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The failure of individual and institutional remedies to ensure the effective enforcement of European Union (EU) law has increasingly focused attention on collective routes to ensuring adherance to EU policies and rights. How comprehensive, however, should collective remedies under EU law be? This introductory article - as well as the other articles of this volume - explores the feasibility of a horizontal approach to the collective enforcement of EU law. While the hope for such an approach has been bolstered by the engagement of the EU institutions, the Commission's most recent 2013 Recommendation fails to significantly advance the development of collective remedies at EU level. The article will conclude by exploring some further, non-legislative, alternatives to furthering the collective enforcement of EU law.
This article analyses how the European Union's response to the euro-crisis has altered the constitutional balance upon which its stability is based. It argues that the stability and legitimacy of any political system requires the structural incorporation of individual and political self-determination. In the context of the EU, this requirement is met through the idea of constitutional balance, with ‘substantive’, ‘institutional’ and ‘spatial’ dimensions. Analysing reforms to EU law and institutional structure in the wake of the crisis – such as the establishment of the ESM, the growing influence of the European Council and the creation of a stand-alone Fiscal Compact – it is argued that recent reforms are likely to have a lasting impact on the ability of the EU to mediate conflicting interests in all three areas. By undermining its constitutional balance, the response to the crisis is likely to dampen the long-term stability and legitimacy of the EU project.
Constitutional Dialogue between Courts and Legislatures in the European Union: Prospects and Limits
(2013)
The concept of 'constitutional dialogue' has become a focal point of US and Canadian public law scholarship. This concept sees judicial review not as a check on majority preferences but instead as part of a deliberation between the legislative and judicial branches over how constitutional commitments and general political objectives can be integrated. This article will explore the prospects and limits of developing the dialogue concept in the context of the present-day European Union (EU). The article will present a two-part argument: While the EU's political and legal diversity make the idea of a 'shared responsibility' for constitutional interpretation between judges and policy-makers normatively attractive, the existing institutional structure of the Union limits the incentives necessary for legal and political actors to constitutionally engage.
The last 10 years of EU integration has seen a “rights revolution”, at least in so far as fundamental rights are increasingly the register through which legal conflicts in the EU are articulated. But how are EU fundamental rights enforced in a legal order where enforcement relies upon the navigation of multiple institutions and levels of law? This article will seek to clarify this question, using the example of equality law to explore the various remedies available under EU law to enforce EU fundamental rights, and analysing their various strengths and weaknesses. The article will argue that while EU law has considerably enhanced the possibilities for individuals and groups to challenge breaches of fundamental rights to equality, the system of remedies provided by EU law has serious weaknesses. First, the autonomy provided by EU law for domestic orders to develop their own remedies and rules of access creates significant discrepancies in enforcing fundamental rights across the Member States. Secondly, the enforcement of EU equality law remains primarily based on individual litigation both leaving “gaps” in protection for vulnerable groups and making it difficult to address “systemic” problems of discrimination. The EU’s “rights revolution” both provides legal and political opportunities for social actors while also challenging the EU’s existing system of judicial remedies.
While much of the debate on judicial activism in the EU has focused on the degree of scrutiny that the European Courts should place on the political autonomy of the Member States, this paper will argue that the judicial activism debate carries deeply political origins. The limited mechanisms of political response on the part of the Union’s institutions to judicial decisions may drive forward controversy over the Court’s political role. In simple terms, the institutional structure of the Union creates a constitutional framework in which the possibility for institutional dialogue between the Court and legislature is inhibited. The essay will develop this argument in 3 steps. The first part (s II) will examine the imbalance in the Union between (legislative) competence and jurisdiction: a long-held observation that may limit the ability of the EU institutions to re-regulate at the EU level fields of policy-making which have been effectively de-stabilised by Court decisions. A second part (s III) will examine how the failure of the Court to properly explain its decisions inhibits the ability of legislatures and Courts to politically engage. Finally (in s IV) the paper will examine the relationship between the EU’s ‘law-politics’ imbalance and another asymmetry of integration – the relation in the Union between social and economic values. In all three cases, the institutional structure established by the EU Treaties themselves may make imbalanced political responses to legal decisions – and hence republican claims of judicial activism on the part of the European judiciary – more likely.