European and International Law

Since approval of the EU General Data Protection Regulation (GDPR) in 2016, it has been widely and repeatedly claimed that a 'right to explanation' of decisions made by automated or artificially intelligent algorithmic systems will be legally mandated by the GDPR. This right to explanation is viewed as an ideal mechanism to enhance the accountability and transparency of automated decision-making. However, there are several reasons to doubt both the legal existence and the feasibility of such a right. In contrast to the right to explanation of specific automated decisions claimed elsewhere, the GDPR only mandates that data subjects receive limited information (Articles 13-15) about the logic involved, as well as the significance and the envisaged consequences of automated decision-making systems, what we term a 'right to be informed'. Further, the ambiguity and limited scope of the 'right not to be subject to automated decision-making' contained in Article 22 (from which the alleged 'right to explanation' stems) raises questions over the protection actually afforded to data subjects. These problems show that the GDPR lacks precise language as well as explicit and well-defined rights and safeguards against automated decision-making, and therefore runs the risk of being toothless. We propose a number of legislative steps that, if taken, may improve the transparency and accountability of automated decision-making when the GDPR comes into force in 2018.

The story of European Integration has often been told as that of an 'ever closer union'. This narrative has rightly attracted criticism over the years. However, it is worth exploring through which practices this 'ever closer union' is pursued, because these practices go to the heart of what the European Union is. Existing concepts used to interpret cooperation in the European Union, like harmonization, are unfulfilling, as they are used in different ways depending on the field in which they are applied. Currently, common ground and conceptual clarity are lacking. In an attempt to provide the kind of simplicity that facilitates cross-disciplinary analysis, we introduce the concept of aligning rulesets, a fivelevel framework for studying international cooperation (differentiating between (1) full alignment, (2) methods-based alignment, (3) ends-based alignment, (4) principles-based alignment and (5) no alignment). After introducing our framework, we demonstrate its applicability in the domains of statistical measurement, the responsibility for asylum applications, and the COVID-19 vaccine purchasing policy.

In its judgment in  Pringle , delivered on November 27, 2012, the Court of Justice of the European Union upheld the establishment of the European Stability Mechanism through the conclusion of an international agreement by Euro Area Member States. Beyond its implications for the Union’s economic and monetary policy, this landmark judgment offers food for thought on a series of central issues in EU constitutional law, including the scope of the simplified revision procedure in  art.48(6) TEU or Member State co-operation and the use of EU institutions outside the EU legal order. It also constitutes a unique illustration of multi-level dialogue in the European Union in the post-Lisbon era.

Solidarity was once at the core of the European integration process. While originally intended to facilitate further integration, solidarity, in recent years, has often been associated with the intention of safeguarding existing policies. This article attempts to untangle this polysemous concept. It discusses the constitutional significance of solidarity, ultimately distinguishing four discernible dimensions in the EU context: transnational solidarity, interstate solidarity, solidarity between a particular group of individuals and, finally, the institutional dimension. It unpacks the interaction between solidarity, loyalty and mutual trust, ascertaining them as interlocking principles. We focus on solidarity in the Area of Freedom, Security and Justice, revealing it to have legal effects which require compensatory action to support the application of supranational rules. Nonetheless, the principle can be realized in different ways, and it is far from certain whether the EU institutions are able to muster the political clout and the political legitimacy necessary to overcome divergences of opinion and perception. Against this backdrop, we sketch what EU institutions have undertaken to operationalize the principle in the ambit of EU asylum and border control policies to respond to the refugee policy crisis. The contributions to this special issue delve more deeply into the different aspects of this central theme.

The European asylum system is a relatively advanced regional protection framework, in both legislative and policy terms. However, that same system lacks a mechanism to distribute responsibility fairly among the Member States, as well as legal avenues by which persons in need of protection can access it. To the backdrop of the Syrian crisis and the rising toll of migrant deaths in the Mediterranean Sea, this brief analyses achievements and shortcoming in the area of solidarity and fair-sharing of responsibility between Member States, as well as the external dimension of EU’s common asylum system. In view of the adoption by the European Commission of a “European Agenda on Migration”, it offers tangible ideas for EU policy action that could meaningfully develop this policy and help address the humanitarian tragedy on the EU’s borders.

The book edited by Davor Jancic and published by Oxford University Press is based on the LSE and British Academy conference that the editor organized together with Prof. Damian Chalmers on 10 April 2015 at the LSE Department of Law. The book takes stock of the evolution of the functions of national parliaments in the contemporary EU.
It will be published in February 2017 with my chapter on the green card instrument.

This book investigates the consecutive shifts between three types of intermediary institutions in the European context: Corporatist, Neo-corporatist and Governance institutions. It develops a new conceptual framework for understanding the function and position of intermediary institutions in society, as well as a vocabulary capable of explaining the causes and consequences of these shifts for politics, economy and society at large. The book is designed to fill a gap in three rather distinct, yet also overlapping bodies of literature: European Political Economy, European Integration and governance studies, and socio-legal studies in the European context.

Reviews:
- Anne Guisset: Transfer: European Review of Labour and Research, 22, 3, 427-429, 2016.

- Ian Bruff, Capital & Class, 40, 3, 555 – 57, 2016.

List of Content:

INTRODUCTION

Poul F. Kjaer

PART I: The Big Picture: From Corporatism to Governance

Chapter 1
From Corporatism to Governance: Dimensions of A Theory of Intermediary Institutions
Poul F. Kjaer

Chapter 2
Corporatism and Beyond? On Governance and its Limits
Bob Jessop

CHAPTER 3
From Neo-corporatism to Neo-pluralism: The Liberal Drift of Multilevel Governance
Richard Münch

PART II: Intermediary Institutions in the Transformation of Economic Policy

Chapter 4
Collective Action and the Making of Economic Policy: Intellectual Lineages from the History of Political Economy
Alexander Ebner

Chapter 5
EU Competition Regulation: A Case of Authoritarian Neo-liberalism?
Angela Wigger & Hubert Buch-Hansen

PART III: Intermediary Institutions in the Re-configuration of Social Policy

Chapter 6
Fabricating Social Europe: From Neo-corporatism to Governance by Numbers
Gert Verschraegen

Chapter 7
European Social Policy: Social Cohesion through Competition?
Eva Hartmann

PART IV: Intermediary Institutions and the Law
Chapter 8
The Shadow of the Law: Intermediary Institutions and the Ruling Part of Governance
Alfons Bora

Chapter 9
Taking Governance to Court: Politics, Economics, and a New Legal Realism
Sabine Frerichs

Part V: Intermediary Institutions and Constitutional Transformations
Chapter 10
The Consitutionalisation of Everyday Life?
Grahame F. Thompson

Chapter 11
The Democratic Surplus that Constitutionalised the European Union: Establishing Democratic Governance through Intermediate Institutions
Gorm Harste

Chapter 12
The Crisis of Corporatism and the Rise of International Law
Chris Thornhill

What is to be learned from the chaotic downfall of the Weimar Republic and the erosion of European liberal statehood in the interwar period vis-a-vis the ongoing Europeancrisis? This book analyses and explains the recurrent emergence of crises in European societies. It asks how previous crises can inform our understanding of the present crisis. The particular perspective advanced is that these crises not only are economic and social crises, but must also be understood as crises of public power, order and authority. In other words, it argues that substantial challenges to the functional and normative setup of democracy and the rule of law were central to the emergence and the unfolding of these crises.The book draws on and adds to the rich ’crises literature’ developed within the critical theory tradition to outline a conceptual framework for understanding what societal crises are. The central idea is that societal crises represent a discrepancy between the unfolding of social processes and the institutional frameworks that have been established to normatively stabilize such processes. The crises at issue emerged in periods characterized by strong social, economic and technological transformations as well as situations of political upheaval. As such, the crises represented moments where the existing functional and normative grid of society, as embodied in notions of public order and authority, were severely challenged and in many instances undermined. Seen in this perspective, the book reconstructs how crises unfolded, how they were experienced, and what kind of responses the specific crises in question provoked.

List of Content

Introduction: European Crises of Public Power: From Weimar until Today, Poul F. Kjaer & Niklas Olsen / PART I: Semantics, Notions and Narratives of Societal Crisis / 1. What Time Frame Makes Sense for Thinking about Crises?, David Runciman / 2. The Stakes of Crises, Janet Roitman / PART II: Weimar and the Interwar Period: Ideologies of Anti-Modernism and Liberalism / 3.The Crisis of Modernity – Modernity as Crisis: Towards a Typology of Crisis Discourses in Interwar East Central Europe and Beyond, Balázs Trencsényi / 4. European Legitimacy Crises – Weimar and Today: Rational and Theocratic Authority in the Schmitt-Strauss Exchange, John P. McCormick / 5.Crisis and the Consumer: Re-constructions of Liberalism in Twentieth Century Political Thought, Niklas Olsen / PART III: The Causes of Crises: From Corporatism to Governance / 6. The Constitutionalisation of Labour Law and the Crisis of National Democracy, Chris Thornhill / 7. Conflict and the Crisis in Labour Law: From Weimar to Austerity, Ruth Dukes / 8. From the Crisis of Corporatism to the Crisis of Governance, Poul F. Kjaer / PART IV: The Euro and the Crisis of Law and Democracy / 9. What is Left of the European Economic Constitution II? From Pyrrhic Victory to Cannae Defeat, Christian Joerges / 10. Reflections on Europe’s “Rule of Law Crises”, Jan-Werner Müller / 11. Democracy under Siege: The Decay of Constitutionalisation and the Crisis of Public Law and Public Opinion, Hauke Brunkhorst / PART V: The Consequences of Crises and the Future of Europe / 12. Crises and Extra-Legality: From Above and from Below, William E. Scheuerman / 13. “We could Go down the Road of Lebanon”: Crisis Thinking on the Anti-Muslim Far Right, Mikkel Thorup / 14. Conclusion and Perspectives: The Re-constitution of Europe, Poul F. Kjaer & Niklas Olsen

Review and review essays:
Romain Bonnet (2017): European Review of History: Revue européenne d'histoire, DOI: 10.1080/13507486.2017.1317054
Andreas Marklund (2018) Historisk Tidsskrift, 117, 2, 637 – 39.
Pablo Holmes (2018), ‘The constitutional politics of crisis in Europe’, Culture, Practice & European Policy, 3, 2, 92 – 98.

In this contribution, we address the issue of the international responsibility of the European Union in the area of trade, in particular within the framework of the WTO. We argue that this is a case apart from ‘usual’ approaches to responsibility of international organisations under international law. We analyse how the EU has acted within WTO dispute settlement, especially concerning complaints launched against individual Member States, as well as the reactions of the WTO secretariat and other WTO Members over time. This yields that instead of abstract theoretical considerations about the ‘veil of the organisation’, a pragmatic approach prevails in which the Union consistently comes to the fore in defending its Member States, which is accepted by the outside world. This is due to two main reasons: First, the  ‘self-contained regime’ of the WTO and its dispute settlement mechanism; secondly, the peculiar position of the EU and its Member States within the WTO. These features make the EU and the WTO an ‘odd couple’ on the international stage, not least with regard to international responsibility. In this particular setting, the EU indeed asserts its itself internationally as a ‘responsible’ power – also to the benefit to third parties.