Looking-Glass. On the need for jurisdictions to Rethink the Intersystemic Relations Beyond the Hierarchical Principles

in European Law Journal (2008), 14(6), 693-717

The historical conflict between the European Court of Justice (ECJ) and the national constitutional courts regarding primacy is a misunderstanding. In going through the looking-glass, we can understand ... [more ▼]

The historical conflict between the European Court of Justice (ECJ) and the national constitutional courts regarding primacy is a misunderstanding. In going through the looking-glass, we can understand that, on the contrary, the ECJ and the national constitutional courts adopt comparable solutions in their treatment of legal pluralism, and that they see the negation of pluralism as essential for the survival of their own legal orders. Therefore, these judges must be offered a new theoretical context to help them reconcile their role as supreme guardian with the taking into account of the pluralist context. Finally, practical proposals must be made to give judges the instruments and techniques that are capable of reflecting this plural structure. [less ▲]