Suchergebnisse

AbstractThe Union's constitutional regime for development policy has traditionally progressed alongside two parallel tracks. In addition to a general regime for all developing countries, there exists a special regime for African, Caribbean and Pacific Countries (ACP countries). The Union's general development policy originated as a flanking policy within the Common Commercial Policy. This trade-centricity was only relativised by the insertion of an express development aid competence in 1992. The Union's development cooperation competence can today be found in Article 209 of the Treaty on the Functioning of the European Union (TFEU) and allows the Union to adopt legislative acts or conclude international agreements to reduce poverty within developing countries. By contrast, the Union's special development regime has had a very different constitutional source. It stemmed from the 'colonial' association to the Union (quaits Member States) of certain dependent 'oversees countries and territories' for which the 1957 Treaty of Rome had provided a limited development competence. Once these countries gained independence in the 1960s, however, the Union had to transfer this special regime to its contractual association competence under Article 217 TFEU. The association regime for ACP countries has itself undergone a number of significant changes with the transition from the Lomé Convention(s) to the Cotonou Agreement.

AbstractIn parallel with American constitutional thought, there exists a doctrine of incorporation in the European legal order. European fundamental rights will thus not exclusively limit the European institutions. They may—in certain situations—equally apply to the public authorities of the Member States. This chapter looks at the incorporation doctrine across the three sources of European fundamental rights. With three distinct sources of fundamental rights, the constitutional principles governing the European incorporation doctrine are unsurprisingly more complex than the American incorporation doctrine. What are the similarities and dissimilarities between the European and the American incorporation doctrine? The Union presently favours selective over total incorporation. In this respect, it emulates the American constitutional order. Yet the European doctrine nonetheless differs strikingly from the classic American doctrine. For unlike the latter, the European legal order has not made incorporation dependent on the type of fundamental right at issue. The European doctrine has, by contrast, made the incorporation of Union fundamental rights into national legal orders dependent on the type of Member State action.

Is the European Union a legislative giant on clay feet? Is it true that the Union has, with some specific exceptions, no original competence to implement European law? This article analyses the structure of the Union's "executive federalism" in three steps. After a comparative constitutional section on the centralized (American) and decentralized (German) enforcement systems of federal norms, the constitutional foundations of executive power in the European Union are explored. Will Article 291 TFEU provide a reformed textual base for the (new) Union's executive powers? A third section then examines existing constitutional limits to the national (decentralized) and European (centralized) enforcement of European law. Beginning with the decentralized implementation mechanism, a first part of this section looks at the substantive, procedural and morphological limits on the national implementation of Union law. A second part of that section changes perspective as it investigates the constitutional limits on the executive powers of the Union in the form of, for example, the principle of subsidiarity. An excursus briefly analyses the phenomenon of "mixed administration" through a federal lens. And a conclusion finally argues that the Lisbon Treaty will remedy, to some extent, the lack of clear constitutional foundation of Union executive power.

The emergence of the United States of America in the eighteenth-century triggered a semantic revolution in the federal principle. Federalism became identified with a mixed structure between international and national organisation. However, when this American tradition crossed the Atlantic in the nineteenth century, Europe's obsession with indivisible sovereignty pressed the novel idea into a national format. This article analyses the European Community and European Union in light of the American and European federal tradition. It explores the analytical potential of American federal thought in examining the European Union along three dimensions: a foundational, an institutional and a functional dimension. The question of Kompetenz-Kompetenz arises. This inductive approach is contrasted with the deductive approach of European thought. Europe's "statist" tradition insists on the indivisibility of sovereignty. This leads to three constitutional denials: the European Union is said to have no constitution, nor a people (demos), nor a constitutionalism. The very existence of the European Union, often labelled sui generis, has challenged this tradition and, today, European federal thought has gradually come to acknowledge the idea of federalism beyond the State.