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 Schwerpunkt  Union meets Convention: How to move on with accession after CJEU Opinion 2/13

Plural Constitutionalism as Theory and Method: A Reply to Critics

Daniel Halberstam

I enjoyed the exchange on my article providing a qualified constitutional defense of Opinion 2/13. I will not delve into a point-by-point rebuttal of the critics here. Instead, I shall make three quick points and end with a methodological challenge in the interest of moving forward. Weiterlesen

36 Daniel Halberstam
 Schwerpunkt  Union meets Convention: How to move on with accession after CJEU Opinion 2/13

The Autonomy Paradox

Thomas Streinz

Daniel Halberstam’s “constitutional defense” of Opinion 2/13 is certainly thought-provoking, but it ultimately fails to convince. By taking on the seemingly impossible task of defending the indefensible, Daniel allows us to see more clearly what’s really wrong with the Court’s view. However, he mischaracterizes the Court’s many critics by alleging that “they rushed to embrace Strasbourg while forgetting about the constitutional dimension of EU governance along the way”. Criticism of Opinion 2/13 is grounded in more than amnesia about the distinctive character of EU constitutionalism. Rather, the true problem is precisely the Court’s interpretation of the EU’s constitutional order: it ignores the fact that accession is a constitutional requirement and engages in cherry-picking when it comes to the relationship between EU law and international law. To move accession forward, we need to unpack what I call the “autonomy paradox.” Weiterlesen

129 Thomas Streinz
 Schwerpunkt  Union meets Convention: How to move on with accession after CJEU Opinion 2/13

It’s a stupid autonomy…

Jan Komárek

Risking further escalation of the rhetorical contest over a more catchy title, I would like to comment on Daniel Halberstam’s analysis of the ECJ’s Opinion 1/13 from a wider perspective. I would like to try to challenge the starting assumption which Daniel (and in fact also the commentators who were critical of the Opinion) makes – that the EU has a federal constitutional order, whose autonomy deserves the protection required by the ECJ. It is also because that no matter how much I find Daniel’s technical legal analysis insightful, I do not think the core issue concerns the doctrinal level. Weiterlesen

43 Jan Komárek
 Schwerpunkt  Union meets Convention: How to move on with accession after CJEU Opinion 2/13

EU Accession to the ECHR: What to Do Next

Andrew Duff

The Opinion is the latest manifestation of the historic tension in post-war Europe between federal and international law. This is important unfinished business. Nobody can be complacent about the opening up of a gap between the human rights regime of the Council of Europe and the fundamental rights regime of the European Union. A fall-out between the ECtHR at Strasbourg and the CJEU at Luxembourg is a bad thing for European rights protection. Weiterlesen

346 Andrew Duff
 Schwerpunkt  Union meets Convention: How to move on with accession after CJEU Opinion 2/13

Opinion 2/13 and the ‘elephant in the room’: A response to Daniel Halberstam

Sionaidh Douglas-Scott

Halberstam is right to highlight the CJEU’s focus on autonomy. But in so doing so we are missing something far more important. Human rights are here the elephant in the room. Accession to a human rights treaty should not be primarily about the autonomy of the EU legal order. It should be primarily about how best to protect human rights. Weiterlesen

247 Sionaidh Douglas-Scott
 Schwerpunkt  Union meets Convention: How to move on with accession after CJEU Opinion 2/13

It’s about Human Rights, Stupid!

Jörg Polakiewicz

Prof. Halberstam’s assessment of the Opinion 2/13 is based on the premise that the EU’s constitutional order is, as he put it, a “deep federal-type structure”. This federalist approach to Opinion 2/13 (and the autonomy of EU law) appears to be influenced by US constitutional experience and thinking. It neglects some important features of Europe's multi-layered human rights protection system as well as the EU's own constitutional order. Weiterlesen

344 Jörg Polakiewicz
 Schwerpunkt  Union meets Convention: How to move on with accession after CJEU Opinion 2/13

Autonomy now?! A brief response to Daniel Halberstam

Tobias Lock

I read Daniel Halberstam’s eloquent and erudite defence of Opinion 2/13 with great interest and I agree that (some of) the Court’s arguments can be rationally explained. What struck me about his piece, however, is that while it is centred on the concept of autonomy, he doesn’t seem to regard it necessary to provide us with a definition of it. In order to mount an effective defence of the Court’s position, it would have surely been a good starting point to defend the Court’s conception of autonomy as expressed in the Opinion. Weiterlesen

288 Tobias Lock
 Schwerpunkt  Union meets Convention: How to move on with accession after CJEU Opinion 2/13

A Constitutional Defense of CJEU Opinion 2/13 on EU Accession to the ECHR (and the way forward)

Daniel Halberstam

The Court of Justice of the European Union has arrived! Gone are the days of hagiography, when in the eyes of the academy the Court could do no wrong. The judicial darling, if there is one today, is Strasbourg not Luxembourg. Only hours after Opinion 2/13 struck down the Draft Agreement on EU Accession to the European Convention on Human Rights, scholars condemned the opinion as “exceptionally poor.” Critical voices mounted ever since, leading to nothing short of widespread “outrage.” I disagree with the critics. In my legal analysis and constitutional reconstruction the Court’s concerns are mostly warranted. I also identify the changes that must be – and reasonably can be – made to move accession forward. Finally, and in a twist of irony, I show that one of the Court’s greatest concerns – mutual trust – goes to the very survival of the Union and demands not an exemption, but full accession. Weiterlesen

36 Daniel Halberstam