In light of the persisting economic crisis, momentum has been building in the European Union to embark, once again, on a path towards a more differentiated integration. The calls in favor of the so-called two-speed Europe have sounded increasingly loud and have come from diverse, but highly influential corners of European socio-political life. Against this backdrop, and with an eye to the historical experience with differentiated integration in the EU, this article examines the following: Just how plausible the emergence of a more differentiated Union actually is at this time; if plausible, what form such differentiated Union could take; and whether this development is normatively attractive or not.

On 3 February 2012, in a case brought by the Federal Republic of Germany against Italy, the ICJ decided that state immunity protects the state against compensation claims even in cases of extreme violations of human rights. With this ruling, the court established a provisional conclusion to the question of possible exceptions to state immunity in respect of jurisdictional immunity of the state and constraint measures in civil claims. This question has repeatedly arisen in recent years not only in international and European cases, but also in other national cases.

Democratically legitimized European integration calls for developments in culture and society—which arise naturally in the scope of on-going political, economic and institutional European Union (EU) integration—to be publically debated so they may be politically processed. The space where this happens is the public sphere, or, in the context of the EU, the European public sphere. The latter complements national public spheres. Successful integration among EU Member States is made possible by adhering to a common set of values at the same time as respecting the national identities of the Member States and fostering cultural diversity. By way of Union citizenship rights, individuals are able to make use of and actively promote the Europeanization of societies and cultures. Yet citizens are affected by Europeanization to differing degrees, with only a minority of citizens actively partaking in transnational exchange. In order to account for European integration democratically, the EU treaties hold provisions allowing for a close institutional interdependence of national and European democracy.

In this short paper commenting on Chein's contribution to the present and special issue of this Journal, I ask whether economic analysis of law, when understood as supporting, in particular, the state intervention in the market, needs moral foundations. This seems to be one of the claims made by Chein, and my answer is certainly “yes.” Economic analysis of law and state intervention in the market certainly need some moral ground (utilitarian, Kantian, or else). What I resist is Chein's claim that they need the complex theoretical construction of Dworkin's idea of integrity plus Taylor's idea of identity and Bankowski's idea of living lawfully.

To shape a legitimate electoral system is a tremendous challenge for any parliamentary body. It cannot evade the responsibility of enacting the requisite statutory rules since no other State organ has the authority to make determinations which are substantially of a constitutional character. How, and under what conditions, citizens choose their representatives pertains to the key issues in a democratic system. But it is a truism to state that a parliament is not a homogeneous body; it is normally composed of different groups with highly divergent interests. Groups representing large political parties tend to favor a majoritarian electoral system, following with greater or slighter variations the British model of first past the post where the highest number of ballots in a given constituency determines the winner of the seat in issue, even though the candidate may have obtained only a relative plurality. Smaller parties, on the other hand, put their preferences on proportional representation, which ensures them a share of the seats corresponding to their share of the vote. To their regret, parties supported only by a low fraction of the electorate cannot, which is self-evident, impose their preferred option, having to wait for pressure to build up in the general public to promote their concerns. Thus, parliaments are neither neutral nor objective when they make determinations in electoral matters.

The purpose of this paper is to illustrate the changing character of the European Union (“EU”) public order under the impact of security concerns. The EU public order has long been characterized by a tension between a more market-oriented, neo-liberal Union and a more socio-political Union. The former would be driven by the EU's four fundamental freedoms, whereas the latter would be achieved and safeguarded through the language and practice of fundamental rights. As other scholarly contributions to the issue have demonstrated, the relationship between fundamental freedoms and fundamental rights is anything but settled. It continues to be subject to many, sometimes potent, legal and political controversies. However, while the EU public order is still in pursuit of the right balance between economic freedoms and socio-political rights, it also has to reckon with another fundamental value: The value of security.

At least in some subject-matter domains—most notably, social and economic rights— weak-form constitutional review may have become the predominant form of constitutional review in practice. This essay describes the obvious connections between weak-form review and political constitutionalism: Weak-form review allows the courts to bring to legislatures' attention constitutional difficulties that may have been overlooked in the process of enactment. This may occur because of the burdens of inertia and coalition-building, as identified by Rosalind Dixon, or because of unanticipatable difficulties of application in individual cases, the sort of difficulties that are central to Alon Harel's account of constitutional review as justified by a right to a hearing. Once legislatures have been so notified, they can address—or deliberatively refuse to address—the difficulties the courts have identified. Political constitutionalism provides an account of how they do so. This essay then discusses some of the political conditions that must be in place for political constitutionalism to be normatively attractive, relative to judicial constitutionalism. It concludes with some speculations about the utility of weak-form review in dealing with matters at the core of first-generation rights, such as seditious speech, after describing its utility in dealing with more “modern” problems associated with first-generation rights, such as hate speech and sexually explicit expression.

The right to an effective legal remedy is a generally accepted principle of modern legal systems and is enshrined in national constitutions as well as international treaties, such as the European Convention on Human Rights and Fundamental Freedoms. On the European Union (hereinafter EU) level, the right to an effective remedy is laid down in Article 47 of the Charter of Fundamental Rights of the European Union.

In the recent Anglo-American scholarly debate, contrary to that of continental Europe, judicial review of legislation raises strong criticism for various aspects. Among these, I will examine the claim that legislators are better equipped than courts in constitutional reasoning, on the ground that the institutional settings and procedures affecting the former ensures a better protection of rights than those that characterize the judicial function. The following questions will be posed: Do legislators primarily deal with rights as such? Do they reason about rights, and in that case for which purposes? Are these purposes sufficiently similar to those affecting the judicial reasoning about rights? Why in most legal orders courts are bound to reason-giving? While answering these questions, I will outline the different meaning that consequentialist reasoning is likely to acquire, respectively, in representative assemblies and on the bench. I will then classify the kinds of juridical consequences, and of the corresponding premises, that might affect constitutional reasoning according to the different weight of judicial construction. Finally, I will attempt to demonstrate why the indeterminacy of principles on which constitutional reasoning is expected to rely should be viewed as enhancing, rather than as distorting, the insight of courts on the right at stake.

This Article focuses on the Ziebell judgment, in which the European Court of Justice rejected the analogous application of the protection against expulsion for Union citizens to Turkish citizens covered by the Association Agreement. The judgment is placed in the context of the opinion of the Advocate General, the pre-Ziebell judgments of the Court, and judgments of German courts regarding the expulsion of Turkish citizens. On the one hand, against the background of previous case-law of the Court, the judgment might be seen as a setback. On the other hand, the Court's reference to the Long-Term Residents Directive also provides for new interpretative possibilities. Next to the applicability of the directive and the advantages and disadvantages for Turkish nationals triggered by this shift, the interpretative possibilities are discussed in light of fundamental rights and the stand-still obligation anchored in Association Council Decision 1/80.

This paper examines the role and importance of the freedom to conduct a business enshrined in Article 16 of the Charter of Fundamental Rights of the European Union (CFR). With the entry into force of the Lisbon Treaty, the CFR became legally binding, gaining the same legal value as the Treaties. It will be argued here that Article 16 CFR, which recognizes the right to economic initiative, can be an important force for European integration by acting as a new engine of European social, economic, and political integration. That said, Article 16 should be read bearing its limitations in mind.

Between the relics of a nation state past and the promises of a transnational future, the normative evolution of the European Union has rightly been described as “an international legal experiment.” Europeanization, in that sense, has been construed as an experimental legal mode for the integration of national economic diversity through harmonized regulation. Even though the European Union's operating code has remained decisively economic, the normative matrix itself has transcended the historical objective of economic homogeneity. European integration therefore experienced a normative turn after the completion of the single market; the European Union progressively captured the social space of the continent, evolving into a societal experiment of normative imagination and cultural plurality, taking it beyond economic integration, market freedoms, and monetary stability.

The United Kingdom has long resisted the idea of adopting a judicially reviewable bill of rights, which historically has been considered inconsistent with a core constitutional principle of parliamentary sovereignty. When adopting the Human Rights Act (HRA), the political framers insisted on preserving Parliament's final say on the legality of legislation.

The decision to authorize judicial review, while also constraining the scope of judicial remedies by withholding a power to invalidate inconsistent legislation, has introduced serious ambiguity about the function of the HRA and also about where political legitimacy resides for resolving institutional disagreements about how rights appropriately guide or constrain legislation. The first example of ambiguity is with respect to how institutional actors understand the principal function of the HRA. For example, does rights protection occur primarily through judicial review, either by authorizing the judiciary to engage in interpretive techniques that force legislative compliance, or by identifying rights constraints that parliament is expected to address by enacting remedial measures? Or instead does rights protection occur via altered political practices: by engaging bureaucrats, the executive, and Parliament in a more conscious role of identifying how rights are implicated in proposed legislation, increasing intra-institutional deliberation about justification, and facilitating pressure to implement rights-inspired amendments? The second example of ambiguity occurs with respect to political actors' responsibilities in circumstances where courts disagree that legislation complies with protected rights, as judicially interpreted. Specifically, how does the principle of parliamentary sovereignty relate to the mission of a recently adopted bill of rights? Notwithstanding formal constraints on judicial power, can Parliament's contrary judgment be considered a compelling interpretation of rights and, if so, under what circumstances and according to what criteria?

This paper explores this ambiguity in the context of debate about disenfranchising prisoners.

The United Kingdom has long considered a bill of rights as both unnecessary and inconsistent with the constitutional principle of parliamentary sovereignty. This view of inconsistency arose from the assumption that an effective bill of rights requires a judicial remedial capacity to set aside inconsistent legislation, and thus this judicial power contradicts the idea that parliament has the final say on the legality of duly enacted legislation. Yet a political willingness to experiment with where responsibility resides for remedial action helped overcome reticence to adopt a bill of rights. The HRA came into effect in 2000 and incorporates the European Convention of Human Rights into domestic law. Yet the HRA differs significantly from conventional assumptions about how a bill of rights functions. Instead of conceiving of rights protection in a court-centric manner, as occurring through binding judicial remedies to redress rights infringements that have already occurred, the HRA instead represents a more politically-oriented bill of rights. Such a politically-oriented bill of rights embodies the optimistic ideals of facilitating proactive rights protection through more rights-oriented legislative processes and relying on political willingness to enact remedies if the judiciary subsequently disagrees that legislation is consistent with Convention rights.

The HRA represents an ambitious model for rights protection that envisages rights-based scrutiny occurring at four institutional stages, three of which are oriented around the legislative process. The first of these four stages, pre-legislative review, arises from a new ministerial reporting requirement in section 19 to alert Parliament that a legislative bill is either compatible with Convention rights or that the minister is unable to claim compatibility. This reporting obligation has precipitated regular assessments by government lawyers and relevant policy officials of whether legislative initiatives are consistent with Convention rights before these become legislative bills. The second stage, parliamentary rights review, is facilitated by the creation of a specialized parliamentary rights committee—the Joint Committee on Human Rights—to review legislation from a rights perspective, which provides Parliament regular and often critical reports on the persuasiveness of the minister's earlier claim that a bill is consistent with the Convention rights. Judicial review, the third stage, occurs as a result of a new authority for judges to consider whether legislation is consistent with Convention rights. If judges determine that legislation is inconsistent with Convention rights, judicial censure can take an interpretive form under section 3 of the HRA, by altering the scope or effects of legislation through a judicial interpretation that strives to render legislation compatible with Convention rights, or it can take a more explicit form by declaring that the legislation is not compatible with Convention rights under section 4 of the HRA. The fourth stage arises from a legislative process for implementing remedial legislation in section 10 and reflects the political framers' expectations that Parliament will regularly comply with domestic and European Court of Human Rights (ECtHR) rulings of incompatibility.

Yet this highly idealized model of rights protection reflects deep and unresolved ambiguity about the nature of parliament's responsibility to pass remedial measures. This ambiguity is a direct consequence of a political attempt to construct a rights project that emphasizes a juridical approach for interpreting liberal constitutional values and yet also relies on political willingness to enact remedies. The significance of this ambiguity is intensified by the rhetorical dissonance between the claim that a strong expectation of compliance with British and ECtHR rulings exists and the very different claim that parliamentary sovereignty protects parliament's capacity to have the final say on all judgments including those involving rights.

The seriousness of this ambiguity is particularly clear in political responses to judicial rulings that the UK's comprehensive ban on prisoners' voting is inconsistent with ECtHR rulings. The paper examines political reactions to ECtHR rulings on prisoner voting in Part One. Part Two draws on the work of Jeremy Waldron to suggest the benefit of Parliament developing processes or criteria to revisit judicially-impugned legislation in order to reassess the merits of its earlier judgment and/or the justification of political reticence to implement remedial measures. Although some might interpret this argument that Parliament should reassess the justification of legislation from a rights perspective as being in serious tension with ideas associated with political constitutionalism, the author rejects this interpretation. This perception is only valid if the argument for re-evaluation is predicated on the idea that courts alone are capable of, or have legitimacy for, judgments about rights. If one rejects a court-centric position on this issue, as does the author, and yet also takes seriously the idea that a polity's fundamental rights should be respected, it is incumbent upon Parliament to find a way to critically assess and distinguish when its dissenting judgment is justified as a reasonable response to legitimate rights-based concerns, from when Parliament's dissenting opinion can only be explained as an assertion of political and constitutional power.

It is now almost two decades since the German Constitutional Court proclaimed in Maastricht its capacity to review whether the Union institutions respect the limits of their conferred competences and to pronounce inapplicable at national level all legal instruments adopted by them in transgression of these boundaries. This ultra vires doctrine inspired the case law of several other constitutional courts, which announced their intention to operate in exceptional circumstances as an ultima ratio against the violation by the Union institutions of the principle of conferral. The German Constitutional Court itself emphatically reaffirmed on various occasions its role as the ultimate protector of constitutionality against the ultra vires introduction and interpretation of Union law, most prominently in its eminent Lisbon ruling. Until recently though, there was no actual precedent of a national court proclaiming a Union act as ultra vires. Even when a constitutional court reviewed the contested act on ultra vires grounds, it eventually concluded that it complied with the principle of conferred powers.

Until recently, throughout the European Union's integration process, public order and internal security matters have been marked by a concern and respect for the national sovereignty of the EU Member States. Member States enjoyed their respective regulatory autonomy, as public order and internal security matters were dealt with at the EU level merely on the basis of the internal market logic. This is particularly evident in Articles 45(3) and 52 of the Treaty on the Functioning of the European Union (TFEU). These Articles establish the exceptions of public policy and public security as grounds that may be invoked by the Member States to limit the fundamental right to free movement. These grounds have been primarily viewed as deriving from impediments to the creation of the common market.