European and National Constitutional Law
Full course description
This mastercourse is a compulsory course in the public law track of the European Law School master programme and an elective for students in the other track of ELS, and for students in the master Globalisation and Law, International Laws and Nederlands recht (Dutch Law). The course focuses on the relationships between EU law and domestic constitutional law and for the latter part in a comparative setting. The course is not a purely or exclusively legal one, but also devotes quite some attention to political processes and developments, since these cannot and should not be ignored.
We will seek to discuss and analyse questions such as: how does multi-layered decision- making take place; how has national constitutional law evolved under the influence of EU law; how may we perceive ‘European’ democracy in the light of national states and democracies and how to assess the option of dual legitimacy. The course has therefore a vertical approach (EU- national member-states), as well as a horizontal perspective, looking into the impacts and practices in a few national constitutional systems. The course focuses on the present state of affairs (what are the present powers of national parliaments vis- a- vis EU law making, for instance) but allows also plenty of room to relate to topical discussion papers and state of discussions about the optimal or desired balances between EU and member states. It is also evident that we will try furthermore to include recent events and steps in the integration process or national developments, such as national or elections for the EP, rule of law issues in Poland, or the Brexit.
The aim of this course is to study national constitutional law in its relations to EU law, with their various interactions and multi-layered features. This perspective is necessary for instance to understand where and when to lobby, or to be aware how consultations and deliberations on rule and policymaking take place. When studying substantive areas of the law, one has to be increasingly aware that multi-layered rules and rule makers exist and cooperate. Not only on one level (EU or state) but also in collaboration between levels and between EU and states. The goal of this course is to show actual developments in domestic constitutional law and its relation to European constitutional law. This course furthermore shows the interaction between national and European constitutional law and its multi- layered aspects. It is therefore relevant to know who is/are involved and how decisions relate to one another. And this is the case in rulemaking, and their execution and implementation of rules and policies. The new Single Supervisory Mechanism (SSM) for the European banking supervision is one of the examples where two systems of supervision do exist: one for major banks and one for the other banks; the former to be exercised by the ECB and the latter by the national authorities. However the states are not free in their supervision, but have to apply EU rules and operate under the ECB oversight.
Modern lawyers cannot in many domains operate without insight in the interaction of EU competences and national authorities’ powers. This goes for lawyers; judges; civil servants, lobbyists and consultants and others. All lawyers have to a lesser or larger extent to be able to navigate between different sources, actors, decision makers, lawmakers and executives and agencies. In this seven- week course we can go only so far in providing tools and insight in different domains of multi-layered government; it is not the purpose to investigate in detail areas such as the banking union, or competition law, or other domains of the law, but we will trace the phenomenon of multi-level government and the various ways of interaction between the EU and states and their effects on national constitutional law and the exercise of powers by national branches of government. We will focus on the phenomenon of multi-layered legal systems; on the process of law-making and the role of national parliaments in implementing EU directives or trying to block EU law making (the so called yellow card), and also the role of national parliaments in holding their ministers and governments accountable for their input in EU decision-making. Furthermore we will devote attention to national budgetary law- making and the European Semester and the requirements posed by EU rules for national budgets and their enforcement. These issues will also lead us into a discussion of the future of the EU; its competences, its legitimacy, its democratic foundations and developments pertinent to further integration, or more focus, or towards a political union and more transparency. Finally we will focus on the courts and their role in the application and enforcement of EU law as well as on human rights where courts do play their role and which is a nice example of the interplay between different courts (national, EU and European Convention of Human Rights) and different human rights documents (Constitutions, Charter, European Convention).
Students will have a thorough understanding of the interaction between EU and national (constitutional) law.
This course builds upon the other preceding courses in the master European Law School, such as advanced European Law and Fundamental Rights. Furthermore we do expect all students to possess knowledge of constitutional legal concepts and of their own constitutional system as well as a sound political interest. In case you have started the ELS program in the beginning of 2017 (and this course is actually one of your first courses in the master ELS program), we do recommend to acquaint yourself of the necessary knowledge of (institutional) EU law. We do also recommend strongly to follow the relevant news about EU integration developments and relevant discussions and papers and documents. The sites of the Commission, Council, and Parliament contain extensive information on all relevant issues and topics. And possibly the same applies for the sites of parliaments and governments in your home country.
Unfortunately there is not one book on all subjects of this course. Many of the issues are recent and current, which means that we will have to cope with policy documents and only a few academic articles. For that reason we intend to have a small syllabus ready and will have compiled materials for the various parts of this course. We are aware however that developments sometimes may go quicker than we have foreseen, so we do reserve the right to add new links and documents where necessary. We will post these materials on the student portal. We have indicated the relevant materials on a weekly basis, mostly by inserting the link to the relevant document, article or source. These are easily downloadable or may be found in the university library. When not, we have made it available in a paper-reader. We assume that all students prepare themselves properly by reading the prescribed materials and preparing themselves for the tutorials and for discussion.