Treaty Changes Research Articles

Health Union and Bioethical Union: Does Hippocrates Require Socrates?

Health Union raises bioethical questions ranging from resource allocation and risk balancing to respect for specific bioethical prohibitions, as an analysis of the European Parliament’s proposal for such a union shows. To date, European Union (EU) health law has succeeded in avoiding or circumscribing such questions, leading to the limited and inconsistent patchwork of EU bioethical provisions we currently have. Can this continue with a Health Union? This article argues that whilst full harmonisation is neither possible nor desirable, Health Union should entail a deepening of bioethical integration. This should occur via a robust legislative process involving citizen panels and ethical advisory group input; if Treaty change occurs, this process could be included in primary law. This is so for three reasons. First, addressing Health Union’s unavoidable bioethical questions coherently and openly reduces the risk of inadequate protection and, conversely, of interest groups “smuggling in” unsupported answers. Second, this will ensure respect for primary law, including Article 2 TEU and Article 3 CFR. Third, EU biolaw offers a middle ground between limited national and weak international human rights law on bioethics, whilst also consolidating European identity.

Time to use to European power again

The decline of Russia and rise of China have shifted the security focus of the US towards China, leaving a security vacuum in Europe’s neighbourhood that the EU has so far been unwilling to fill. The vacuum has been exploited by hostile external powers, and nationalist anti-Europeans within, threatening the survival of the EU itself. A stronger European security role, anchored in a unified strategic culture, could turn the EU into a producer of regional security, and provide a new conservative narrative for European integration. While this will eventually need a treaty change, the centre–right should not wait until then to relegitimise the use of European power in Europe’s own neighbourhood.

Beyond Powder Kegs and Crystal Balls: Finding Meaning in the Appellate Body’s Interpretation of WTO Law

This article seeks to establish the interpretative methodology used by the WTO Appellate Body and panels in deciding cases. The modern WTO dispute settlement system has been the subject of great criticism, including allegations of judicial activism and use of judicial precedent. These perspectives are founded upon a false theoretical dichotomy, whereby the WTO system is viewed either as a global constitutional system or, alternatively, that its rules are subsidiary to a host of other values and norms, including environmental protection, human rights and national regulatory choice. First, the modifications in institutional architecture under the dispute settlement system are traced and discussed. This includes an analysis of treaty changes, the organisation and structure of panels and the adoption of reports. Subsequently, an analysis of WTO/GATT jurisprudence is made to ascertain the various legal sources used, the normative hierarchy established, the application of VCLT provisions and other rules of treaty interpretation, the use of evolutionary interpretation and the significance of special rules. This Section relies on case law and academic literature. Finally, the question of the fragmentation of international law is addressed with respect to treaty interpretation. This Section analyses legal pluralist arguments, particularly by Weiler, Fischer-Lescano and Teubner and establishes legitimate responses to their arguments. Moreover, certain similarities are established with other international courts and tribunals.

Towards a European Health Union: What Role for Member States?

Calls for a European Health Union apparently challenge long-standing beliefs that national healthcare system organisation is a Member State competence. Interaction between Member State and European Union (EU) levels therefore fundamentally requires reflection in the design, overall structure and legal basis of any European Health Union. Article 168(7) Treaty on the Functioning of the European Union (TFEU) provides the current version of the seemingly limited EU competence with regards to national healthcare system organisation and has received surprisingly little attention thus far. On the one hand, within the wider EU health competence ‘web’, Article 168(7) TFEU constrains EU adoption of measures incentivising Member States to use particular treatments or to increase intensive care units in response to COVID-19. On the other hand, Article 168(7) TFEU is challenged by the perceived influence of Country-Specific Recommendations issued in the context of the European Semester on national health policies. This opinion piece provides an original assessment of Article 168(7) TFEU to argue that Treaty change to redress the balance between EU and Member State competence regarding national healthcare systems may be uncalled for given both the flexibility afforded by the provision and the complexity and diversity of Member State healthcare systems.

'When Worlds Collide' - The CJEU and International Law

This article traces the trajectory of the CJEU’s approach to international law over the years, with a focus on its case-law following the significant Treaty changes made in 2009 by the Lisbon Treaty, strengthening the special status given to international law by the EU legal order. It argues that, following the CJEU’s Kadi judgment – in which it famously held that, in case of conflict between EU fundamental rights and international law, the EU legal order must prevail – the CJEU has now entered a “post-Kadi” phrase characterized by a re-emphasis on its firm belief in international law. The article argues that the CJEU’s post-Kadi approach is supported by the Lisbon Treaty’s changes but also, as discussed below, raises potential questions as to which court should be the ultimate arbiter of the requirements of international law.

Is This Completely M.A.D.? Three Views on the Ruling of the German FCC on 5th May 2020

This brief note, on the Bundesverfassungsgericht’s Weiss judgment of 5th May 2020, highlights three implications of the German Federal Constitutional Court’s landmark ruling and its constitutional significance with implications for the wider context of Member States’ cooperation in the EU and European integration as a whole. We explain the relevant background of the judgment and argue that the specific issue created by the judgment might be addressed quickly but that the resulting judicial turmoil for the broader relationship between the law of the EU and the Member States can only be remedied by treaty changes in the longer term in order to avoid the Mutually Assured Destruction (M.A.D.)

Is this Completely M.A.D.?

This brief note, on the Bundesverfassungsgericht’s Weiss judgment of 5th May 2020, highlights three implications of the German Federal Constitutional Court’s landmark ruling and its constitutional significance with implications for the wider context of Member States’ cooperation in the EU and European integration as a whole. We explain the relevant background of the judgment and argue that the specific issue created by the judgment might be addressed quickly but that the resulting judicial turmoil for the broader relationship between the law of the EU and the Member States can only be remedied by treaty changes in the longer term in order to avoid the Mutually Assured Destruction (M.A.D.).

Responding to functionalist Incentives? Exploring the evolution of regional organisations after the end of the Cold War

ABSTRACT The number of regional organisations (ROs) has increased over time. While initially most of the 76 ROs were created to foster economic integration, most have broadened their policy competencies considerably over time. Yet there are distinct geographical patterns in Africa, the Americas, Asia, and Europe. This paper explores whether and under what conditions ROs in different regions respond to functionalist incentives in adapting their policy competencies. To this end, the paper theorises how different forms of problem-pressure, past policy treaty changes, existing policy competencies, RO size and RO composition can trigger political action to broaden RO policy mandates. The analysis reveals that on a global level, RO policy scope expansion is driven by a limited prior scope, democratic responsiveness, RO size and socio-economic capacities, while economic and security problem pressure inhibits ROs from obtaining further policy competencies. In addition, the paper evidences regional specificities.

The Politics of Differentiated Integration: What Do Governments Want? Country Report - Ireland

The report investigates two questions regarding the Irish governmental discourse on differentiated integration (DI). First, how much did Irish governments talk about differentiated integration. Second, what positions did Irish governments take on differentiated integration. The report covers the time period 1990-2019. It distinguishes three conceptual levels: DI models (“multi-speed EU” and “multi-end EU”), DI mechanisms (enhanced co-operation and “opt-outs”), and DI instances (twenty-one differentiated EU policies). It finds that DI is a low salience issue, expect in the context of certain key events (i.e. EU treaty change). Moreover, the positions of Irish governments are highly policy- and context dependent. Over time, a principled negative assessment of “enhanced co-operation” has developed towards a more pragmatic approach, allowing other MS to cooperate in policy-fields where Ireland does not seek closer cooperation.

Reintegration Post-Brexit (2020–2022): European Union Reorganization – Securing The Public Square of Democracy; Creating a New Global Compact

Reintegration Post-Brexit (2020–2022): European Union Reorganization – Securing The Public Square of Democracy; Creating a New Global Compact

Corporate Tax Planning: Canadian Inbound Investment After the MLI

The multilateral instrument (MLI), developed by the Organisation for Economic Co-operation and Development and the Group of Twenty as part of the base erosion and profit shifting initiative was signed by Canada and more than 60 other signatories in 2017 and came into force in July 2018. The MLI introduces significant tax treaty changes that may have the effect of materially altering the tax-planning opportunities available for investing in Canada. This article sets out a brief review of the Canadian case law on the application of tax treaties in relation to investing in Canada, a summary of the treaty changes for Canada contemplated by the MLI, and some anticipated effects on the structuring of investments into Canada. The authors focus on the practical issues that taxpayers face in relation to inbound investment following Canada's ratification of the MLI.

The Mauritius Convention on Transparency and the Multilateral Tax Instrument: models for the modification of treaties?

The investment treaty network and the tax treaty network comprise more than 3,000 treaties each. The provisions of these treaties generally are highly customized on the basis of the investment flows and economic interests of the contracting States. The number of treaties in force and their customization potentially turn the amendment of these treaty networks in their entirety into a cumbersome and long process. To modify the treaty networks in a swift and coordinated manner, the investment treaty makers and the tax treaty makers almost contemporaneously developed the idea of implementing treaty changes through a single multilateral convention. On 10 December 2014, the United Nations adopted the Convention on Transparency in Treaty-based Investor' State Arbitration, also known as the Mauritius Convention. In addition, on 24 November 2016, the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting (BEPS), commonly referred to as the Multilateral Tax Instrument, was concluded under the aegis of the Organisation for Economic Co-operation and Development (OECD). The Mauritius Convention and the Multilateral Tax Instrument share the object and purpose of modifying an extensive number of treaties. However, due to their novelty, little research has been done until now on their common characteristics and differences. The article aims at filling this gap by comparing both multilateral conventions. It also aims at drawing lessons from the analysis of both multilateral conventions that might be of benefit for future modifications of an extensive number of treaties through a single instrument.

Rising despite the polycrisis? The European Parliament’s strategies of self-empowerment after Lisbon

ABSTRACTThe European Union (EU) is currently enmeshed in a polycrisis. Yet, a treaty change to ease these crises is out of reach. We ask how a supranational actor, the European Parliament (EP), strives for more de facto powers amidst this situation. Relying on refined propositions of inter-institutional bargaining theory, we argue that the EP skilfully deploys strategies in order to extend its powers beyond the provisions of the Lisbon Treaty. Based on original interview material, we assess these propositions in two crisis-ridden areas of EU decision-making: economic governance and the negotiation of trade agreements. We find that the EP extended its powers in both policies by applying a set of particular strategies, which include obstructing the decision-making process, acting as a first-mover and mobilizing the public. Finally, we reflect on the possible consequences of this self-empowerment for the EP’s legitimacy.

European Parliament resolutions—effective agenda setting or whistling into the wind?

ABSTRACTThe European Parliament is one of the most studied legislatures in the world. The general consensus in most of these analyses is that the power of the EP in the legislative processes of the EU has increased precipitously, since the introduction of the co-decision procedure. One continuing perceived weakness of the EP, however, is its inability to introduce new legislation. While the EP can request that the Commission initiate a proposal, it lacks the power to introduce bills itself. This research looks at the indirect agenda power of the EP through an analysis of EP own initiative resolutions and their impact on the policy agenda of the EU. The research introduces anew dataset on all EP resolutions between 2000 and 2015 and compares the pre- and post-2009 period to assess the impact of formal treaty changes to the legislative role of the EP have had on its agenda-setting capacity.

State Contingent Debt as Insurance for Euro Area Sovereigns

Abstract The authors provide a novel angle to the ongoing discussions by the G20 on sovereign contingent debt and argue that contingent debt could provide market-based insurance to protect the euro area from future debt crises. Risk-sharing with the markets is a practical way forward in the context of the Franco-German debate on risk-sharing among EU member states vs system-wide risk reduction. The financial innovation of contingent debt is a feasible euro area reform that would not introduce risk-sharing between states or require institutional reforms or Treaty changes. However, coordination would be needed. The authors’ suggestion fills a gap in the proposals on the completion of the banking union and the possible establishment of a European Monetary Fund (EMF). These proposals offer institutions-based solutions to crises, with the banking union providing safety regulations that will make banking institutions more resilient, while the EMF will be a ‘fire brigade’ to be called on in emergencies. What has not been tapped are the markets, whose tolerant behaviour to sovereign demands encouraged the build up of debt, while their finicky response exacerbated the crisis.

Power Shifts via the Judicial Arena: How Annulments Cases between EU Institutions Shape Competence Allocation

AbstractBesides infringement and preliminary ruling procedures, actions for annulment form a third important category of procedures brought before the Court of Justice of the European Union (CJEU). A subset of these actions is ‘horizontal litigation’, where EU institutions litigate against other EU institutions. Based on a new dataset covering all horizontal annulment conflicts (1957–2017), this contribution analyzes conflict patterns. I identify the most typical litigant constellations and link them to substantial battles over competences including winners and losers. Using the example of EU external affairs, I show how annulment actions have shaped the relationship between EU institutions over time, with impact as significant as treaty changes. In sum, the analysis of this so far ‘forgotten’ type of procedure furthers our systematic understanding of policy development and competence allocation in the EU system.

Equality bodies

The Treaty of Amsterdam and the subsequent adoption in 2000 of the so-called Race Directive was a genuine paradigm shift in European equal treatment legislation and practice. One of the major developments resulting from this Treaty change and new Directive was the introduction of a requirement for all European Union (EU) Member States to set up bodies for the promotion of equal treatment, first on the ground of race and ethnic origin, later extended to the ground of gender. This article analyses the emergence of these bodies – equality bodies – in EU Member States and candidate countries and the role they play in promoting equality and the implementation and monitoring of EU equal treatment legislation. It argues that equality bodies have a significant potential to contribute to more equal societies and they have proved to be effective agents of change. They do so, among others, by contributing to relevant case law in front of the Court of Justice of the EU leading to the further development and clarification of EU and national equal treatment legislation. The article also looks at the challenges experienced by equality bodies in different European countries as factors that influence and might limit their potential and contribution. To conclude, the article examines the necessary conditions for equality bodies to effectively contribute to the implementation of EU legislation and the achievement of substantive equality and it assesses whether current standards for equality bodies can guarantee these conditions.

Brexit and Europe: a Political and Spiritual Challenge

Brexit and Europe: a Political and Spiritual Challenge1 Sébastien Maillard Usually when people speak or write about Europe, they focus on its technical, legal or economic challenges. I would like to show how European integration is more political and spiritual than it looks. Until the British referendum of June 2016, we perhaps didn’t pay much attention to the EU or to the fact of belonging to it. When was the last time any of us attended a conference on Europe? For decades, Europe has been something we live with, without really noticing. Except, probably, during the euro crisis that affected Ireland so deeply. Three features of European integration Apart from such a moment, the integration process has been carried on with three features. It seemed self-driven, irreversible, going on forever. Despite many crises, it would always land on its feet. Treaties were ratified with no duration, no end-date. Exchange rates establishing the single currency were irrevocable. It was comfortable to rely on this fiction that the EU would never end and keep going on its way, as with the force of inertia. When the Irish said ‘no’ to a treaty change in a referendum, they did so knowing that the country wouldn’t for that reason be kicked out of the community and that the whole system wouldn’t grind to a halt. Until Brexit, Europe was some vague, abstract idea, setting a political, yet blurred, horizon – a dream of unity not taken too seriously, because it was not really thought of. When paying for an item in euros, you hardly told yourself: ‘Wow, now I’m using the same currency as, say, the Lithuanians, or the Spanish or the Slovenians’. You just paid. Europe would not inspire the kind of emotional feeling you might get when a favourite local or national team wins a match, or when the national anthem is played, or the national feast-day is celebrated. The thought of Europe doesn’t give that kind of chill down the spine. As Jacques Delors said bluntly on one Studies • volume 107 • number 426 157 occasion: ‘One does not fall in love with the Single Market’. And whenever Europe got more concrete, it was in terms of individual benefit for myself as a consumer, for instance through free roaming, or as a farmer because of direct payments, or as a student owing to the Erasmus programme, or as a private investor, or as a producer . . . Europe was good or not too bad for me, not for us. Brexit has suddenly brought us back down to earth. The day following the British referendum, we finally realised that the EU could dissolve, that a country could leave, that the objectives were not that obvious and, to quote the French intellectual Paul Valéry about European civilisation after the First World War, we discovered after Brexit that the EU too was mortal. It can break into pieces. The long, harsh, complex negotiations for the UK to exit the EU also make the reality of European integration less abstract. All those laws, regulations and agreements that the country has to withdraw from all of a sudden look real. Their benefits become evident just when you’re about to abandon them. It’s a bit like when a tree is cut and you notice only the next day that it had been there and now it’s missing. The Brexit paradox is that, as its consequences unfold, it makes us experience Europe more. We measure its legacy. We also witness the expression of emotions: Brexit has become a passionate debate, dividing British households. Remainers wave the EU flag. Brexit forces each one of us to rethink our relationship with Europe more collectively. Ireland is justifiably worried about the border issue and is glad that all the other twenty-six member states of the EU stand behind the Irish on this. It is not just Brexit that urges Europe to act more as a team. Trump, Putin, Xi Jinping, Erdoğan . . . all challenge the EU, which can either consider itself as a unit and respond collectively or divide itself and act separately. The migration crisis does this too. As does...

The micro-politics of parliamentary powers: European parliament strategies for expanding its influence in the EU institutional system

The European Parliament (EP) has gained considerable new powers since it was first established in 1952. Why has this happened, and how should the powers the EP possesses be assessed? This article suggests a novel approach that focuses on inter-institutional micropolitics and the processes in which the EP obtained its powers rather than treaty changes at IGCs. Interinstitutional micropolitics are carried out by institutions and their members who act politically and shape the EU’s system from within. The EP’s successes in interinstitutional micropolitics are shaped by (1) its existing powers that need to be assessed in their differentiation; (2) the interparliamentary setting and the power constellations; (3) the political context; (4) the symbolic powers of the EP and (5) the stakes of the different institutions. The EP’s micropolitics work by first successfully negotiating and creating new rules in use. Only after that, these rules can be institutionalised in IIAs and eventually, but not in all cases, in treaties.

Putting power into practice: Administrative and political capacity building in the European Parliament's Committee for International Trade

As the formal powers of the European Parliament have increased with successive treaty changes, its committees' administrations have seen a parallel growth. We argue that such administrative capacity is necessary but not sufficient for acting on formal treaty powers. Administrative capacity has to be combined with political capacity in order to muster policy impact in European Union decision‐making. By differentiating between intra‐institutional administrative and inter‐institutional political capacity, we offer a fine‐grained conceptualization of policy capacity while broadening the theoretical and empirical understanding of the European Parliament's administration as an organizational structure of formal and informal working practices, intra‐institutional coordination and inter‐institutional relations. Based on expert interviews, document analysis and participant observation, the case of the Transatlantic Trade and Investment Partnership illustrates how societal politicization of a specific policy issue triggered the European Parliament to exploit the latent potential of its post‐Lisbon administrative capacity by transforming it into a more readily deployable political capacity.