List of topics for papers

Transcription

1 General information List of topics for papers The paper has to consist of words (including footnotes). Please consider the formatting requirements. The deadline for submission will generally be on Thursday before the discussion of the assigned topic in class. After this first submission, students have one week to hand in a revised version, which gives due regards to the discussion of the topic in class. Please note that you are expected to limit your topic so you can respect the word limit and still provide a thorough, but concise, analysis of the issue. Although a neutral presentation of the chosen topic should be included in the paper, it should not be limited to this. In order to pass the course, you need to critically analyse the topic and also take a stand on debated issues. The analysis in particular should focus on institutional questions of the topic. A. Brexit The topics A1 to A12 will be discussed in the lectures of 3 March and 24 March A first version of the paper needs to be submitted by 23 March A revised version of the paper has to be submitted by 31 March A1: The historical development of the United Kingdom s membership in the EU The United Kingdom joined the then European Communities in 1973 after two unsuccessful attempts. Shortly afterwards, the accession treaty was renegotiated and a referendum was held on the British accession to the EC. This set the starting point to a relationship characterised by exceptions and opt-outs. Focusing on institutional aspects, this paper should give an overview of the historical development of the UK s membership in the EU and analyse how this is related to its decision to exit the EU taken in the June 2016 referendum. A2: The United Kingdom and the Euro area The United Kingdom is not a member of the Euro area and thus not part of the monetary union. This has some complex institutional consequences, in particular with regard to decisions taken by the European System of Central Banks and the European Central Bank. Furthermore, the UK s voting rights for certain acts of the Council are suspended. This paper should give an overview of the UK s opt-out from the Economic and Monetary Union, focusing on the institutional aspects. One part of the paper should concentrate on the potential role played by the financial crisis in the Euro area in the Brexit vote. 1

2 A3: The United Kingdom and the Schengen area The United Kingdom is not part of the Schengen area. This means that the UK still maintains border checks. This paper should analyse the content and reasons of the UK s opt-out from the Schengen area. A special focus should be on the consequences of the UK s withdrawal from EU membership: Currently, UK citizens need to show a passport to enter the Schengen area and vice-versa. How could travel to and within the Schengen area look like for UK citizens in the future? A4: The European Union Act 2011 The European Union Act was adopted by the British Parliament in It contains two important provisions: First, a sovereignty clause, which reaffirms the sovereign character of the legislative power of the UK Parliament, and second, a so-called referendum locks, which demands the approval of certain EU acts by Parliament or in a referendum. This paper should present the reasons for the adoption of the European Union Act 2011 and analyse the impact on the relationship of the EU with the UK. A5: The United Kingdom s opt-out from the EU Charter of Fundamental Rights Protocol No. 30 states that the EU Charter of Fundamental Rights has not extended the ability of the CJEU or any court or tribunal in the UK to rule on the consistency of the law and practice of the UK with the fundamental rights of the Charter. This paper should show the reasons that had motivated the UK to pursue this opt-out and locate it in the UK s general approach to international human rights protection, in particular in the framework of the Council of Europe. One section should also address the effects of this opt-out on the relationship of the CJEU and the European Court of Human Rights. A6: The UK s Renegotiation Agreement with the EU The European Union Referendum Act 2015 obliged the UK Government to renegotiate its relationship with the EU. This paper should give an overview of the main positions with regard to the issues under renegotiation and critically analyse the outcome of the renegotiation. The analysis should also include the potential consequences the Agreement could have had on the EU, if it had entered into force. A7: The process of withdrawal from the EU according to article 50 TEU A provision dealing with the procedure of withdrawal from European Union membership was only introduced with the Lisbon Treaty. Before, the question whether and how a state could exit the EU was highly controversial. This paper should give an overview of these controversies and the process that led to the adoption of art. 50 TEU. Furthermore, the strengths and weaknesses of the provision should be critically analysed in the paper. 2

3 A8: The right to trigger article 50 TEU in the UK Art. 50 TEU refers to the constitutional requirements of the withdrawing member state when it comes to the notification of the European Council of the decision to exit the EU. In the United Kingdom, a dispute has arisen with regard to the question whether the Parliament or rather the Government is competent to depose this notification. This paper should give an overview of the different positions and in particular include a critical analysis of the decisions taken on the matter by the High Court as well as the Supreme Court (if published). A9: A typology of agreements of the EU with non-member states The EU has entered into various bilateral or multilateral agreements with nonmember states. In general, four models can be identified: first, the Canadian model, which is based on a Free Trade Agreement; second, the Turkish model, which is characterized by a customs union; third, the Swiss model, which includes a complex system of bilateral treaties; fourth, the Norwegian model, which is based on a membership of Norway in the European Economic Area. This paper should give an overview of the different models and critically discuss future possibilities for the UK s relationship with the EU. A10: The referendum in Greenland Greenland became part of the territory of the then European Communities (EC) because it belongs to the Danish Realm. In 1972, however, a referendum was approved in Greenland to leave the EC. Although the exit took the form of a reduction of the territorial jurisdiction of the EU Treaties and not of a withdrawal from membership, some conclusions can be drawn for the exit of the UK. This paper should address, in particular, the negotiations led after the referendum and the relationship of Greenland with the EU today. A focus should lie on lessons that can be learnt from this example. A11: The situation of Ireland and Northern Ireland after Brexit In June 2016, a majority of the population of Northern Ireland voted in favour of remaining in the EU. With the UK now leaving the EU, interesting legal questions arise with regard to the relationship of Northern Ireland and Ireland. This paper should give an overview of their past relationship and analyse potential future prospects, in particular with regard to the consequences of a unification of Ireland and Northern Ireland for the EU. 3

4 A12: Future prospects for Scotland in the EU and the UK In 2014, Scotland held a referendum on the independence from the UK. A decisive factor for the people s decision to remain part of the UK was EU membership. It is thus not surprising that a majority of Scotland s population voted to remain a member of the EU in the Brexit referendum. This paper should analyse the prospects and difficulties of Scotland, as an independent state, to become a member of the EU. Although internal legal requirements of Scotland and the UK should also be analysed, the focus should lie on EU institutional law. B. Dispute settlement The topics B1 to B7 will be discussed in the lectures of 31 March A first version of the paper needs to be submitted by 30 March A revised version of the paper has to be submitted by 7 April B1: Reform of the Court of Justice of the European Union The Court of Justice of the European Union is confronted with an ever-increasing amount of cases and sometimes encounters difficulties in offering remedy in a reasonable time frame. In order to solve this and other problems of the EU court system, different proposals for reforming the CJEU have been discussed. This paper should focus on the reform proposal made by Regulation 2015/2422 and critically discuss the changes that shall be introduced. B2: The supremacy principle in the CJEU s and national courts jurisprudence The approaches of the Court of Justice of the European Union and national courts to the question of the relationship between EU law and national law differ sometimes significantly. This paper should give an overview of the development of the CJEU s approach and also discuss selected national courts approaches. A focus should lie on the historical development and approximation of the approaches on the EU and national level. B3: The relationship between EU law and national law in Switzerland Although not a member of the European Union, Switzerland is linked to the EU by a range of different bilateral agreements. Switzerland has not transferred any legislative or other decision-making powers to the EU. Nevertheless, Switzerland agreed in these bilateral agreements to take on certain aspects of EU legislation in exchange for accessing the EU single market. This paper should shed light on how EU legislation is included in the Swiss legal order. A focus should lie on a critical discussion of the case law of Swiss courts on conflicts between EU law and Swiss national law. 4

5 B4: Different practices for the settlement of investment disputes For several years now, the EU has included dispute settlement mechanisms in its Free Trade Agreements (FTA) and investor-to-state dispute settlement mechanisms in trade and investment agreements. Different approaches have been chosen for the Comprehensive Economic and Trade Agreement (CETA) with Canada and the EU- Vietnam FTA. For the Transatlantic Trade and Investment Partnership (TTIP) with the United States, the European Commission has now proposed a so-called Investment Court System. This paper should give an overview of these three new models for the resolution of investment disputes. A focus should lie on a critical discussion of the advantages and disadvantages of the European Commission s proposal for TTIP. B5: Prospects of a Multilateral Investment Court The European Commission s stated goal for the settlement of international investment disputes is a Multilateral Investment Court. Such goal can be linked to an overall reformed investment dispute settlement approach, which departs from the private law conceptualisation of investment law towards a public law approach. This paper should give an overview of the EU s role in such change of approach and show the future prospects, as well as the advantages and disadvantages of a Multilateral Investment Court. B6: The Court of Justice of the EU and the direct effect of WTO agreements The CJEU, according to its standing jurisprudence, denies the direct effect of WTO agreements at the EU level. Nevertheless, there are certain escape routes from this strict denial, for example the rule that, among different possible interpretations, the one that is consistent with the international agreements which are part of EU law shall be chosen. This paper should discuss the CJEU s case law with regard to the direct effect of WTO agreements, as well as the influences that WTO law had notwithstanding this approach. A section should also be dedicated to future prospects of a potential change of approach by the CJEU, in particular when looking at the case law of national courts. B7: The European Union as a party to WTO disputes The EU has a special role in WTO dispute settlement, for which two major cases, the Bananas and the Hormones case, can serve as an example. In both cases, many attempts for adjudication at different levels were made. This paper should give an overview of these two leading cases and critically analyse their outcome. A section of the paper should be dedicated to the question how these two cases can be located in the EU s general approach to WTO law. 5

6 C. The EU and fundamental rights The topics C1 to C10 will be discussed in the lectures of 7 April A first version of the paper needs to be submitted by 6 April A revised version of the paper has to be submitted by 14 April C1: The EU Charter of Fundamental Rights Despite the fact that the draft European Political Community Treaty in 1953 already foresaw the inclusion of the European Convention on Human Rights in the law of the new Communities, it was only in 2009 that human rights were officially included as individual rights in the EU legal order. This paper should give an overview of attempts to include human rights in EU law and focus in particular on the development of the EU Charter of Fundamental Rights. Discussions on the EU s accession to the ECHR should not be extensively elaborated in this paper. C2: Development of the general principles in EU law Before the official adoption of the EU Charter of Fundamental Rights, the CJEU included certain fundamental rights and principles in the EU legal order by means of the development of so-called general principles of EU law. In particular, the European Convention on Human Rights was a special source of inspiration for the protection of human rights developed by the CJEU. This paper should give an overview of the development of human rights principles in the jurisprudence of the CJEU before the adoption of the EU Charter in One section should also elaborate on changes in this jurisprudence after C3: Review of EU acts by the ECtHR As the EU has not yet ratified the ECHR, its actions are technically not under the jurisdiction of the ECtHR. Yet, the actions of EU member states are, and this has led to some interesting conflicts in recent years. Based on the Bosphorus case, the ECtHR established the presumption of equivalent protection of fundamental rights in the EU. This paper should critically analyse the development of this jurisprudence and also include its potential future, with or without an accession of the EU to the ECHR. C4: The EU s accession to the ECHR Article 6 TEU creates a mandate for the EU s accession to the ECHR. After lengthy negotiations, a draft Agreement on Accession of the EU to the ECHR was finally agreed upon; it was, however, later rejected by the CJEU in Already in 1996, the CJEU had rejected the compatibility of EU accession to the ECHR with EU law. This paper should give an overview of the various attempts made for the EU to accede to the ECHR and critically discuss the most recent developments. A focus should lie on the potential institutional consequences of such accession. 6

7 C5: The Dublin system and fundamental rights The so-called Dublin system, which regulates which state is responsible for the examination of an asylum request within the EU and associated states, has been analysed at various instances for its human rights compatibility. This paper should give an overview of the relevant jurisprudence of the CJEU, as well as the ECtHR and in particular focus on the return of asylum seekers to other Dublin states. The relationship of the two courts with regard to this particular issue should be a central aspect of this paper. C6: The EU and the UN Convention on the Rights of Persons with Disabilities The UN Convention on the Rights of Persons with Disabilities is the first major international human rights treaty the EU has acceded. This paper should give a general overview of the competence of the EU to ratify such international treaties and then focus on the procedures within the EU leading to the ratification of this specific treaty. One section should then elaborate on the practical effects of such ratification for the EU, its member states and citizens. C7: Implementation of UN Security Council Resolution on the fight against terrorism in the EU and the ECtHR Both the CJEU and the ECtHR were confronted with cases concerning the human rights compatibility of measures taken based on resolutions of the UN Security Council, e.g. freezing of assets of persons suspected of terrorism. This paper should give an overview of why the relevant Security Council resolutions were enacted and how they were implemented in the respective states. Furthermore, the changes that were triggered by the relevant decisions of the ECtHR and the CJEU shall be included in the paper. C8: The EU, financial crisis and fundamental rights During the past years, several member states have severely struggled with the financial crisis. In particular, the economies in Greece and Spain were close to collapse. Considering that both countries are members of the Euro-area, EU institutions were strongly involved in the domestic policies adopted during this time. This paper should give an overview on how the EU was involved in austerity measures adopted in Greece and Spain to combat the financial crisis. A focus should lie on the human rights compatibility of such measures. 7

8 C9: Data protection within the EU After a reform process of more than four years, the EU has adopted a new legal framework for data protection, which is seen as better suited to deal with challenges arising from this area today. This paper should analyse to what extent the reformed legal framework for data protection improves the protection of fundamental rights within the EU. Such analysis in particular should include the recent jurisprudence of the CJEU regarding the respect for fundamental rights in the context of the so-called right to be forgotten, the Data Retention Directive and the safe harbour agreement between the EU and the US. C10: EU trade and investment agreements and fundamental rights EU trade and investment agreements are subject to increasing controversy amidst human rights concerns. The Walloon parliament s refusal regarding the signature of EU-Canada Comprehensive Economic and Trade Agreement (CETA) is the last of several examples of how the EU s trade and investment apparatus compatibility with human rights is being questioned. This paper should give an overview of such recent criticisms and inquire how human rights are taken into account in such trade and investment agreements. Furthermore, a critical analysis of EU endeavours in this regard should be included in the paper. D. The EU and the people The topics D1 to D6 will be discussed in the lectures of 5 May A first version of the paper needs to be submitted by 4 May A revised version of the paper has to be submitted by 12 May D1: European citizenship Citizenship of the European Union is an essential part of the shift from a mainly economic to a political union. A set of decisions by the CJEU regarding citizenship has strengthened the position of the people in the EU. This paper should give an overview of why European citizenship was established and what the rights and duties of European citizens are. Furthermore, it should critically reflect on the need for European citizenship and its contributions to forming the people of Europe. 8

9 D2: Political rights of citizenship in the EU Article 22 TFEU provides that citizens of the EU shall have the right in a member state other than that of their nationality to vote and to stand as candidates both in municipal and in European Parliament elections and under the same conditions as nationals. This paper should give an overview of the development of such political rights and the controversies surrounding their introduction. In particular, problems arising today with regard to smaller numbers of people actively participating in democratic life and measures taken to remedy this situation should be critically analysed. D3: The European Citizens Initiative With the Lisbon Treaty, article 11(4) was newly introduced in the TEU. It foresees the implementation by the ordinary legislative procedure of the so-called European Citizens Initiative. One million EU citizens can thus invite the Commission to bring forward certain legislative initiatives. This paper should give an overview of the institute of the European Citizens Initiative and how it has been used so far. Furthermore, a critical analysis of the pro and cons of this Initiative and the reasons for its introduction should be included in the paper. D3a: The involvement of the people in revisions of the EU treaties The treaties of Maastricht, Nice and Lisbon, as well as the Treaty Establishing a Constitution for Europe, have been put up for popular votes in certain states. The outcomes of these votes were not always in favour of the proposal. Thus, the will of the people managed to influence the drafting of EU treaties significantly. This paper should give an overview of popular referenda on the EU treaties and discuss ways in which such votes have shaped the EU that exists today. D4: The CETA and the people The Comprehensive Economic and Trade Agreement (CETA) between the EU and Canada, like other recent free trade agreements, was severely criticised. In Belgium, the opposition to the trade deal led the parliament of the Belgian region of Wallonia to refuse its approval. Only after the leaders of five regional parliaments had reached an agreement, could Belgium, and thus the EU, ratify the CETA. This paper should discuss the reasons for the strong opposition to the CETA and trade agreements in general. Furthermore, the question how national interests and concerns can be integrated in EU negotiations should be addressed. The underlying topic of popular sovereignty in the European Union should be especially considered in the analysis. 9

10 D5: The Swiss mass immigration initiative from a Swiss perspective The Swiss people have accepted the popular initiative requesting the limitation of immigration in February The provision that was thus introduced in the Swiss Constitution stands at odds with Switzerland s bilateral agreements with the EU. Consequently, Switzerland attempted renegotiation of its relationship with the EU. This paper should give an overview of the situation from a Swiss perspective and focus in particular on how Switzerland is attempting to balance the aim to respect the will of its people and its international obligations. D6: The Swiss mass immigration initiative from the EU s perspective The Swiss people have accepted the popular initiative requesting the limitation of immigration in February The provision that was thus introduced in the Swiss Constitution stands at odds with Switzerland s bilateral agreements with the EU. Consequently, Switzerland attempted renegotiation of its relationship with the EU. This paper should analyse the situation from the EU s perspective and focus on how the EU tries to balance the respect for basic principle, the free movement of people, and popular sovereignty. 10