Judicial Independence & National Judges in the Recent Case law of the Court of Justice

in European Public Law (2019), 25(4), 615636

Judicial independence did not only become more visible in the recent case law of the Court of justice but has also been analysed as a systemic parameter of the Union. This article discusses a sample of ... [more ▼]

Judicial independence did not only become more visible in the recent case law of the Court of justice but has also been analysed as a systemic parameter of the Union. This article discusses a sample of three cases, Associação Sindical dos Juízes Portugueses, Achmea, and L.M., to assess the notion of judicial independence as applying regarding the national judges in the judicial system of the Union. Judicial independence, as a notion of EU law, is primarily a constitutional requirement presumably deferent to Member States’ standards and pursuing the proper functioning of the Union’s judicial system, namely its effectiveness. However, the recent case law testifies the emergence of a common EU standard of judicial independence, which does not only apply as a minimum standard throughout the Union but also affects the national legal orders. Ultimately, the analyses of the paper point out a curious harmony regarding judicial independence between the principles of effectiveness of Union law and of effective judicial protection under that law without clarifying their articulation. [less ▲]

Information Exchange in the European Administrative Union

in European Public Law (2014), 2014(1), 65-70

Some remarks on the pending constitutional change in the Grand Duchy of Luxemburg

in European Public Law (2013), 19(3), 449-459

In the history of constitutional changes in Europe, the making of a new constitution is often linked to violent incidents like a revolution, a coup d'état or a war. That is why the change of the ... [more ▼]

In the history of constitutional changes in Europe, the making of a new constitution is often linked to violent incidents like a revolution, a coup d'état or a war. That is why the change of the constitution was mostly preceded by a change of the holder of the constituent power. The Grand Duchy of Luxembourg, however, is currently engaged in a process of constitution making in compliance with the revision procedure established by the existent document. The Constitution of the Grand Duchy, one of the oldest constitutional documents in Europe still in force, is undergoing a far-reaching revision aiming at a general overhaul.1 According to the parliamentary committee in charge, this revision shall finally give birth to a 'new' constitution, meaning that a modified and updated edition of the constitution shall be published in the national official journal (Mémorial). The revised text will then be considered as the Constitution of 2013 or, more likely, of 2014. The Constitution of 1868 is to be repealed. After the previous charters from 1841, 1848 and 1856 and the present text from 1868, it would thus become the fifth constitution of the Grand Duchy. As constitutional history also shows, this would not be the first time that Luxembourg adopts a new constitution following the formal amendment procedure foreseen by the previous document.2 Local politicians and lawyers seem to consider that the academic distinction between 'constitution making' by the will of an original pouvoir constituant and 'constitutional revision' through a parliamentary procedure prescribed by the constitution itself represents rather a gradual difference than a fundamental one. A number of good reasons convinced the Committee on Institutions and Constitutional Affairs of the Chamber of Deputies to introduce on 21 April 2009 a revision proposal aiming to modify and re-arrange the out-dated Constitution of 1868. While several initiatives for a general revision of the Constitution have been undertaken since the 1970s, none has been successful. Only fractional revisions were adopted in a century and a half. Between 1919 and 2009, no less than thirty-four amendments are listed, the last dating from 12 March 2009. Having occurred at different times and on various aspects, they have certainly undermined the coherence of the initial text. Nonetheless, the Constitution still includes a majority of provisions dating back to its origins. The main reasons put forward by the drafters of the revision proposal are: first, to modernize a terminology somewhat out-dated; second, to adapt the legal text to the political reality by re-writing the constitution and make it coincide with the 'living constitution' as reflected in the functioning of institutions, and third, to incorporate into the written constitution provisions relating to succession to the throne currently contained in a legal document of uncertain value, namely the Family Compact of the House of Nassau (Nassauischer Erbfolgeverein) of 1783. Almost four years after its launch, this amendment procedure, still far from being accomplished, is now, in February 2013, in a sufficiently advanced stage to allow some general commentaries. Given the limited format of this country report, the following remarks will focus on a brief presentation of the applicable revision procedure and a provisional scrutiny of some of the most substantial amendments under discussion. [less ▲]

The European Research Council as Case Study for Agency Design in the EU

in European Public Law (2011), (17), 173-188

Agencies have become a ubiquitous part of the administrative structure of the EU. They fulfil diverse and important roles in implementing EU policies.As diverse as the tasks of EU agencies are their forms ... [more ▼]

Agencies have become a ubiquitous part of the administrative structure of the EU. They fulfil diverse and important roles in implementing EU policies.As diverse as the tasks of EU agencies are their forms of organization. Few have been established by theTreaties themselves; most have been created on the basis of secondary legal acts. Agency design has, thus, become an important part of EU legislative activity.The future of agencies is, however, very much subject to debate.1 This article does not analyse agencies in the EU context from an abstract point of view. Instead, it studies possible structural and procedural arrangements for agencies on the basis of a real-life case study, the European Research Council (ERC),2 chosen from the area of the EU’s research policy.The ERC displays not only a rather unusual structure with creative institutional design. It also stands as an example for many controversies about independence and accountability of agencies in the EU. This short article, after introducing the ERC and before looking at the various options for agency design in the EU in general terms, looks at the options for changing the ERC’s legal status and architecture. This is used as a canvas to outline some thoughts on the role and independence of agencies in the EU. [less ▲]