Suchergebnisse

AbstractThis article analyses the constitutional issues surrounding Parliament's implementation of the 2016 EU referendum result, in particular, the political and legal obligation of Parliament to give effect to the 'will of the people'. Respecting the 'will of the people' lies at the core of any democratic process of government. But the predicament that faced MPs, who overwhelmingly voted 'remain' in the referendum, was to choose between their responsibilities as elected representatives and to implement the political mandate expressed through the exercise of direct democracy. Brexit, as the Miller I judgment confirms, alters the UK constitution by removing rights which UK and EU citizens enjoyed under the EU Treaties. In giving effect to Brexit, Parliament's constitutional relationship with the Executive, which had positioned itself politically as upholding the 'will of the people', was severely tested as the Cherry/Miller II prorogation judgment illustrates. Within a context of political turmoil and minority government, the Brexit process brought into sharp focus the conflict between what has been described as a 'Whitehall versus Westminster' interpretation of the relationship between Parliament and the Executive within the UK Constitution.

Europeanisation has marginalised national parliaments and their democratic practices leading to a 'de-parliamentarisation' within the EU. The Treaty of Lisbon included substantive provisions designed to improve participation by national parliaments in EU decision-making, the most significant of which is the allocation of subsidiarity monitoring. This was intended to address concerns that national parliaments are peripheral within the EU Polity, and that EU legislation lacks legitimacy amongst its citizens. Protocols 1 and 2 of the Treaty of Lisbon promote a horizontal political dialogue between national parliaments within subsidiarity monitoring, but, experience of the last ten year indicates that this has not improved legislative legitimacy, nor adequately addressed de-parliamentarisation. This article argues that, while the Treaty of Lisbon has enhanced the privileges of national parliaments, they have not been 're-centred' as an influential collective bloc of actors within the EU's institutional framework.

Multi-level governance has increasingly been recognized as a paradigm for EU integration. However, the role of regions and regional institutions within the integration process has been incoherent, and the participation of regions in EU decision-making has been varied. This is primarily because the involvement of regions has largely depended upon the internal constitutional arrangements of the Member States and the competences given to regions through internal (national) public law. The Treaty of Lisbon, by addressing the need for improved accountability, recognizes that regions should have a formal role to play in seeking to improve both the quality and legitimacy of legislation. The focal point for this comes in the form of the Treaty allocating the task of subsidiarity monitoring to the Committee of the Regions, alongside national parliaments. This article considers the new prerogatives which the Treaty has granted to the Committee of the Regions. It looks at the extent to which these represent recognition of regional competences and whether they reposition the EU's regions within the EU polity. In particular, this article addresses the question of whether subsidiarity monitoring by the Committee of the Regions is sufficient to protect the exercise of competences by regional institutions.

The relationship between EU law and international law has, again, recently occupied the European Court of Justice with respect to the compatibility of the EU Treaty with international obligations. It will be recalled that in the Kadi judgment1 the Court examined whether adoption of a UN Resolution in the form of a Council Regulation2 which, prima facie, restricted the fundamental rights of Kadi was congruent with principles of EU law. In Kadi, the Court, adopting a constitutionalist position with regard to the protection of fundamental rights, held that protecting the applicant's fundamental rights under the Treaty was a priority which could not be diminished, even when the EU was implementing a UN Resolution into EU law. Thus, in Kadi, the Court concluded that providing clear fundamental rights safeguards through judicial review of the Regulation was a fundamental principle of EU law. To this extent, the Court was only prepared to accept compliance with internal obligations if they were harmonious with principles of fundamental rights norms, as understood through the case law of the Court.

AbstractThis article examines how recent judgments of the European Court of Justice have interpreted the concept of a service of general interest in Article 86(2) EC in the delivery of healthcare services. The article explores how and why the Court has afforded greater latitude to Member States in organizational matters by not applying competition rules. By contrast, the Court has actively promoted patient mobility and has not applied the derogation in Article 86(2) EC where it would restrict the free movement of services. Does the Court's policy of protecting individual rights undermine the ability of Member States to deliver a universal healthcare service within finite resources?

In the Commission's White Paper on European Governance1and the subsequent Laeken2Declaration, the participation of civil society in the Community method of decision-making was viewed as the primary way of engaging directly with EU citizens. The White Paper accepts that participatory democracy is created from the bottom up by 'groups of people dedicated to the disinterested search for the public interest in society'.3This statement recognises that participation goes beyond the pre-legislative lobbying process. It suggests that the representation and protection of citizens' interests requiresex postjudicial protection in circumstances where the legislative measure breaches fundamental rights or if its application infringes principles of procedural propriety. The only vehicle for such judicial protection at the Community level is paragraph 4 of Article 230 EC, which already provides recourse to individuals who are 'directly and individually concerned' by an act of the institutions. Direct actions under Article 230 EC are preferable to the indirect protection available in national courts when a preliminary reference can be made under Article 234 EC. This is because national courts cannot declare a Community measure as being invalid or provide a remedy against the Commission. Despite these deficiencies with domestic enforcement actions, the Court's judgments have been consistently of the view that the granting of locus standi under Article 230 EC should be narrowly construed and most significantly does not extend to judicial review actions by representative groups. This is in stark contrast to the practice within the domestic courts of Member States where proxy actions have, in recent years, been encouraged.