Constitutional Asymmetry Research Articles

2.K. Round table: Everything you always wanted to know about (COVID-19 and) EU-health policy

ObjectiveThere is no European Union (EU) health system but there is an EU health policy and this health policy is rapidly changing due to the COVID-19 responses of the EU and Member States. The aim of this panel discussion is to analyze and put into context the rapid evolvement of EU health policy during the pandemic. This panel discussion will therefore focus on 1) EU public health policy 2) EU action for health 3) the EU Market shaping health 4) the fiscal governance 5) the institutions, processes and powers.BackgroundEU health policy has often been overlooked and was never on the political agenda. COVID-19 and the pandemic response, however, changed this dramatically. EU-health policy has become centre stage followed by bold investments and new regulatory initiatives. Obvious examples are the EU4Heatlth programme, the Recovery and Resilience fund, the new agency HERA, the new remit for the European Medicines Agency and the European Center for Disease Control. There are also new European Commission mechanisms with regards to the purchase of personal protective equipment, supplies, medicines including vaccines and medical technologies. But will the new EU health policy strengthen health systems of Member States or just focus on stronger emergency responses? Will the constitutional asymmetry between health and internal market be addressed? Will EU-health policy remain after the crisis a centre-piece of European Integration? This panel is based on the COVID-19 update of the EU-health policy handbook ‘Everything you always wanted to know about European Union health policies but were afraid to ask'InteractivityThere will be a high level of interactivity. After an introductory presentation, attendees can use the chat-box to choose specific topics from the aforementioned five themes. These topics will be presented in a table. The chair will then pass the questions and topics to the panelists.Speakers/Panelists Sarah Rozenblum University of Michigan, Ann Arbor, USA Holly Jarman University of Michigan, Ann Arbor, USA Nick Fahy University of Oxford, Oxford, UK Anniek de Ruijter University of Amsterdam, Amsterdam, Netherlands Eleanore Brooks University of Edinburgh, Edinburgh, UK Key messages The European Health Union will be one of the most important constitutional and policy outcomes of the pandemic.It is essential that the European Health Union is not only strengthening emergency planning and response but also accessibility, equity and resilience of health systems.

The EU Response to COVID-19: From Reactive Policies to Strategic Decision-Making.

The EU Response to COVID-19: From Reactive Policies to Strategic Decision-Making.

Multinationalism, Constitutional Asymmetry and COVID: UK Responses to the Pandemic

This article explores how the asymmetric institutionalization of the United Kingdom’s multinationality interacted with the COVID-19 pandemic. The UK’s political elite has traditionally accepted the country’s multinational character, but democratic institutionalization of it occurred relatively recently and in a remarkably asymmetric manner. Only the UK’s minority nations possess devolved governments, while the largest nation, England, is governed directly from the center. This framework has consequences for the pandemic response. It has clarified the relevance of devolved legislatures, but also highlights continued resistance of the UK’s governing elite to acknowledge the multi-level character of the state.

Varieties of Constitutionalism in the European Union

AbstractThe underlying assumption of constitutional pluralism, one of the dominant theories of EU legal scholarship, is a fundamental constitutional homogeneity amongst the EU Member States allowing for harmonious co‐existence and ‘constitutional tolerance’. This article challenges this assumption by demonstrating that the EU is characterised by a fundamental constitutional heterogeneity. It argues that the Member States are influenced by at least three different ‘varieties of constitutionalism’: ‘post‐fascist constitutionalism’, ‘evolutionary constitutionalism’ and ‘post‐communist constitutionalism’. The article shows that the type of constitutionalism dominant in a Member State influences its conception of the nature of the EU and its legal and political relationship to the project of European integration. The EU is therefore characterised by a fundamental constitutional asymmetry. The rise of authoritarianism in Poland and Hungary, while extreme, should thus not be treated as an exception to an otherwise constitutionally homogenous Union.

The ‘Holding Together’ Federation: Is India a Case of Asymmetrical Federalism?

Numerous constitutional law studies have emphasized on the concept of constitutional asymmetry in its structure. This article focuses on constitutional asymmetry in the Indian federal structure. The special status of Kashmir and other provisions extended to north-eastern states are generally assumed to reflect the asymmetrical nature of Indian polity. However, this paper argues that though the federal structure portrays characteristics of an asymmetric federalism, the concept is not essential to the core values or the identity of the Indian polity. As such, this article argues that the asymmetrical practices are not the essential to hold India together and may be considered to be an exception to the federal structure of the country.

Evidence and Power in EU Governance of Health Promotion: Discursive Obstacles to a “Health in All Policies” Approach

AbstractThis article explores the relation between the meaning of what constitutes ‘evidence’ in the European Commission (EC) and the Health in All Policies (HiAP) concept. Since the 2006 Finnish EU presidency, HiAP is regularly referred to by the Commission, but has not yet been implemented as an overarching political vision. While there is a growing literature on technical implementation of HiAP, little work has delved into the political obstacles to HiAP. This article explores three ways in which the dominant meaning of ‘evidence’ in the EC reinforces neoliberal institutional characteristics in a way that undermines HiAP: The problematization of health reinforces constitutional asymmetry; the definition of ‘EU added value’ hampers positive integration; and the politicization of evidence strengthens the Better Regulation meta‐regulatory agenda. The article suggests that the meaning of evidence in the EC reinforces neoliberal rationality present at institutional level, and calls for more dialogue across public health ontologies.

While We Are Waiting for the Superbug: Constitutional Asymmetry and EU Governmental Policies to Combat Antimicrobial Resistance

AbstractThis article analyses how constitutional asymmetry in EU health policy affects EU‐governmental initiatives to combat antimicrobial resistance (AMR). AMR has been viewed as one of the biggest threats to public health that will arise during the next two to three decades, both within the EU and globally. During the last decade the EU has taken a number of initiatives to combat AMR. The article finds that constitutional asymmetry in health policy has a major influence on how EU‐AMR policies are developed and implemented. Policies relating to promotion initiatives (like selling pharmaceuticals in the EU) are implemented through hard law types of governance (directives and regulations), while policies more directly aiming at reducing the consumption of antimicrobials are implemented through soft law initiatives (open methods of coordination).

Managing Ethno-National Diversity in Cyprus: Asymmetrical Federalism

AbstractThis article explains a normative political theory of asymmetrical federalism as it relates to the accommodation of national minorities within multinational states, using Cyprus as a case study. Many normative prescriptions emerging from traditional liberal and federal political theories and models rest on monist assumptions; therefore, there is a need to highlight the cultural and national limits of those theories and models in order to attain a democratic system in Cyprus that respects and promotes its bicommunal structure. It is suggested that multinational federalism in Cyprus necessitates constitutional asymmetry, which is likely to provide a basis for political accommodation. The article also demonstrates the necessity of multinational federalism to accommodate common and distinct identities by promoting a fuller understanding of the concept of “federal togetherness” and “federal separateness.” Such an understanding would better enable asymmetrical federalism to properly and feasibly adjust and regulate federal institutions in Cyprus.

Unconstitutional supranational arrangements for patent law: leaving out the elected legislators and the people’s participatory rights

ABSTRACTSubstantive economic law in the context of patents creates industrial property rights and monopolies in almost all fields of technology, affecting considerably the economic and social well-being of the state and its people. The mass nationalisation of the international patents of the European Patent Office (EPO) has long raised serious questions about democratic control, in view of the reality that most of its patents are taken by large companies and corporations from a small number of states, mostly from outside the EU. The EU has recently expanded this system by creating a federal (unitary) patent framework consisting of the EPO and a new international court, the Unified Patent Court (UPC), that abolishes the already limited national control. But how can national control ever be totally abolished, especially in such an important social–economic context? And, can the EU exercise effective democratic control of the federal system that it has created? The observed constitutional asymmetries of a federal/unitary patent system that is created in the absence of a federation and is based on two non-EU bodies (EPO, UPC) no longer guarantee the democratic participatory rights of the people for whose benefit economic rules and property rights are justified, regulated and applied.

La asimetría, que no los hechos diferenciales, como nota distintiva del Estado autonómico

Resumen:La categorización del Estado autonómico se ha desenvuelto desde su adscripciónal Estado regional en sus inicios, a su consideración como uno de los rostros del federalismo en los últimos años. En cualquier caso, una de las características que ha sido subrayada reiteradamente como nota distintiva del mismo, es el principio de emulación. De acuerdo con el cual, la voluntad de igualación de los distintos territorios más el potencial técnico del principio dispositivo, daría como resultado un modelo de organización territorial caracterizado por la homogeneidad. En estas páginas se pretende demostrar que, por el contrario, la Constitución y la evolución del Estado autonómico demuestran que la verdadera nota distintiva del mismo es la asimetría. La asimetría entendida como la voluntad de singularización constitucional de algunos territorios y por la respuesta que esa voluntad ha tenido a lo largo del tiempo. Si bien hubo un tiempo en el que la fuerza del principio de emulación dio como resultado un Estado parcialmente simétrico, la posterior evolución demostró las profundas raíces de la asimetría como principio ideológico del modelo. Haber obviado esta dimensión del Estado autonómico se encuentra entre las razones de su fracaso como proyecto de integración.Abstract:The definition of the Spanish State of Autonomies has been changed over the past decades. While the State of Autonomies has been classified in its beginnings as a regional state, in recent years the model developed features similar to a federal country. Notwithstanding, one of the characteristics that has been frequently underlined as a distinguishing feature of the State of Autonomies is the principle of emulation. Following this principle, the trend to equalize the different territories, in addition to the potential of the «principio dispositivo», according to which all powers that have not been reserved to the central government could be assumed by the Autonomous Communities, would lead to a model of territorial organization characterized by homogeneity. In this text we will demonstrate that, on the contrary, the Constitution and the evolution of the State of Autonomies show that the distinctive feature of the State of Autonomies has been asymmetry. In this context, we understand asymmetry as the desire for a constitutionally guaranteed distinction of some territories and the reactions this constitutional asymmetry had over time. Although during a certain period the strength of the emulation principle lead to apartially symmetrical state, the successive evolution of the State of Autonomiesdemonstrated the deep roots of asymmetry as the ideological principle of the model. The fact that this feature has been underestimated can be considered as one of the reasons for the failure of the State of Autonomies as an integration project. Summary1. The debate on symmetry as the defining element of the State of Autonomies. 2. The constitutional basis of the debate. a. Political asymmetries. b. Recognised differences (hechos diferenciales). 3. Frustration, rebellion and emulation. 4. Nationality is everything and the need to go back to the origins. a. The Barcelona Declaration and its reflections on the Statute. b. The statutes of autonomy of the second-generation and the appearance of emulation. 5. A balance of what the future looks like

Constitutional asymmetry vs. sovereignty and self-determination

Autonomy claims are a major aspect of federalism studies. Regardless of the importance of this topic, it has remained influenced to large extent by traditional studies in federalism. Thus, while emphasizing autonomy claims, most traditional federal theory remains rooted in two opposing concepts: the concept of sovereignty and the closely related right to self-determination. This paper challenges the traditional perspective by examining the question of sovereignty with reference to a dynamic notion of federalism. It addresses the notion of self-determination through an alternative approach involving the assessment of constitutional asymmetries, with the debate about constitutional asymmetries reviewed relative to multi-tiered systems and multinationalism. In relation to the major concepts examined, the paper demonstrates that the use of constitutional asymmetries in contemporary federal theory provides a more flexible approach to autonomy claims.

Mobilising social rights in EU economic governance: a pragmatic challenge to neoliberal Europe

A ‘constitutional asymmetry’ exists at the heart of contemporary EU socio-economic governance, privileging the economic at the expense of the social. Prevailing academic responses suggest, on the one hand, the need for radical constitutional reforms aimed at redressing this asymmetry and, on the other hand, piecemeal reforms reliant on current soft and non-binding modes of governance for the championing of social concerns. Offering a pragmatic middle way between these positions, we identify the potential within the extant constitutional settlement to pursue a rebalancing in favour of the social. In particular, we highlight the Commission’s pre-existing legal and rhetorical commitment to social rights, arguing that it might draw on the standards established by the Council of Europe’s European Committee of Social Rights and incorporate these into its economic governance mechanism, the European Semester. Such a step would usefully repoliticise socio-economic governance in the short term and promote radical reform in the long term.

REPRESENTATION WITHOUT TAXATION, TAXATION WITHOUT CONSENT: THE LEGACY OF SPANISH COLONIALISM IN AMERICA

ABSTRACTThe essay examines Spain’s colonial legacy in the long-run development of Spanish America. It surveys the fiscal and constitutional outcomes of independence and assesses the relative burden imposed by colonialism. Constitutional asymmetries between revenue collecting and spending agents constrainedde factogovernments’ power to tax. Inherent disparities embedded in the colonial fiscal system worsened with vaguely defined representation for subjects and territories andvexedtheir aggregation into a modern representative polity. Governments with limited fiscal capacity failed to deliver public goods and to distribute the costs and benefits of independence equitably. Growing indirect taxes, debt and money creation allowed them to transfer the fiscal burden to other constituents or future generations. Taxpayers became aware of the asymmetry between private contributions and public goods and hence favoured a low but regressive taxation. Comparisons with trajectories in the metropolis and the United States are offered to qualify this legacy.

Compelled Commercial Speech

This paper is the text of the fourth annual C. Edwin Baker Lecture for Liberty, Equality, and Democracy at the West Virginia University College of Law, which will be delivered in November and subsequently published in the West Virginia Law Review. The article explores the burgeoning doctrine of “compelled commercial speech,” with special emphasis on recent decisions of the United States Court of Appeals for District of Columbia Circuit, including American Meat Institute (“AMI”) v. Department of Agriculture, an en banc decision upholding the mandated labeling of meat products; National Association of Manufacturers (“NAM”) v. SEC, which struck down features of SEC mandated reports about the origins of conflict minerals; and R.J. Reynolds Tobacco Co. v. FDA, which invalidated FDA mandated graphic cigarette warnings. Commercial speech doctrine was established in order to protect what Central Hudson called the “informational function” of commercial communications. The object of the doctrine was explicitly to protect the capacity of an audience to receive information rather than to safeguard the autonomy of a commercial speaker. The informational function implies a constitutional asymmetry between restrictions on commercial speech and compelled disclosures of commercial speech. The former impair the distribution of information; the latter enhance it. The tendency of many judges to adjudicate compelled commercial speech cases in light of decisions like West Virginia State Board of Education v. Barnette, which defend the autonomy of speakers within public discourse, is deeply misplaced. The article defends the proposition that First Amendment jurisprudence is plural, not unitary. The Court embraced the plurality of First Amendment jurisprudence in Zauderer v. Office of Disciplinary Counsel, which holds that factual commercial speech can be compelled if it is “reasonably related” to an appropriate government purpose. First Amendment rights of commercial speakers in such circumstances are deemed to be “minimal.” The article discusses the relationship between the Zauderer test for compelled commercial speech and the Central Hudson test for restrictions on commercial speech, which is the object of much unfocused discussion in AMI. Compelled commercial speech, like government speech, is an effort to affect the content of public opinion. Both compelled commercial speech and government speech raise questions about how a democratic government may constitutionally influence the shape of a public opinion to which it is in theory responsive. The article seeks to explain certain doctrinal restrictions on compelled commercial speech in light of constitutional concerns that arise when government seeks to affect the content of public opinion. It offers an analysis of why government efforts to inform public opinion through the required disclosure of facts is constitutionally distinct from government efforts to shape public opinion through the required disclosure of opinions. The article explores how compelled disclosures of opinion may constitutionally be distinguished from compelled disclosures of fact, a distinction that lies at the heart of decisions like NAM and R.J. Reynolds. The article also discusses the kinds of state interests that may justify compelled commercial speech, which is the subject of great dispute in AMI.

Is Flexible Integration Harming the Prospect of a Common Acquis?

In the post-Lisbon era and especially since the outburst of the financial and European sovereign debt crisis, the EU has been changing significantly, to the extent that the meaning and the process of integration are being affected. While constitutional asymmetry is a longstanding feature of the EU polity, the real challenge today is the expanding scope and fragmented character of newly established forms of flexibility, and how they are being used politically. The flexible configuration of integration reinforces a trend toward fragmented integration. Flexibility within the EU could become an end in itself, a device to serve a wide range of strategic visions and preferences in sectoral politics.

Empathy, Embodiment, and the Unity of Expression

This paper presents an account of empathy as the form of experience directed at embodied unities of expressive movement. After outlining the key differences between simulation theory and the phenomenological approach to empathy, the paper argues that while the phenomenological approach is closer to respecting a necessary constitutional asymmetry between first-personal and second-personal senses of embodiment, it still presupposes a general concept of embodiment that ends up being problematic. A different account is proposed that is neutral on the explanatory role of the first-person sense of embodiment, which leads to an emphasis on the transformative nature of empathy and a broadening of the scope of possible targets of empathic awareness.

Is Constitutional Symmetry Enough? Social Models and Market Integration in the US and Europe

By comparing US and European efforts at market integration, this article questions the commonly held notion that Europe's market integration can continue without undermining its nation-based models of social protection. Three recent ECJ decisions (Viking, Laval and Ruffert) seem to confirm Scharpf's (2002) assertion that the EU suffers from constitutional asymmetry. By contrasting these developments with the earlier integration of US markets – where a rough constitutional symmetry can be said to exist – the article concludes that constitutional symmetry, in itself, is probably insufficient to protect the sort of corporatist arrangements that undergird northern European social models.

Pan-European pension funds: Current situation and future prospects

The competitive pressures arising from European economic integration increasingly challenge the territorial sovereignty of national welfare states. This generates the need to situate domestic social security schemes amid the European Union's national and supranational as well as economic and social spaces. At the trans-national level, the European Commission's 2003 Institutions for Occupational Retirement Provision (IORP) Directive created the illusion that a single market for occupational pensions would shortly be within reach. This did not happen, however, as IORPs — being at one and the same time financial vehicles and social insurance institutions — embody the constitutional asymmetry between policies promoting market efficiency and policies promoting social protection. Whereas the elimination of financial and tax barriers has proceeded smoothly, harmonization of the social and labour components within the occupational pension domain did not occur, slowing down the development of pan-European pension plans. Nonetheless the road towards a single occupational pension market is still open, with first positive results emerging from the greater involvement of corporate and supranational actors.

Unity in Diversity as Europe’s Vocation and Conflicts Law as Europe’s Constitutional Form

“Unity in Diversity” was the fortunate motto of the otherwise unfortunate Draft Constitutional Treaty. The motto did not make it into the Treaty of Lisbon. It deserves to be kept alive in a new constitutional perspective, namely the re-conceptualisation of European law as new type of conflicts law. The new type of conflicts law which the paper advocates is not concerned with selecting the proper legal system in cases with connections to various jurisdictions. It is instead meant to respond to the increasing interdependence of formerly more autonomous legal orders and to the democracy failure of constitutional states which result from the external effects of their laws and legal decisions on non-nationals. European has many means to compensate these shortcomings. It can derive its legitimacy from that compensatory potential without developing federal aspirations. The paper illustrates this approach with the help of a topical example, namely the conflict between European economic freedoms and national industrial relations (collective labour) law. The recent jurisprudence of the ECJ in Viking, Laval, and Ruffert in which the Court established the supremacy of the freedoms over national labour law is criticised as a counter-productive deepening of Europe's constitutional asymmetry and its social deficit. The introductory and the concluding sections generalise the perspectives of the conflicts-law approach. The introductory section takes issue with max Weber’s national state. The concluding section suggests a three dimensional differentiation of the approach which seeks to respond to the need for transnational egulation and governance.

Social Blind Spots and Monocular Policy Making: The ECJ’s Migrant Worker Model

Despite the development of Union citizenship it is still work that acts as the key to Community rights. The right to equal treatment of workers on the grounds of nationality is accorded greater weight not only than that of Union citizens, but also than rights regarding other discrimination grounds, as all distinctions are eclipsed by that between workers and non-workers. Economic categorization is a process precedent to and isolated from social objectives of the Union, and its predominance suggests constitutional asymmetry – the relegation of social rights to a position beneath and after the guarantee of economic freedoms. It fails to deal with issues of intersectional discrimination where nationality is not the only factor. By patching together a set of generally applicable criteria to define migrant workers, the current regime both treats differently people who are in a similar situation – thanks partly to the arbitrariness of the criteria landed upon – and fails to treat differently people in different situations, by subjecting all migrants to the same test. This article argues in favour of an integrated interpretation approach: that the reach of free movement rights should be defined according to a duty of both formal and substantive equal treatment. The scope of migrant work should be subject to the same principles as the content of Community law. In this way some asymmetry could be redressed; not by attempting to Europeanise the social, but by socializing the (already European) economic.