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1. Proportionality and Karlsruhe’s Ultra Vires Verdict: Ways Out of Constitutional Pluralism?

Author:
Martin Hopner
Publication Date:
01-2021
Content Type:
Working Paper
Institution:
Max Planck Institute for the Study of Societies
Abstract:
In May 2020, for the first time in its history, the Federal Constitutional Court (FCC) of Germany declared Union acts as being ultra vires. According to the FCC, the European Central Bank (ECB) and the Court of Justice of the European Union (CJEU) had acted beyond their mandates because they did not apply strong proportionality standards to the ECB’s Public Sector Purchase Programme (PSPP). The resulting stalemate within constitutional pluralism has revived the discussion about the possible introduction of an Appeal Court with the “final say” over constitutional conflict. As the analysis of the PSPP conflict shows, such a judicial authority would reach its limits the more we move from the surface to the core of the struggles between European and national constitutional law. The different readings of proportionality are difficult to bridge, and the mutually exclusive claims about the nature of the supremacy of European law are not accessible to compromise at all. We should therefore not expect too much from an Appeal Court, if it were introduced.
Topic:
Regional Cooperation, Law, European Union, Economic Cooperation, European Monetary Union, and Banking
Political Geography:
Europe

2. Illegal Markets: Boundaries and Interfaces between Legality and Illegality.

Author:
Renate Mayntz
Publication Date:
03-2016
Content Type:
Working Paper
Institution:
Max Planck Institute for the Study of Societies
Abstract:
In sociology generally, the infringement of legal norms is not treated as a special kind of norm violation, the sociology of law being an obvious exception. The study of illegal markets therefore faces the challenge of distinguishing illegality from legality, and relating both to legitimacy. There is no conceptual ambiguity about the distinction between legal and illegal if legality is formally defined. In practice, (formal) legality and (social) legitimacy can diverge: there is both legitimate illegal action and illegitimate legal action. Illegal markets are a special kind of illegal social system, constituted by market transactions. Illegal markets are empirically related to organized crime, mafia and even terrorist organizations, and they interact both with legal markets and the forces of state order. Where legal and illegal action systems are not separated by clear social boundaries, they are connected by what has come to be called “interfaces”: actors moving between a legal and an illegal world, actions that are illegal but perceived as legitimate or the other way around, and a gray zone of actions that are neither clearly legal nor illegal, and neither clearly legitimate nor illegitimate. Interfaces facilitate interaction between legal and illegal action systems, but they are also sources of tension and can lead to institutional change.
Topic:
Crime, Markets, Sociology, and Law
Political Geography:
Global Focus

3. Empowered or Disempowered? The Role of National Parliaments during the Reform of European Economic Governance.

Author:
Aleksandra Maatsch
Publication Date:
01-2016
Content Type:
Working Paper
Institution:
Max Planck Institute for the Study of Societies
Abstract:
This paper investigates how the intergovernmental reform process of European economic governance affected national parliaments’ oversight of this policy area. Which parliaments became disempowered and which managed to secure their formal powers – and why? The dependent variable of the study is operationalized as the presence or absence of “emergency legislation” allowing governments to accelerate the legislative process and minimize the risk of a default by constraining national parliaments’ powers. The paper examines how national parliaments in all eurozone states were involved in approving the following measures: the EFSF (establishment and increase of budgetary capacity), the ESM, and the Fiscal Compact. The findings demonstrate that whereas northern European parliaments’ powers were secured (or in some cases even fostered), southern European parliaments were disempowered due to the following factors: (i) domestic constitutional set-up permitting emergency legislation, (ii) national supreme or constitutional courts’ consent to extensive application of emergency legislation, and (iii) international economic and political pressure on governments to prevent default of the legislative process. Due to significant power asymmetries, national parliaments remained de jure but not de facto equal in the exercise of their control powers at the EU level. As a consequence, both the disempowerment of particular parliaments and the asymmetry of powers among them has had a negative effect on the legitimacy of European economic governance.
Topic:
Politics, Governance, Law, and Reform
Political Geography:
Europe

4. Warum betreibt der Europäische Gerichtshof Rechtsfortbildung? Die Politisierungshypothese

Author:
Martin Höpner
Publication Date:
02-2010
Content Type:
Working Paper
Institution:
Max Planck Institute for the Study of Societies
Abstract:
Scholars from law, political science and sociology agree that the European Court of Justice (ECJ) interprets European law extensively and that the Court has become an “engine of integration” that, de facto, conducts integration policy. On the basis of ten landmark ECJ decisions, this paper discusses whether the politicization hypothesis can help to explain this development. The politicization hypothesis posits that ECJ judges make their decisions based on the political interests of either the countries they come from or the parties they sympathize with. The party-based variant of the hypothesis does not seem to have any explanatory power. Similarly, the country-based variant delivers no systematic explanation that could supersede alternative explanations. However, the country-based variant fits quite well with some of the cases observed. I conclude that while situationally motivated acts of politicization may actually occur at the ECJ, which does not imply that the judicial code is being totally replaced by political considerations.
Topic:
International Law and Law
Political Geography:
Europe