To this day the founding treaties of the European Union contain no legally binding bill of rights in the traditional sense protecting religion, privacy, family life, the freedom of expression, and so forth. As we all know, while the European Court of Justice initially rejected appeals relying on fundamental rights as found in national constitutions, the Court changed its position under pressure of German courts.

The difference

On 13 December 2007, after a remarkable acceleration of the process under the German and Portuguese presidencies, representatives of the member states put pen to paper and signed the Treaty of Lisbon. Much of the ensuing debate, both in legal circles and among the general public, has centred on its abandonment of the ‘constitutional concept’.

‘The Law of Laws’ – Overcoming Pluralism

Editorials in this journal are meant not to comment on acts or events, even if these take the form of judicial rulings or legislative acts. They are meant to point at the events' potential for constitutional scholarship; to indicate and propose new lines of research. The Kadi judgments of the Court of Justice's two instances, discussed in this issue by Stefan Griller, offer such an occasion. They point at the problem of relationships between legal orders. Can these best be understood under the now familiar palliative terms of ‘dialogue’ and ‘accommodation’? There is both reason and reward in looking for a keener articulation of the relationships. That is the contention of this editorial.

Second pillar v. first pillar – From Union to Community powers and vice versa – Court's jurisdiction under different headings – Jurisdiction after Lisbon – Choice of legal bases in cross-pillar situations – Dual competence? – Different combinations

Institutional shortcomings of the Third Pillar: efficiency, effectiveness, complexity, legitimacy – Genesis of the provisions of the Treaty of Lisbon – Communitarisation of the Third Pillar – Some special institutional arrangements – Quid pro quos: stricter delimitation of the Union competencies and extension of the ‘opt out/opt in’ regimes – (New) foundations for Europol, Eurojust and the European Union Prosecutor's Office

Rulings in the cases of OMPI, Sison and Segi – Violation of the right to a fair hearing, the duty to give reasons, and the right to judicial protection – Jurisdiction to review lists of terrorist suspects – Extension of Article 35 TEU – Preliminary rulings on common positions – Improvements of the listing procedure – New legal bases for restrictive measures under the Treaty of Lisbon – Recommendations how to reform the autonomous EU listing procedure further

Constitutional protection of social rights – Differences between European and American legal cultures – National solidarity and market relationships – New Deal and the creation of the American Welfare State – Functions of the American State – The reflection of profound political, moral and societal choices – The concept of Sozialstaat – Positive obligations and negative freedoms – European Social Model – Social services and competition rules – The concept of solidarity and the deregulatory effect of EU law – EU citizenship – Locating of social rights in market integration

The Editorial Board has discussed whether it is appropriate to give attention to the Treaty of Lisbon, in view of the uncertainty of its entry into force. We understand that some legal journals are refraining from discussing it until it has become law or at least until the Irish have cleared the way. (…) we hereby present three contributions about that issue:

– Europe's New Realism: The Treaty of Lisbon

Hans-Jürgen Papier

– National Parliaments and the Principle of Subsidiarity – Legal Options and Practical Limits

Jean-Victor Louis

– National parliaments and subidiarity: An outsider's view

George A. Bermann

Provisional or interim measures before the European Court of Human Rights – Historic judgment in the case of Olaechea Cahuas v. Spain – The non-compliance by a State with an interim measure leads to a violation of Article 34 ECHR, irrespective of the subsequent finding of a violation of other material provisions of the ECHR by the Court – Remaining (loopholes for) recalcitrant states – Lack of reasoning of interim measures – Lack of clarity as to applicants' unwillingness to abide by an interim measure and currently untenable, extremely narrow scope ratione materiae of situations in which interim measures are indicated by the Court – Codification of the institute of provisional measures by including it as a separate provision into the European Convention through an additional protocol.

Italian veto in the EU Council reversed by Berlusconi – Italian Parliament: lack of trust in other European Union member states – Italian implementing Act: in between the Framework Decision and the Italian legal order – Case-law of the Corte di Cassazione: interpretations in conformity with the Framework Decision and with the Italian constitutional order – Some reflections on consistent interpretation, the relationship between the legislature and the judiciary, and two very recent decisions of the Corte Costituzionale

Institutional reforms – The principle of democracy: the European Parliament and the national parliaments – Bypassing unpleasant national debates by taking the European route – Reinforcement of protection of the subsidiarity principle: most valuable reform – Doubts on the effectiveness – Crucial weakness: creeping transfers of competences still possible

Directly elected, but in constitutional terms not the central authority of the Romanian political system – A ‘trailblazer’ role in parliamentary elections – Political neutrality constitutionally required, but hard to realise in practice – Comparison with the French Presidency – Limited powers making the President in theory ‘a colossus with clay feet’ – Ambivalent relationships with Parliament and Government – Gap between the constitutional and the real powers on account of ‘active’ Presidents – A hard-to-qualify political system

Winner: national parliaments or European Parliament? – Differences between Lisbon Treaty and Constitutional Treaty – Latent rivalry – Lisbon innovation – National parliaments now actors in the Union? – Early warning mechanism as solution of compromise – Dual system of the two protocols: yellow and orange cards – Review – Compliance – Interparliamentary co-operation – Complexity of COSAC's involvement – Link between proportionality and subsidiarity – Conception of representative democracy – Position of the Court of Justice

Crisis of '65–'66, Europe's first constitutional crisis – transition to majority – Hallstein's convictions and comportment – De Gaulle's Europe of States – Commission agricultural package – Debate in the Council 28–30 June 1965 – Hallstein overplays his hand – De Gaulle seeks out a confrontation with the Five – Founding treaty not to be changed – De Gaulle faces farmers – Crisis ends in a draw – Interpretations of outcome – Europe stronger for it – Consecration of founding pact – Disdain for the compromise – Interest, time, authority

Doubts about the traditional, positivistic interpretation of Montesquieu's ‘bouche de la loi’-text – Reading Montesquieu in his historical context – England and France: judge made law and parlementaire ideology – Natural law context – Lex animata, lex loquens: King versus judge – The Ciceronian and English background of the ‘bouche de la loi’ – The Fronde and les Mazarinades – George Buchanan, Sir Edward Coke and Calvin's Case

Comparative perspective – Guardians of subsidiarity in United States? Not senators, not state legislators – Contrast with EU – EU parliaments do double duty – COSAC – Re-entry of federal courts on the scene – In EU: possible lessening of pressure on European Court – Insufficient time

The contribution of subnational constitutions to the development of constitutional law – Subnational recognition of a diversity of fundamental rights as symbol of constitutional autonomy – Identical, less protective and more protective subnational rights – Diversity in sources, uniformity in application – Positive rights and the provision of public goods – federal courts and state courts: federal chemistry and constitutional laboratories

Belgian Constitutional Court beats all in referrals to EU Court – How come? – Origin and evolution of Belgian federalism – Permanent reform – Modest origins of present constitutional court – Use of Belgian and EC law to widen its channels – Identification of Belgian constitutional rules with EC rules – Statutory extension of Court's powers – Use of techniques in referral of Advocaten voor de Wereld – Translation of national constitutional issue into a European one – EC law-driven constitutional evolution in Belgium – Eventual undermining of Belgian constitutional principles

Listening carefully, one might have heard the sigh of relief breathed in Brussels and other EU capitals on 3 May 2007, when the Court of Justice of the European Communities (ECJ or Court) eventually delivered its first judgment on the European arrest warrant (EAW), giving the green light to this flagship instrument of EU judicial co-operation in criminal matters. However, what came as a relief for executive-branch officials, quite likely disappointed some of Europe's judges and legislators, as well as many academics and independent observers. For them, it must have seemed as if a long, tension-filled story had come to a bitter end.

Czech Lustration Acts: basic features – Among the most far-reaching in the postcommunist countries in Europe – Challenges for the rule of law – 2001: Czech Constitutional Court upholds their validity – Case-law of the European Court of Human Rights – ‘Transition-to-democracy’ circumstances that justified their adoption have ceased to exist