In this paper, we review the changes the DTC will bring about in the institutional framework of the European Union, focusing mainly, though not exclusively, on the most controversial issues, which were only resolved by the IGC at its final meeting in June 2004. Our aim is to identify and explain those changes, and to evaluate them in the light of the objectives of the Laeken Declaration of December 2001. Under the heading, "More democracy, transparency and efficiency in the European Union", three main questions were put by the authors of the Declaration: how can the legitimacy and transparency of the Union's institutions be enhanced; what should be the role of national parliaments; and how can the efficiency of decision-making, and the workings of the institutions in a Union of some 30 Member States, be improved? We offer a view as to whether the DTC provides satisfactory answers to those questions. Two other special concerns of ours are the accessibility of the text to those citizens of the Union willing to make an effort to understand it, and whether the integrity of the institutional framework has been preserved. We deal successively with changes affecting the European Parliament and national Parliaments, the European Council and its President, the Council of Ministers (as it is now to be called), the new office of Union Minister for Foreign Affairs, the Commission and the European Court of Justice. In our conclusion, we attempt an overall assessment of the institutional provisions under the new dispensation which the DTC will usher in, assuming (which we expect) that the Treaty is ratified by a sufficient number of Member States to ensure that it comes into force. To us, the provisions paint a mixed picture, with elements that may be seen as good, bad and indifferent, in the light of the criteria identified in our introduction - though with the positive having a very distinct edge over the negative.
[Show abstract][Hide abstract] ABSTRACT: Despite important differences that make deeper political integration comprising all members of the European Union unlikely in the near term, it is likely that a smaller group of EU members will continue towards deeper integration. While acknowledging that questions of constitutional legitimacy must be confronted and resolved, this paper by an American professor of constitutional law and comparative government suggests that European integrationists may find the federalist principles of James Madison, regarded as the father of the United States Constitution, valuable both for deeper integration and wider expansion. It argues that a Madisonian federal model for Europe could prove acceptable both to many euro-federalists and euro-sceptics alike, thus advancing the cause of European integration.
[Show abstract][Hide abstract] ABSTRACT: This paper will appear in Genèse et Destinée de la Constitution Européenne Commentaire du traité établissant une Constitution pour l’Europe à la lumière des travaux préparatoires et perspectives d’ avenir edited by Giuliano Amato, Hervé Bribosia and Bruno De Witte. It seeks to assess, on a selective basis, the provisions in the Constitutional Treaty which relate to the Union’s external action. In doing so it considers issues of consistency, competence, the partial integration of the pillars and remaining questions concerning the legal nature of the EU’s Common Foreign and Security Policy, the Common Security and Defence Policy, the procedures for concluding international agreements and the common commercial policy. Institutional aspects of external action, and in particular the creation of the Minister of Foreign Affairs, are considered elsewhere in the volume and are therefore not covered here. Consideration is also given to the extent to which it would be possible, and/or desirable, to incorporate the changes made by the Constitutional Treaty into a revised text or an alternative Treaty.
[Show abstract][Hide abstract] ABSTRACT: This article provides a legal analysis of some of the key issues that arise in examining the system for allocating emissions allowances under the EU's emissions trading system directive (EU ETS). There is a strong series of arguments in support of the view that the free allocation of allowances under the various national allocation plans (NAPs) involves an element of State aid, which has neither been formally notified to, nor cleared by, the Commission under the EC Treaty. Even if it is found properly to have been notified, there are serious doubts as to whether the extent of aid granted satisfies the proportionality principle. As a result, the operation of the EU ETS may be subject to some legal uncertainty with regard to possible legal challenges to the current allocation of allowances. Going forward, proposals to amend the operation of the EU ETS must take into account similar State aid considerations (particularly proportionality) and the experience gained from the working of the EU ETS in phase I. The structural outline of a possible legislative package has been suggested, which could achieve the safeguarding of commercial and legal certainty under the current allocation regime, while at the same time providing a basis for amendment of the allocation mechanism under the EU ETS for phase II and beyond.
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