Professional Documents
Culture Documents
Series Editors
PAUL CRAIG
Professor of English Law at St John’s College, Oxford
GRÁINNE DE BÚRCA
Professor of Law at New York University School of Law
FEDERICO FABBRINI
1
3
Great Clarendon Street, Oxford, OX2 6DP,
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Series Editors’ Preface
This book is simultaneously an account of the development of European Union
human rights law over recent decades, and a work of comparative federalism.
Focusing on the multi-level systems of human rights protection in the EU and in
the US, and on the interaction between the federal and the state levels, the author
examines the dynamics at play in the emergence over time of standards of human
rights protection in Europe. He suggests that problems of ineffectiveness in
standards of protection may arise when the ‘federal’ level sets a ceiling in relation
to a particular right, and that problems of inconsistency may arise where the federal
level merely sets a floor, leaving individual states to develop their own standards. He
suggests that a look at the practice of the United States, particularly in relation to
the interaction between the state and federal levels, can be instructive for the EU
going forward, particularly as its human rights system grows more complex with the
accession of the EU to the European Convention on Human Rights.
Drawing on what the author terms a ‘neo-federalist narrative’, the substance of
the book is built around four interesting comparative case studies, involving civil
and political as well as socio-economic rights. The first is a study of due process
standards for suspected terrorists, the second the right to vote for non-citizens, the
third the right to strike, and the fourth the right to abortion.
This is a lively and readable work which sheds interesting light on the develop-
ment of human rights standards in the European Union, focusing on the interplay
between national, EU, and ECHR standards, and comparing these to relevantly
similar developments in the United States. It should be of considerable interest to
students and scholars of EU law, European human rights law, and comparative
federalism.
Gráinne de Búrca
Paul Craig
Acknowledgments
This book is a revised and updated version of the PhD dissertation I defended at the
Law Department of the European University Institute in Florence in June 2012.
My interest in comparative law and fundamental rights dates back to my early years
of research in Trento, Berkeley, Bologna, and Paris and is part of the luggage
I carried with me to Tilburg Law School in the Netherlands. The four years
(2008–12) I spent in Villa Schifanoia, however, provided the inspiring surroundings
in which to think and write about the constitutional challenges and transformations
facing the European system for the protection of fundamental rights from a
comparative perspective. I would like to thank my supervisor, Miguel Poiares
Maduro, as well as the other members of the jury of my PhD thesis defence,
Marta Cartabia, Marise Cremona, and Vicki Jackson, for guiding, stimulating,
and engaging me throughout the drafting of this work. In the course of my PhD,
I had the privilege to work as the assistant to Martin Scheinin in his capacity as
President of the International Association of Constitutional Law and to intern as a
clerk in the chamber of Justice Sabino Cassese at the Italian Constitutional Court.
Both experiences provided real-life input to my research and I am grateful to Martin
and Sabino for their generosity and support. My sincere gratitude also goes to David
Cole, for welcoming me to Washington D.C. for a research visit, sharing with me
his knowledge on national security and human rights as well as enlisting me as the
coordinator of the Research Group on “Constitutional Responses to Terrorism.”
I concluded this book while at Tilburg Law School, and I wish to thank my
institution and my colleagues Maurice Adams, Pierre Larouche, Randall Lesaffer,
Anne Meuwese, and Corien Prins, for giving me new ideas, enthusiasm, and
encouragement. This book would not have been possible if it were not for the
help and advice of a number of friends and colleagues, who at any time of the day,
and the year, were ready to answer my questions, comment on my drafts, or share
their thoughts on a variety of issues that I faced during my research. Among many,
I wish to thank Giuliano Amato, Miriam Aziz, Loïc Azoulai, Daphne Barak-Erez,
Augusto Barbera, Leonard Besselink, Nicolas Cariat, Damian Chalmers, Monica
Claes, Stephen Coutts, Deirdre Curtin, Giacinto della Cananea, Bruno de Witte,
Akiko Ejima, Tiago Fidalgo Freitas, Michèle Finck, Tommaso Giupponi, Lech
Garlicki, Kasia Granat, Daniel Halberstam, Ȯlaf Hanneson, Claire Kilpatrick, Eva
Koundouraki, Mattias Kumm, Konrad Lachmayer, Joris Larik, Luigi Lonardo,
Beppe Martinico, Fançois-Xavier Millet, Andrea Morrone, Machteld Nijsten, Tuo-
mas Ojanen, Nicky Owtram, Pasquale Pasquino, Ulli Petersmann, Jim Pope, Max
Putzer, Siniša Rodin, Stephen Schulhofer, Robert Schütze, Martin Shapiro, Jo
Shaw, Alec Stone Sweet, Diletta Tega, Roberto Toniatti, Aida Torres Pérez, Michel
Troper, Maria Tzanou, Mathias Vermeulen, and Joseph H.H. Weiler. Paul Craig
and Gráinne de Búrca were kind enough to accept this book into the Oxford Studies
viii Acknowledgments
in European Law series, and the staff at OUP—Alex Flach, Natasha Flemming, and
Clare Kennedy—provided great help in transforming the original manuscript into
this volume. I am glad to acknowledge that some of the chapters are based on my
previous publications: sections of Chapter 3 were published as “Voting Rights for
Non-Citizens: The European Multilevel and the US Federal Constitutional System
Compared” (2011) 7 European Constitutional Law Review 392, while an earlier
version of Chapter 4 appeared as “Europe in Need of a New Deal: On Federalism,
Free Market and the Right to Strike” (2012) 43 Georgetown Journal of Inter-
national Law 1175 (2012), and an earlier version of Chapter 5 as “The European
Court of Human Rights, the EU Charter of Fundamental Rights and the Right to
Abortion: Roe v. Wade on the Other Side of the Atlantic?” (2011) 18 Columbia
Journal of European Law 1. Several of the ideas forming the basis of Chapters 1 and
6 were first sketched out in “The European Multilevel System for the Protection of
Fundamental Rights: A ‘Neo-Federalist’ Perspective,” Jean Monnet Working Paper
15/2010.
This book is dedicated to my family—my father Sergio, my mother Manuela,
and my brother Sebastiano: for all their love, patience, and unremitting support
through this journey.
Federico Fabbrini
Tilburg Law School
August 2013
Contents
Table of Cases xi
List of Abbreviations xx
Introduction 1
Conclusion 272
Bibliography 274
Index 313
Table of Cases
AUSTRIA
Verfassungsgerichtshof (Federal Constitutional Court)
VfGH 7400 JBL [1974]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200
VfGH B3113/96, B3760/97 [1997] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
VfSlg 17.264/2004 [2004] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .102, 251
BELGIUM
Burgerlijke Rechtbank van Eerste Aanleg—Brussels (Court of First Instance—Brussels)
Civ. (4ème Ch.), 11 February 2005, Sayadi and Vinck c. Etat belge, not published . . . . . . . . . . . 55
CALIFORNIA
Supreme Court
People v. Abarbanel, 239 Cal. App. 2d 31 (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
People v. Belous, 71 Cal. 2d 954 (Cal. 1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
Committee to Defend Reproductive Rights v. Myers, 625 P.2d 779 [1981]. . . . . . . . . . . . . . . . . . 226
County Sanitation District v. Los Angeles County Employee Ass’n, 38 Cal. 3d 564 (1985). . . . . . . 171
CANADA
Supreme Court
R. v. Morgantaler, [1988] 1 S.C.R. 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219
R. v. Morgantaler, [1993] 3 S.C.R. 463 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219
CZECH REPUBLIC
Ústavní soud České republiky (Constitutional Court)
Pl. ÚS 5/12, judgment of 31 January 2012, Slovak Pension XVII. . . . . . . . . . . . . . . . . . . . . . . . 22
EUROPEAN UNION
Court of First Instance
Case T-306/01 Ahmed A. Yusuf and Al Barakaat International Foundation v. EU Council
and Commission [2005] ECR II-3533 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52, 62, 65
Case T-351/01 Yassin A. Kadi v. Council of the EU and Commission of the EC [2005]
ECR II-3649 . . . . . . . . . . . . 52, 62, 63, 64, 65, 66, 78, 79, 80, 84, 87, 88, 94, 95, 250, 258
Case T-228/02 Organisation des Modjahedines du peuple d’Iran (OMPI) v. Council of the EU [2006]
ECR II-4665 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79, 80, 81, 85
Case T-253/02 Chakif Ayadi v. EU Council [2006] ECR II-2139 . . . . . . . . . . . . . . . . . . . . . . . 65
General Court
Case T-85/09 Kadi v. Commission (Kadi II), judgment of 30 September 2010, nyr. . . . . . . . .90, 91
Court of Justice
Case 29/69 Stauder [1969] ECR 419 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9, 210
Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125 . . . . . . . . . . . . . . . . . . . . . . . . . 9
Table of Cases xiii
Joined Cases C-21/72 and C-24/72 International Fruit Company [1972] ECR I-1219 . . . . . . . . 63
Case 4/73 Nold [1974] ECR 491 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9, 256
Case 175/73 Union Syndacale, Massa and Kortner v. Commission [1974] ECR 917 . . . . . . . . . . 154
Case 18/75 Syndacat Général du Personnel Organismes Européens v. Commission [1974] ECR 933 . . . 154
Case 43/75 Defrenne v. Sabena [1976] ECR 455 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Case 294/83 Les Verts v. Parliament [1986] ECR 1339. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Case 222/84 Johnston v. Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651. . . . . 62
Case 314/85 Foto-Frost [1987] ECR 4199 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Case 5/88 Wachauf v. Bundesamt für Ernährung und Forstwirtschaft [1989] ECR 2609 . . . . .10, 210
Case C-260/89 ERT [1991] ECR I-2925 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10, 210
Case C-159/90 Society for the Protection of the Unborn (SPUC) v. Grogan [1991]
ECR I-4685. . . . . . . . . . . . . . . . . . . . . . . 210, 211, 212, 213, 214, 223, 238, 240, 242, 254
Case C-369/90 Micheletti v. Delegacion del Gobierno en Cantabria [1992] ECR I-4258. . . . . . . 112
Case C-168/91 Konstantinidis [1993] ECR I-1191. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
Case C-92/92 Collins [1993] ECR I-5145 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
Case C-84/95 Bosphorus v. Minister of Transport [1996] ECR I-3953 . . . . . . . . . . . . . . . . . . . . 87
Case C-67/96 Albany International [1999] ECR I-5751 . . . . . . . . . . . . . . . . . . . . . . . . . .154, 157
Case C-285/98 Tanja Kreil [2000] ECR I-69 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Case C-184/99 Grzelczyk v. Centre public d’aide sociale [2001] ECR I-6193 . . . . . . . . . . . . . . . 125
Case C-224/98 D’Hoop [2002] ECR I-6191 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
Case C-112/00 Schmidberger [2003] ECR I-5659 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Case C-36/02 Omega [2003] ECR I-9609 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Case C-148/02 Garcia Avello [2004] ECR I-11613 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
Case C-200/02 Kunqian Catherine Zhu and Man Lavette Chen v Secretary of State for the Home
Department [2004] ECR I-9925 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
Case C-192/95 Tas-Hagen en Tas [2006] ECR I-10451 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
Case C-145/04 Spain v. United Kingdom (Gibraltar) [2006] ECR I-7917 . . . . . . 98, 124, 129, 139
Case C-300/04 Eman & Sevinger (Aruba) [2006] ECR I-8055 . . . . . 49, 97, 123, 124, 128, 139, 252
Case C-355/04 Segi and others v. EU Council [2007] ECR I-1657. . . . . . . . . . . . . . . . . . . . .65, 66
Case C-438/05 Viking [2007] ECR I-10779 . . . . . . . . . . . . . . . . . . . . . . .49, 142, 156, 157, 158,
159, 160, 161, 162, 173, 174, 180, 181, 182, 183, 184, 185,
186, 187, 188, 192, 193, 194, 253, 257, 258
Case C-341/05 Laval [2007] ECR I-11767 . . . . . . . . . . . . . . . . . . . . . . . .49, 142, 156, 159, 160,
161, 162, 173, 174, 180, 181, 182, 183, 184, 185, 186,
187, 188, 192, 193, 194, 253, 257, 258
Joined Cases C-11/06 and C-12/06 Morgan [2007] ECR I-9161 . . . . . . . . . . . . . . . . . . . . . . 127
Case C-380/05 Centro Europa 7 [2008] ECR I-349 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262
Joined Cases C-402/05 P and C-415/05 P Kadi & Al Barakaat International
Foundation v. EU Council and Commission [2008] ECR I-6351 . . . . . . . . . . . . 49, 53, 79, 81,
82, 83, 84, 85, 86, 87, 89, 90, 93, 95, 251, 258
Case C-550/09 Criminal Proceedings Against E and F [2010] ECR I-6213 . . . . . 79, 83, 84, 85, 95, 251
Case C-271/08 Commission v. Germany [2010] ECR I-7091. . . . . . . . . . . . . . . . . . . . . . . . . . 161
Case C-135/08 Rottmann v. Freistaat Bayern [2010] ECR I-1449 . . . . 98, 125, 126, 127, 128, 129
Case C-34/09 Zambrano, judgment of 8 March 2011, nyr . . . . . . . . . . . . . 49, 126, 127, 129, 139
Case C-434/09 McCarthy, judgment of 5 May 2011, nyr . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
Joined Cases C-411/10 NS and C-493/10 ME, judgment of 21 December 2011, nyr . . . . . . . . 19
Case C-617/10 Åkerberg Fransson, judgment of 26 February 2013, nyr . . . . . . . . . . . . .39, 40, 238
Case C-399/11 Stefano Melloni, judgment of 26 February 2013, nyr . . . . . . . . . . . . . . . . . . .40, 41
Joined Cases C-584/10 P, C-593/10 P and C-595/10 P Commission, Council
and United Kingdom v. Kadi, judgment of 18 July 2013, nyr. . . . . . . . 49, 91, 92, 93, 95, 251
xiv Table of Cases
FRANCE
Conseil Constitutionnel (Constitutional Court)
Décision 71-44 DC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Décision 75-17 DC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
Décision 92-308 DC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
Décision 92-312 DC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
Décision 2001-446 DC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
Décision 2001-449 DC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
GERMANY
Bundesverfassungsgericht (Federal Constitutional Court)
BVerfGE 37, 271 (1974) (Solange I ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 66
BVerfGE 39, 1 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
BVerfGE 73, 339 (1986) (Solange II ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
BVerfGE 63, 37 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .102, 251
BVerfGE 63, 60 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
BVerfGE 88, 203 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
BVerfGE 59 NJW 751 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
BVerfGE 1 BvR 653/96, (1999) (Caroline von Monaco) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
BVerfGE 123, 267 (2009) (Lissabon Urteil ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
GREECE
Symvoulio tis Epikrateias (Council of State)
460/2013, decision of 4 February 2013 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
ILLINOIS
Supreme Court
Spragins v. Houghton, 3 Ill. (2 Scam.) 377 (1840). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
Table of Cases xv
IOWA
Supreme Court
Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
IRELAND
High Court
Society for the Protection of Unborn Children Ireland Ltd. v. Open Door Counselling [1988] IR 593
(H. Ct.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
Society for the Protection of Unborn Children Ireland Ltd. v. Grogan [1989] IR 753 (H. Ct.) . . . . 210
Attorney General v. X. [1992] ILRM 401, 410 (H. Ct.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207
Supreme Court
McGee v. Attorney General [1974] IR 284 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206
Article 26 of the Constitution and in the Matter of the Electoral (Amendment) Bill 1983,
In re [1984] 1 IR 268. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
Society for the Protection of Unborn Children Ireland Ltd. v. Open Door Counselling [1988] IR 618 . . . 213
Society for the Protection of Unborn Children Ireland Ltd. v. Grogan [1989] 4 IR 760 . . . . . .206, 210
Attorney General v. X. [1992] 1 IR 41 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207, 208, 212
Article 26 of the Constitution and the Regulation of Information (Services Outside the State
for Termination of Pregnancy) Bill, In re [1995] 1 IR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . 208
ITALY
Corte Costituzionale (Constitutional Court)
Sentenza 123/1962 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
Sentenza 183/1973 (Frontini) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 66
Sentenza 27/1975 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
Sentenza 290/1974 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
Sentenza 372/2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Sentenza 379/2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Sentenza 348/2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Sentenza 349/2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Sentenza 138/2010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
xvi Table of Cases
MASSACHUSETTS
Supreme Judicial Court
Goodridge v. Department of Public Health, 440 Mass. 309 (2003) . . . . . . . . . . . . . . . . . . . . . . . 31
NETHERLANDS
Hoge Raad (Supreme Court)
HR 30 May 1986, NJ 1986, 688 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
NEW JERSEY
Court of Appeal
ACLU of New Jersey v. County of Hudson, 799 A.2d 629 (2002) . . . . . . . . . . . . . . . . . . . . . . . . 70
NEW YORK
Supreme Court—Appellate Division
Hope v. Perales, 189 A.D.2d 287 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38, 226
PENNSYLVANIA
Supreme Court
Stewart v. Foster, 2 Binn. 110 (Pa. 1809) 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
POLAND
Trybunał Konstytucyjny (Constitutional Court)
TK, decision of 28 May 1997, K 26/96 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206
TK, decision of 11 May 2005, K 18/04 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
SPAIN
Tribunal Constitucional (Constitutional Court)
STC Sentencia 11/1981 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
STC Sentencia 53/1985 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
STC Recurso 4523-10 pending. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
STC Recurso 4541-10 pending. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
Table of Cases xvii
SWITZERLAND
Tribunal Fédéral (Federal Supreme Court)
Youssef Nada v. SECO 1A.45/2007/daa, judgment of 14 November 2007 . . . . . . . . . . . . . . . . . 90
A v. Département fédéral de l’économie 2A.783/2008/svc, judgment of 23 January 2008. . . . . . . . 90
UNITED KINGDOM
Court of Appeal
NURMT v SERCO, ASLEF v. London and Birmingham Railway Ltd. [2011] EWCA Civ 226 . . 179
King’s Bench
R. v. Bourne [1939] 1 KB 687 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206
House of Lords
Taff Vale Railway Co. Ltd. v. Amalgamated Society of Railway Servants [1901] AC 426 . . . . . . . 151
Miles v. Wakefield Metropolitan District Council [1987] AC 539 . . . . . . . . . . . . . . . . . . . . . . . 152
A. and others v. Secretary of State for the Home Dept. [2004] UKHL 56 . . . . . . . . . . . . . . . . . . . 55
R. (On the application of Al-Jedda) v. Secretary of State [2007] UKHL 58 . . . . . . . . . 55, 56, 90, 250
Supreme Court
R. v. Jabar Ahmed [2010] UKSC 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
UNITED NATIONS
Human Rights Committee
CCPR/CO/82/POL, Concluding Observations on Poland, 2 December 2004 . . . . . . . . . . . . . 243
CCPR/C/IRL/CO/3, Concluding Observations on Ireland, 30 July 2008 . . . . . . . . . . . . . . . . 243
CCPR/C/94/D/1472/2006, Decision in case Sayadi and Vinck v. Belgium, 22 October 2008 . . . 55
UNITED STATES
District Courts
KindHearts for Charitable Humanitarian Developments v. Geithner, 647 F. Supp. 2d 857
(N.D. Ohio 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Kadi v. Geithner, 2012 U.S. Dist. LEXIS 36053 (D.D.C., March 19, 2012) . . . . . . . . . . . . . . . 68
Courts of Appeals
El-Masri v. US, 479 F.3d 296 (4th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Isaacson v. Horne, 716 F.3d 1213 (9th Cir. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38, 225
Supreme Court
Marbury v. Madison, 5 U.S. 137 (1803) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Dred Scott v. Sandford, 19 U.S. (How.) 393 (1857) . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 117, 132
Minor v. Happerset, 88 U.S. 162 (1874) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .118, 124
Plessy v. Ferguson, 163 U.S. 537 (1896) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
United States v. Wong Kim Ark, 169 U.S. 649 (1898). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
Pope v. Williams, 193 U.S. 621 (1904) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .118, 121
Lochner v. New York, 198 U.S. 45 (1905) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166, 167, 172, 183
xviii Table of Cases
Adair v. United States, 208 U.S. 161 (1908) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
Loewe v. Lowlor, 208 U.S. 274 (1908). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
Coppage v. Kansas, 236 U.S. 1 (1915) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
Charles Wolff Packing Co. v. Court of Industrial Relations, 262 U.S. 522 (1923). . . . 167, 168, 172, 253
Gitlow v. New York, 268 U.S. 652 (1925) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
Dorchy v. Kansas, 272 U.S. 306 (1926) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .168, 253
New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Schechter Poultry Corp. v United States, 295 U.S. 495 (1935). . . . . . . . . . . . . . . . . . . . . . .168, 191
NLRB v. Jones and Laughlin Steel Corp., 301 U.S. 1 (1937) . . . . . . . . . . . . . . . . . . . . . . . . . . 169
New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552 (1938) . . . . . . . . . . . . . . . . . . . . . . 169
NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938) . . . . . . . . . . . . . . . . . . . . . . . . 170
Consolidated Edison Co. v. NLRB, 305 U.S. 197 (1938) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
NLRB v. Fansteel Metallurgical, 306 U.S. 240 (1939) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
Edwards v. California, 314 U.S. 160 (1941). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
Ex parte Quirin, 317 U.S. 1 (1942). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
U.A.W. Local 232 v. Wisconsin Employment Relations Board, 336 U.S. 245 (1949) . . . . . . . . . . 171
Brown v. Board of Education, 347 U.S. 483 (1954). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Building Trade Council v. Garmon, 359 U.S. 236 (1959) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
Baker v. Carr, 369 U.S. 186 (1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
Reynolds v. Sims, 377 U.S. 533 (1964). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
Carrington v. Rush, 380 U.S. 89 (1965). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
Textile Workers Union v. Darlington, 380 U.S. 263 (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
Griswold v. Connecticut, 381 U.S. 479 (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .206, 221
South Carolina v. Katzenbach, 383 U.S. 301 (1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
Harper v. Virginia Board of Elections, 383 U.S. 663 (1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
Katzenbach v. Morgan, 384 U.S. 641 (1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
Shapiro v. Thompson, 349 U.S. 618 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
Dunn v. Blumstein, 405 U.S. 330 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119, 128, 133, 252
Furman v. Georgia, 408 U.S. 238 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Roe v. Wade, 410 U.S. 113 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38, 196, 197, 206, 221,
222, 223, 224, 226, 227, 228, 236, 241, 244, 245, 246, 247, 254, 255
Doe v. Bolton, 410 U.S. 179 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222
Bigelow v. Virginia, 421 U.S. 809 (1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976) . . . . . . . . . . . . . . . . . 223
Gregg v. Georgia, 428 U.S. 153 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Maher v. Roe, 432 U.S. 464 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
Prunyard Shopping Ctr. v. Robins, 447 U.S. 74 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Harris v. McRae, 448 U.S. 297 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
City of Akron v. Akron Center for Reproductive Health Inc., 462 U.S. 416 (1983) . . . . . . . . . . . 223
Planned Parenthood Association of Kansas City v. Ashcroft, 462 U.S. 476 (1983). . . . . . . . . . . . . 223
Bowers v. Hardwick, 478 U.S. 186 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Lyng v. Auto Workers, 485 U.S. 360 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
Gregory v. Ashcroft, 501 U.S. 452 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Lechmere Inc. v. NLRB, 502 U.S. 527 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
Gade v. National Solid Waste Management Association, 505 U.S. 88 (1992) . . . . . . . . . . . . . . . . 70
Planned Parenthood of South-eastern Pennsylvania v. Casey, 505 U.S. 833 (1992). . . . 224, 225, 227, 255
U.S. Term Limits, Inc. v. Thorton, 514 U.S. 779 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270
Printz v. United States, 521 U.S. 898 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .69, 250
Stenberg v. Carhart, 530 U.S. 914 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
Lawrence v. Texas, 539 U.S. 558 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Yaser E. Hamdi et al v. Donald H. Rumsfeld et al, 542 U.S. 507 (2004) . . . . . . . . . . . . . 52, 70, 71,
72, 73, 74, 75, 76, 77
Salim A. Hamdan v. Donald H. Rumsfeld et al, 548 U.S. 557 (2006) . . . . . . 72, 73, 74, 75, 77, 251
Table of Cases xix
Gonzales v. Carhart, 550 U.S. 124 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
Lakhdar Boumediene et al v. George W. Bush et al, 553 U.S. 723 (2008). . . . . . . 52, 75, 76, 77, 251
New Process Steel v. NLRB, 130 S.Ct. 2635 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
Arizona v. Inter Tribal Council of Arizona, Inc., 570 U.S. __ (2013) . . . . . . . . . . . . . . . . . . . . 120
Shelby County v. Holder, 570 U.S. __ (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120, 132, 262
United States v. Windsor, 570 U.S. __ (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
List of Abbreviations
ADRM American Declaration of the Rights of Man
AG Advocate General
ALI American Law Institute
AUMF Authorization for the Use of Military Forces
CCFSRW Community Charter of Fundamental Social Rights of Workers
CFI Court of First Instance
CFSP Common Foreign and Security Policy
CPFPL Convention on the Participation of Foreigners in Public Life at the Local
Level
CSRT Combatant Status Review Tribunal
EAW European Arrest Warrant
EC European Community
ECHR European Convention on Human Rights
ECI European Citizens’ Initiative
ECJ European Court of Justice
ECommHR European Human Rights Commission
ECSR European Committee of Social Rights
ECtHR European Court of Human Rights
EEC European Economic Community
ERA Employment Relations Act 1999
ESC European Social Charter
EU European Union
GC General Court
HRA Human Rights Act 1998
IACommHR Inter-American Commission on Human Rights
IACtHR Inter-American Court of Human Rights
ICJ International Court of Justice
ILO International Labour Organization
JHA Justice and Home Affairs
NIRA National Industrial Recovery Act
NLRA National Labor Relations Act
NLRB National Labor Relations Board
OFAC Office of Foreign Assets Control
TEC Treaty on the European Community
TEEC Treaty on the European Economic Community
TEU Treaty on the European Union
TFEU Treaty on the Functioning of the European Union
TULCRA Trade Union and Labour Relations (Consolidation) Act 1992
UK United Kingdom
UNSC United Nations Security Council
US United States
VRA Voting Rights Act
Introduction
This book deals with the protection of fundamental rights in Europe. Its purpose is
to analyze the implications that emerge from a multilevel human rights architec-
ture. In the last two decades, the protection of fundamental rights in Europe has
experienced an unprecedented expansion. Human rights are nowadays simultan-
eously entrenched in the constitutional systems of the states, in the legal order of
the European Union (EU), as well as in the framework of the European Conven-
tion on Human Rights (ECHR). A charter of rights has been adopted in each layer
of the European architecture and a plurality of institutions—notably courts—
ensure the active protection of fundamental rights both at the state and the
transnational level in Europe. Yet, what are the consequences of this complex
constitutional architecture? Which dynamics spring from the interaction between
state and transnational human rights laws in Europe?
To answer this question, the book argues that it is necessary to compare the
European multilevel human rights architecture with other multi-layered regimes for
the protection of fundamental rights. The core methodological claim of the book is
that the comparative approach provides the most suitable laboratory to explain the
constitutional dynamics at play in the European multilevel human rights architec-
ture. In particular, on the basis of several structural and normative arguments, the
book maintains that the European multilevel human rights architecture can be
meaningfully compared with the federal system of the United States (US). Drawing
insights from this comparative exercise, the book reconceptualizes the dynamics at
play in the European multi-layered system and advances a model which seeks to
explain in a comprehensive and systematic way the implications of a multilevel
human rights regime.
The book argues that the overlap and interplay between state and transnational
human rights standards generates several recurrent synchronic and diachronic
dynamics. From a synchronic perspective, the European multilevel architecture
creates several challenges. Relevant differences often exist in the degree of protection
accorded to each human right, both at the horizontal level—that is, among the
member states, with some states providing vanguard degrees of protection for a
specific right, and others lagging behind—and at the vertical level—that is, between
state law and supranational law. Due to these differences, the interaction of human
rights standards in the European multilevel system produces tensions. The nature
of these tensions, however, varies depending on whether the standard of protection
of a given human right at the transnational level operates as a ceiling—a maximum
2 Introduction
level of protection that cannot be superseded by state law—or as a floor—a
minimum that can be integrated and enriched by state law.
As I explain, two challenges can therefore be identified in the functioning of the
European human rights architecture. A challenge of ineffectiveness emerges when a
transnational law setting a ceiling of protection for a specific human right interacts
with state laws which ensure a more advanced standard of protection for that right.
In this situation, transnational law challenges the effectiveness of the vanguard
states’ standard and pressures it toward the less protective maximum set at the
transnational level, while leaving the standard in force in the laggard states
unaffected. Conversely, a challenge of inconsistency arises when a transnational
law setting a floor of protection for a specific human right interacts with state laws
which ensure a less advanced standard of protection for that right. In this situation,
transnational law challenges the consistency of the laggard states’ standard and
pressures it toward the more protective minimum set at the transnational level,
while leaving the standard in force in the vanguard states unaffected.
The European architecture also presents, however, important diachronic dynamics.
The system is subject to constant transformations owing to changes and reciprocal
influences between human rights norms and institutions. These transformations
may over time affect the challenges that emerge from the interaction between state
and transnational laws. To this end, the book maps the most relevant judicial and
institutional transformations currently taking place in the European system and
evaluates their impact on the existing challenges of ineffectiveness and inconsistency.
At the same time, because of the evolving nature of the European human rights system
of protection, it is possible to advance additional proposals for reform in specific areas
of human rights law, tailored to address those problematic aspects of the European
human rights regime which are left unanswered by ongoing developments.
To provide empirical backing for these arguments, the book takes into account
four case studies: the right to due process for suspected terrorists, the right to vote
for non-citizens, the right to strike, and the right to abortion. The case studies cover
the four “generations” of rights traditionally identified in constitutional scholarship.
The first deals with a civil right, the second with a political right, the third with a
social right, and the fourth with a so-called “new generation right.” The first and
third case studies provide evidence of the challenge of ineffectiveness, while the
second and the fourth exemplify the challenge of inconsistency. The case studies
address issues that are often controversial. However, by selecting topics such as
counter-terrorism law, migration and voting rights, the right to strike action, and
abortion law, the book considers a number of recent milestone rulings by the
European courts which have been the object of attentive legal and political debate
in Europe.
The empirical chapters of the book follow a common structure. First, I outline
how the standard of protection of each specific right varies significantly between
EU member states. Second, I examine the growing impact of EU and ECHR law in
the field and explain how the interaction between state and transnational law has
revealed a challenge of either ineffectiveness or inconsistency in Europe. Third, by
adopting a comparative perspective, I highlight how analogous dynamics have
Introduction 3
emerged in the federal system for the protection of fundamental rights of the US
and underline how the US example proves that multi-layered systems are endowed
with internal mechanisms to face these challenges successfully, and over time
enhance the protection of fundamental rights. In light of this, I explore the more
recent jurisprudential and institutional transformations taking place in Europe,
and, finally, I discuss what the future prospects for the protection of each of these
specific rights in Europe could or should be.
Overall, the content of the book is analytical rather than normative. This
is, in fact, a study in comparative constitutional law and not in legal or political
theory. By bridging the gap between European constitutional law and comparative
constitutional law, this work aims to enhance the scientific understanding of the
European multilevel system for the protection of fundamental rights. Nevertheless,
on the basis of the analytical framework it develops and tests in the four case
studies, the book reconsiders the mainstream normative accounts of the protection
of fundamental rights in the European multilevel system and underlines how both
the sovereigntist and pluralist visions prevailing in European legal scholarship are
insufficient. As an alternative, the book indicates what are the key dilemmas that
a theory on the protection of fundamental rights in the European multilevel
architecture ought to address and offers some concluding arguments on why such
a theory would inevitably fit a “federal” vision. As I will emphasize, a new theory for
the protection of fundamental rights in the European multilevel human rights
architecture would need to face squarely the dilemmas of identity, equality, and
supremacy. The only theory that has been so far able to reconcile these three
contradictory claims has been the theory of federalism, as distinct from the theory
of the federal state. The challenge for European constitutional scholarship is to
develop a new federal vision—a “neo-federal” theory—which is able to frame
the dilemmas behind the European multilevel architecture for the protection of
human rights.
The book is structured as follows. Chapter 1 introduces the European multilevel
human rights architecture, advances a comparison with the US federal system, and
proposes an analytical model for the examination of the challenges and transform-
ations at play in the European human rights regime. Each of the four subsequent
chapters analyzes in detail one of the case studies: Chapter 2 considers the right to due
process for suspected terrorists, Chapter 3 the right to vote for non-citizens, Chapter 4
the right to strike, and Chapter 5 the right to abortion. Finally, Chapter 6 compares
the four case studies, identifies a number of recurrent patterns, and, on that basis,
questions the normative prescriptions of the existing scholarly theories suggesting
how to move toward the foundation of a “neo-federal” theory on the protection of
fundamental rights in Europe.
1
Of Floors, Ceilings, and Human Rights:
The European Fundamental Rights
Architecture in Comparative Perspective
1. Introduction
Europe is endowed with one of the most sophisticated systems for the protection of
fundamental rights worldwide. At the height of two decades of unprecedented
transformations, the European human rights architecture is today characterized by
the existence of three layers of norms and institutions which overlap and intertwine
to ensure an advanced degree of protection of fundamental rights and liberties.
Human rights are proclaimed in the constitutions of the states, in the law of the
European Union (EU) and in the European Convention on Human Rights
(ECHR). At the same time, institutions charged with protecting and vindicating
human rights—notably courts empowered to exercise judicial review—have been
set up in each layer of this multilevel system. What are the implications of this
complex human rights architecture? The research question that this book attempts
to address is that of examining which constitutional dynamics arise in the protec-
tion of fundamental rights in Europe from the overlap and interplay between
different layers of human rights norms and institutions.
The constitutional transformations that the European human rights architecture
has recently undergone—and particularly the expansion of the machinery for the
protection of human rights at the transnational level—have challenged conventional
approaches to the study of fundamental rights in Europe. The more traditional
constitutional scholarship, framed in the theory of sovereignty, has reacted to these
transformations defensively, interpreting the emergence of layers of human rights
protection beyond the state as a threat to pre-existing state regimes. However, because
of its negative prejudices, this vision has proved inadequate to explain the dynamics at
play in a multilevel constitutional system and has been increasingly challenged by a
new pluralist perspective, which has emphasized instead the added value of a multi-
layered architecture of human rights protection. Yet, by idealizing the functioning of
the European multi-layered human rights regime, also the pluralist vision has been
unable to offer a comprehensive and persuasive account of the complex implications
produced by the interaction between multiple human rights standards in Europe. To
a large extent, the European human rights architecture still remains a puzzling object.
Introduction 5
This book seeks to go beyond the existing literature and answer the question
by adopting a comparative perspective. In particular, the book argues that to
understand the constitutional dynamics at play in the European multilevel
human rights architecture, it is methodologically necessary to compare it with
other multi-layered regimes for the protection of fundamental rights. This chapter,
therefore, frames the contours of a comparative perspective of the study of the
protection of fundamental rights in Europe and provides reasons for this choice.
Recourse to the comparative method for the purpose of studying the European
multilevel human rights architecture may appear innovative but, in fact, it is an
inevitable choice. As the late European University Institute professor Mauro
Cappelletti used to remind us, comparative law is the only laboratory in which
lawyers can verify or falsify the appropriateness of their theories.1 The comparative
method is therefore the only instrument capable of yielding convincing analytical
results in an attempt to answer the research question concerning the constitutional
dynamics currently at play in the European human rights architecture.
As a comparative perspective underlines, the European human rights architecture
is not a unique, sui generis arrangement. Rather—following a most-similar cases (or,
it could be said: a least-different cases) strategy of comparison—this chapter will
maintain that the European multilevel system presents several structural and norma-
tive analogies with the federal system for the protection of fundamental rights of the
United States (US). First, in the US, as in Europe, fundamental rights are codified in
a multiplicity of binding Bills of Rights, enshrined in both state and federal consti-
tutions. Secondly, in the US, as in Europe, there is a plurality of institutions for the
protection of rights—especially owing to the existence of several separate orders of
jurisdiction, both at the state and federal levels, which are empowered to exercise
judicial review. And thirdly, in the US, as in Europe, a plurality of views on the nature
and meaning of human rights have historically emerged, and have been reflected in
the enduring tension between uniformity and diversity in the protection of funda-
mental rights.
By comparing the European multilevel architecture with the US federal system,
this chapter attempts to draw several insights which are helpful to reconceptualize
the dynamics at play in the European multi-layered regime. By looking at the
practice and theory of the US federal system, in particular, the chapter underlines
how in a regime characterized by multiple standards for the protection of funda-
mental rights, variations may exist both at the horizontal level (between the
member states) and at the vertical level (between the member states and supra-
national institutions). Moreover, the chapter suggests that the interaction between
different state and supranational standards is influenced both by the degree of
protection offered by either the state or the supranational institution to any given
right, as much as by the nature of the supranational standard: in some cases, in fact,
supranational law operates as a floor of protection, while in others it functions as a
ceiling—hence, producing diverging constraints on, or opportunities for, the
1 See Mauro Cappelletti, Il controllo giudiziario di costituzionalità delle leggi nel diritto comparato
(Giuffrè 1972).
6 Of Floors, Ceilings, and Human Rights
member states. At the same time, the chapter emphasizes how the interaction
between state and supranational standards in a multi-layered regime is subject to
changes over time, due to adaptations and reforms in each of the layers of the
multilevel architecture.
On the basis of these comparative insights, the chapter develops as a hypothesis
an analytical model of the constitutional dynamics at play in the European
multilevel system. This model rationalizes the forces operating in the system in
two dimensions: one synchronic and the other diachronic. According to the former,
the model identifies several challenges that arise in specific human rights sectors
from the interaction between different state laws and transnational law. According
to the second dimension, the model identifies several transformations taking place in
the European multilevel system which are capable, effectively or potentially, of
addressing the critical dynamics that can be identified in the functioning of the
European architecture. By including a comprehensive assessment of horizontal
variations, vertical interactions, and diachronic developments, the model offers a
complete explanatory and predictive framework for the complex constitutional
dynamics at play in the European multilevel human rights architecture—which is
then subject to testing and validation in subsequent chapters.
The chapter is structured as follows. Section 2 outlines the main features of the
European multilevel human rights architecture and underlines the most important
constitutional developments that have taken place in the protection of fundamental
rights over the last two decades. Section 3 reviews the literature on the protection of
fundamental rights in Europe and explains why it appears inadequate to make sense
of the complexities of the European human rights regime. Section 4 establishes the
contours of a comparative perspective on the protection of fundamental rights in
the European multilevel system and provides reasons why the European architec-
ture can be compared with the US federal system. Section 5 compares the two
regimes and draws from this exploration analytical insights to recast the constitu-
tional dynamics in a multi-layered regime. In section 6 I design a comprehensive
analytical framework for the study of fundamental rights in Europe. Here, I map
the synchronic and diachronic dynamics at play in the European system, define the
challenges emerging from the interaction between state and supranational law,
and outline the transformations in action in the European system. Finally, section 7
summarizes the structure of the book and clarifies how the analytical model
developed in this chapter will be put to test in the following chapters.
2 In this work I will often refer to Europe, rather than simply to the EU, in order also to include in
the analysis the ECHR as a third constitutional layer for the protection of fundamental rights. On the
multilevel nature of the European constitutional system, comprising the member states, the EU, and
The European multilevel architecture 7
the ECHR, see the works of Ingolf Pernice: “Multilevel Constitutionalism in the European Union”
(2002) 27 European Law Review 511 and “The Treaty of Lisbon: Multilevel Constitutionalism in
Action” (2009) 15 Columbia Journal of European Law 349.
3 On the European multilevel system for the protection of fundamental rights, see esp Marta
Cartabia, “L’ora dei diritti fondamentali nell’Unione Europea” in Marta Cartabia (ed), I diritti in
azione (Il Mulino 2007) 13 and Aida Torres Pérez, Conflicts of Rights in the European Union: A Theory
of Supranational Adjudication (OUP 2009) ch 2.
4 Alec Stone Sweet, Governing with Judges: Constitutional Politics in Europe (OUP 2000); Martin
Shapiro, “Rights in the European Union: Convergent with the USA?” in Nicolas Jabko and Craig
Parsons (eds), The State of the EU (Volume 7): With US or Against US? European Trends in American
Perspective (OUP 2005) 378.
5 See Hans Rupp, “Judicial Review in the Federal Republic of Germany” (1960) 9 American
Journal of Comparative Law 29 (on Germany) and Alessandro Pizzorusso, “Italian and American
Models of the Judiciary and of Judicial Review of Legislation: A Comparison of Recent Tendencies”
(1990) 38 American Journal of Comparative Law 373 (on Italy).
6 See Victor Ferreres Comella, “The Spanish Constitutional Court: Time for Reforms” (2008) 3
Journal of Comparative Law 22 (on Spain); Philippe Schmitter, Portugal: Do autoritarismo à democracia
(Imprensa de Ciências Sociais 1999) (on Portugal).
7 See Wojciech Sadurski, Rights Before Courts: A Study of Constitutional Courts in Post communist
States of Central and Eastern Europe (Springer 2005); Giuseppe De Vergottini, Le transizioni costitu-
zionali (Il Mulino 1998).
8 See Hans Kelsen, “La garantie juridictionnelle de la Constitution (La justice constitutionnelle)”
[1928] Revue Droit Public 197. On the introduction of constitutional review of legislation in Europe
compared with the US experience, see Michel Rosenfeld, “Constitutional Adjudication in Europe and
the United States: Paradoxes and Contrasts” (2004) 2 International Journal of Constitutional Law 633.
9 For a general overview, see Valerio Onida, La Costituzione (Il Mulino 2004).
10 See Aldo Sandulli, “La giustizia” in Sabino Cassese (ed), Istituzioni di diritto amministrativo
11 On the role of the Constitutional Court, see Enzo Cheli, Il giudice delle leggi (Il Mulino 1996)
and, for a recent account, Tania Groppi, “The Italian Constitutional Court: Towards a ‘Multilevel
System’ of Constitutional Review?” (2008) 3 Journal of Comparative Law 101.
12 On the protection of fundamental rights in the Italian legal system, see Augusto Barbera et al, “Le
situazioni soggettive. Le libertà dei singoli e delle formazioni sociali. Il principio di uguaglianza” in
Giuliano Amato and Augusto Barbera (eds), Manuale di diritto pubblico (Il Mulino 1991) 117 and
Gustavo Zagrebelsky, La legge e la sua giustizia (Il Mulino 2008).
13 On the protection of fundamental rights in the German constitutional system, see Donald
Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (Duke UP 1997).
14 For an assessment of the reform introduced by the Loi constitutionnelle no. 2008–724, J.O.R.F.,
24 juillet 2008, p. 11890 (Fr.), compare Federico Fabbrini, “Kelsen in Paris: France’s Constitutional
Reform and the Introduction of A Posteriori Constitutional Review of Legislation” (2008) 9 German Law
Journal 1297 with François-Xavier Millet, “L’exception d’inconstitutionnalité en France ou l’impossibi-
lité du souhaitable” [2008] Revue du droit public 1445.
15 The discovery of a binding Bill of Rights in the Preamble to the 1958 Constitution had already
been accomplished by the Conseil Constitutionnel in Décision 71–44 DC. See Alec Stone Sweet, The
Birth of Judicial Politics in France: The Constitutional Council in Comparative Perspective (OUP 1992);
Louis Favoreu and Louis Philip, Les grandes décisions du Conseil constitutionnel (Dalloz 2005) 177.
16 See Gerhard Van der Schyff, “Constitutional Review by the Judiciary in the Netherlands:
1947).
18 On the UK Human Rights Act 1998, 46 Eliz. 2, c. 42 (Eng.), see Douglas Vick, “The Human
Rights Act and the British Constitution” (2002) 37 Texas International Law Journal 329. See also
Peter Leyland, “Human Rights Act 1998: Riportare i diritti a casa?” [2000] Quaderni Costituzionali 83
(explaining that the decision to incorporate the ECHR into domestic law was inspired by the will to
“bring fundamental rights home”).
The European multilevel architecture 9
19 For a more detailed explanation of the effect of a so-called “declaration of incompatibility,” see
Andrew Clapham, “The European Convention on Human Rights in the British Courts: Problems
Associated with the Incorporation of International Human Rights” in Philip Alston (ed), Promoting
Human Rights Through Bills of Rights (OUP 1999) 233; Richard Gordon and Tim Ward, Judicial
Review and the Human Rights Act (Routledge 2001).
20 On the rise of human rights-based judicial review in the Scandinavian countries, see Joakim
Nergelius, “Judicial Review in Swedish Law. A Critical Analysis” (2009) 78 Nordic Journal of Human
Rights 142 (on Sweden); Tuomas Ojanen, “From Constitutional Periphery Toward the Centre:
Transformations of Judicial Review in Finland” (2009) 78 Nordic Journal of Human Rights 194
(on Finland).
21 Bruno de Witte, “The Past and the Future Role of the European Court of Justice in the
Protection of Human Rights” in Philip Alston et al. (eds), The EU and Human Rights (OUP
1999) 859.
22 But see Gráinne de Búrca, “The Road Not Taken: The European Union as a Global Human
Rights Actor” (2011) 105 American Journal of International Law 649 (explaining that human rights
represented a fundamental pillar of the project to establish a European Political Community discussed
in 1952–53 but that, after the rejection of the European Defence Community Treaty by France in
1954, the founding member states decided to pursue a path toward integration focused on economic
issues, in which human rights were not specifically considered).
23 Case 29/69 Stauder [1969] ECR 419; Case 11/70 Internationale Handelsgesellschaft [1970] ECR
1125; Case 4/73 Nold [1974] ECR 491. See José N. Cunha Rodriguez, “The Incorporation of
Fundamental Rights in the Community Legal Order” in Miguel Poiares Maduro and Loïc Azoulai
(eds), The Past and Future of EU Law. The Classics of EU Law Revisited on the 50th Anniversary of the
Rome Treaty (Hart Publishing 2010) 89. See also Takis Tridimas, The General Principles of EU Law
(OUP 2007) 298.
24 C. Cost n. 183/1973 Frontini (holding that the supremacy of EU law cannot extend to the point
of undermining the protection of state constitutional rights); BVerfGE 37, 271 (1974) Solange I
(same).
25 Jurgen Kühling, “Fundamental Rights” in Armin von Bogdandy and Jurgen Bast (eds), Principles
of European Constitutional Law (Hart Publishing 2006) 501; Frank Schimmelfennig, “Competition
and Community: Constitutional Courts, Rhetorical Action and the Institutionalization of Human
Rights in the European Union” in Berthold Rittberger and Frank Schimmelfennig (eds), The
Constitutionalization of the European Union (Routledge 2007) 100.
26 Brun-Otto Bryde, “The ECJ’s Fundamental Rights Jurisprudence—A Milestone in Trans-
national Constitutionalism” in Miguel Poiares Maduro and Loïc Azoulai (eds), The Past and Future
10 Of Floors, Ceilings, and Human Rights
identified an unwritten catalogue of fundamental rights in the general principles
of EEC law, the protection of human rights was still very much underdeveloped
in the legal systems of the member states. In addition, the rise of a fundamental
rights jurisprudence at the EU level predates the Solange decisions of the national
constitutional courts—whose concern for fundamental rights has therefore
been described by some as “a disguise for the opposition to supranational power
as such.”27
Be that as it may, the results of the ECJ’s jurisprudence were later codified in
Article F of the Treaty on European Union (TEU) signed in Maastricht (afterward
renumbered as Art 6 TEU by the Amsterdam Treaty), which recognized that the
EU respects fundamental rights as guaranteed by the ECHR and as resulting from
the constitutional traditions common to the member states.28 The ECJ, through
direct recourse or preliminary references, ensures that fundamental rights are
complied with by the EU institutions as well as the member states when they
implement EU law or when they restrict the exercise of one of the common market
freedoms.29 The Amsterdam Treaty also set up a political mechanism (later refined
by the Nice Treaty) in Article 7 TEU to ensure member states’ compliance with EU
fundamental rights.30 Then, in 2000, a Bill of Rights for the EU31—the Charter of
Fundamental Rights (Charter)—was drafted and solemnly proclaimed by the EU
institutions.32 Conceived as a restatement of the general principles of EU funda-
mental rights law, but in fact quite innovative in many respects, the Charter was
soon—despite its non-binding status—actively used by EU (and national) courts as
an advanced instrument for the protection of fundamental rights.33 Furthermore,
since the entry into force of the Lisbon Treaty in December 2009, the Charter has
acquired the same legal value as the EU Treaties and binds the EU institutions and
member states when their action falls under the scope of application of EU law.34
of EU Law. The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (Hart
Publishing 2010) 119, 122.
27 Bryde (n 26) 121, quoting Hans Peter Ipsen, Europäisches Gemeinschaftsrecht (Mohr 1972) 716.
28 Armin von Bogdandy, “The European Union as a Human Rights Organization? Human Rights
at the Core of the European Union” (2000) 37 Common Market Law Review 1307.
29 Case 5/88 Wachauf [1989] ECR 2609; Case C-260/89 ERT [1991] ECR I-2925. See Zdenek
Kühn, “Wachauf and ERT: On the Road from the Centralized to the Decentralized System of Judicial
Review” in Miguel Poiares Maduro and Loïc Azoulai (eds), The Past and Future of EU Law. The Classics
of EU Law Revisited on the 50th Anniversary of the Rome Treaty (Hart Publishing 2010) 151.
30 See Wojciech Sadurski, “Adding Bite to Bark: The Story of Article 7, E.U. Enlargement, and
8 Maastricht Journal of European and Comparative Law 90; Piet Eeckhout, “The EU Charter of
Fundamental Rights and the Federal Question” (2002) 39 Common Market Law Review 945.
34 On the impact of the Lisbon Treaty on the protection of fundamental rights in the EU system,
see Marta Cartabia, “I diritti fondamentali e la cittadinanza dell’Unione” in Franco Bassanini and
The European multilevel architecture 11
At the international level, finally the ECHR has acquired key significance as a
constitutional source for the protection of basic civil and political rights throughout
Europe.35 The ECHR was adopted in Rome in 1950 by the states parties to the
Council of Europe and was later integrated through several additional protocols.
As membership of the ECHR steadily expanded to the countries of Central and
Eastern Europe in the late 1990s, the institutional devices for the protection of
fundamental rights were refined and the role of the European Court of Human
Rights (ECtHR) was greatly enhanced.36 In particular, since the enactment of the
11th Additional Protocol to the ECHR in 1998, the ressortissants of signatory
states have been able to commence legal proceedings before the ECtHR when they
believe that an individual right proclaimed in the ECHR has been unlawfully
breached by their state, and they have unsuccessfully exhausted all national rem-
edies. In addition, they can receive damages if the state is found guilty of the
breach.37 The ECtHR, therefore, exercises an external and subsidiary review of
the national systems of fundamental rights protection by remedying potential
violations at the state level.38 The success of the ECHR review machinery, however,
is such that the ECtHR has been literally flooded by individual applications over
the last decade. As a result, additional reforms to the ECHR were introduced in
2010 with the enactment of the 14th Protocol aiming to enhance the capacity of
the ECtHR to cope with its soaring caseload.39
The ECHR is not the only human rights treaty to have been adopted at the
international level in Europe: within the framework of the Council of Europe,
Giulia Tiberi (eds), Le nuove istituzioni europee: Commento al Trattato di Lisbona (Il Mulino 2008) 81;
Michael Dougan, “The Treaty of Lisbon 2007: Winning Minds, Not Hearts” (2008) 45 Common
Market Law Review 617.
35 As argued by Alec Stone Sweet, “Sur la constitutionnalisation de la Convention européenne des
droits de l’homme” (2009) 80 Revue trimestrielle des droits de l’homme 923, the ECHR, despite its
treaty-like nature, has undergone tremendous transformations in recent years and may today be
counted as a trans-European constitution. In particular, the existence of a strong court such as the
ECtHR, able to condemn contracting parties for human rights violations and having (since 1998)
compulsory jurisdiction over claims brought by private individuals, has had a major role in enhancing
the ECHR. This distinguishes the ECHR from other international human rights regimes (established
by treaties adopted within the framework of the Council of Europe or the United Nations) which,
despite their normative relevance, still lack strong adjudicatory and enforcement mechanisms and thus
have a more limited capacity to influence the legal systems of their member (and non-member) states.
36 Robert Harmsen, “The Transformation of the ECHR Legal Order and the Post-Enlargement
Challenges Facing the European Court of Human Rights” in Giuseppe Martinico and Oreste Pollicino
(eds), The National Judicial Treatment of ECHR and EU Laws. A Comparative Constitutional Perspective
(Europa Law Publishing 2010) 27.
37 See ECHR Arts 34 (right to individual application) and 41 (right to just satisfaction for the
injured party). See also Antonio Bultrini, “Il meccanismo di protezione dei diritti fondamentali istituito
dalla Convenzione europea dei diritti dell’uomo. Cenni introduttivi” in Bruno Nascimbene (ed), La
Convenzione europea dei diritti dell’uomo. Profili ed effetti nell’ordinamento italiano (Giuffrè 2002) 20.
38 Palmina Tanzarella, “Il margine di apprezzamento” in Marta Cartabia (ed), I diritti in azione (Il
Mulino 2007) 145, 150; Ernst-Ulrich Petersmann, “Human Rights, International Economic Law and
‘Constitutional Justice’ ” (2008) 19 European Journal of International Law 769, 777.
39 See Lucius Caflish, “The Reform of the European Court of Human Rights: Protocol No. 14 and
Beyond” (2006) 6 Human Rights Law Review 403. The need for new reforms in the machinery of the
ECHR has recently also been voiced in the Final Declaration of the High Level Conference on the
Future of the ECtHR, Brighton, 19–20 April 2012.
12 Of Floors, Ceilings, and Human Rights
specific agreements—such as the European Social Charter and the Convention for
the Participation of Foreigners in Public Life at the Local Level—have been enacted
to enhance, among others, the protection of social and political rights. Neverthe-
less, the ECHR plays a peculiar influence on the protection of fundamental rights
in the EU member states.40 The constitutional role of the ECtHR41 creates an
incentive for national courts to take the ECHR into account in domestic adjudi-
cation, even in those member states where the ECHR is not incorporated into
the national legal order with the status of a constitutional text.42 In addition, in
several European countries the ECHR has de facto become the common instru-
ment by which ordinary courts exercise judicial review of national legislation:
indeed, in many European jurisdictions, when a national statute is found to be
incompatible with the rights enshrined in the ECHR, ordinary courts are able to
disapply the national Act—even where the constitution prohibits courts from
reviewing the constitutionality of Acts of Parliament.43
As this brief description shows, over the past two decades the protection of
fundamental rights has blossomed in Europe. Fundamental rights are now pro-
claimed in national constitutions, in the ECHR, as well as in the TEU (which
defines the constitutional traditions common to the member states and the ECHR
as general principles of EU law). Moreover, since the entry into force of the Lisbon
Treaty, they have been codified in the Charter which has the same legal status as
the EU Treaties. National courts (both ordinary judges and constitutional courts),
the EU courts (the ECJ and the Court of First Instance, now renamed the General
Court), as well as the ECtHR provide judicial remedies against infringements
of rights.
40 See Alec Stone Sweet and Helen Keller, “The Reception of the ECHR in National Legal Orders”
in Helen Keller and Alec Stone Sweet (eds), A Europe of Rights (OUP 2008) 3; Giuseppe Franco
Ferrari, “National Judges and Supranational Laws. On the Effective Application of EU Law and
ECHR” in Giuseppe Martinico and Oreste Pollicino (eds), The National Judicial Treatment of ECHR
and EU Laws. A Comparative Constitutional Perspective (Europa Law Publishing 2010) 21.
41 Compare Jean Francois Flauss, “La Cour européenne des droit de l’homme est-elle une Cour
constitutionnelle?” [1998] Revue française de droit constitutionnel 711 with Luzius Wildhaber,
“A Constitutional Future for the European Court of Human Rights?” (2002) 23 Human Rights
Law Review 161.
42 A paradigmatic example of what is argued here is represented by Italy. See Corte Costituzionale—
C. Cost n. 348/2007 and n. 349/2007 (ruling that the ECHR—despite having infra-constitutional status
in the Italian legal system—will be utilized as a source to integrate the Constitution, i.e. as one of the
benchmarks on the basis of which national legislation is reviewed). See Diletta Tega, “Le sentenze della
Corte costituzionale nn. 348 e 349 del 2007: la CEDU da fonte ordinaria a fonte ‘sub-costituzionale’ del
diritto” [2008] Quaderni Costituzionali 133 and Oreste Pollicino, “Constitutional Court at the Cross-
roads between Constitutional Parochialism and Co-operative Constitutionalism” (2008) 4 European
Constitutional Law Review 363. See also Joel Andriantsimbazovina, “La prise en compte de la Conven-
tion européenne des droits de l’homme par le Conseil Constitutionnel” (2004) 18 Cahier du Conseil
Constitutionnel 148 (on France); Angel Rodrìguez, “Los efectos internos de las resoluciones del Tribunal
europeo de derechos humanos y la vinculacion del juez español a su jurisprudencia” (2001–02) 8–9
Teoria y realidad constitucional 201 (on Spain).
43 See Olivier Dutheillet de Lamothe, “Contrôle de constitutionnalité et contrôle de convention-
nalité” in Mélanges Labetoulle (Dalloz 2007) 315 (on France) and Elaine Mak, “Report on the
Netherlands and Luxemburg” in Giuseppe Martinico and Oreste Pollicino (eds), The National Judicial
Treatment of ECHR and EU Laws. A Comparative Constitutional Perspective (Europa Law Publishing
2010) 301 (on the Netherlands and Luxembourg).
The European multilevel architecture 13
44 See Ingolf Pernice and Ralf Kanitz, “Fundamental Rights and Multilevel Constitutionalism in
Europe” (2004) Walter Hallstein-Institute Paper 7, repr. in Deirdre Curtin et al (eds), The Emerging
Constitution of the European Union (OUP 2004); Giovanni Guzzetta, “Garanzia multilivello dei diritti
e dialogo tra le Corti nella prospettiva di un Bill of Rights europeo” in Antonio d’Atena et al (eds),
Tutela dei diritti fondamentali e costituzionalismo multilivello. Tra Europa e Stati nazionali (Giuffrè
2004) 155.
45 Bruce Ackerman, “Prologue: Hope and Fear in Constitutional Law” in Erik O. Eriksen et al
(eds), Developing a Constitution for Europe (Routledge 2004) 12 (speaking of a “constitutionalism based
on fear”).
46 See Andrew Moravcsik, “The Origins of Human Rights Regimes: Democratic Delegation in
Postwar Europe” (2000) 54 International Organization 217; Stephen Gardbaum, “Human Rights and
International Constitutionalism” in Jeffrey Dunoff and Joel Trachtman (eds), Ruling the World:
Constitutionalism, International Law and Global Governance (CUP 2009) 233. See also Joseph
H. H. Weiler and Marlene Wind (eds), European Constitutionalism Beyond the State (CUP 2004).
47 See Wojciech Sadurski, “Partnering with Strasbourg: Constitutionalisation of the European
Court of Human Rights, the Accession of Central and East European States to the Council of Europe,
and the Idea of Pilot Judgments” (2009) 9 Human Rights Law Review 397.
48 See Tony Joris and Jan Vandenberghe, “The Council of Europe and the European Union:
2009) (recalling how the EEC Treaty was adopted by the founding member states after the failure of
the European Defence Community in 1954 but how, at that time, the creation of an integrated
economic system was clearly intended to be a functional step in the construction of an integrated
political system in which, presumably, fundamental rights would have some role).
50 This argument has been emphasized especially by Jürgen Habermas, “Why Europe Needs a
European Human Rights Acquis” (2006) 43 Common Market Law Review 629; Federico Fabbrini, “Il
giudizio della Corte Europea dei Diritti dell’Uomo sugli atti di Comunità ed Unione Europea” in Luca
Mezzetti and Andrea Morrone (eds), Lo strumento costituzionale dell’ordine pubblico europeo (Giappi-
chelli 2011) 519.
55 Torres Pérez (n 3) 12.
“Sovereigntism” vs. “Pluralism” 15
56 See ceteris paribus Giuliano Amato, “Conclusion: Future Prospects for a European Constitution”
in Giuliano Amato et al (eds), Genesis and Destiny of the European Constitution (Bruylant 2007) 1271,
1276–7 (discussing how transformations occurring at the European level have blurred the traditional
divide between international law and domestic law, giving rise to a hybrid interaction between the
norms of the two level).
57 Note that I am referring in this section to theories about the relationship between rights at the
national and supranational level, not about theories on fundamental rights per se. For influential
examples of the latter, see Robert Alexy, A Theory of Constitutional Rights (Julian Rivers trans., OUP
2010) and Ronald Dworkin, Taking Rights Seriously (Harvard UP 1978).
58 Compare Paul Kirchhof, “Der deutsche Staat im Prozeß der europäischen Integration” in Josef
Insensee and Paul Kirchhof (eds), Handbuch des Staatsrechts der Bundesrepublik Deutschland, Vol. VII
(C. F. Müller Verlag 1992) 855 with Ingolf Pernice, “Bestandssicherung der Verfassungen: Verfas-
sungsrechtliche Mechanismen zur Wahrung der Verfassungsordnung” in Roland Bieber and Pierre
Widmer (eds), The European Constitutional Area (Schultess 1995). See also Joseph H. H. Weiler, The
Constitution of Europe (CUP 1999).
59 See e.g., Diarmuid Rossa Phelan, “Right to Life of the Unborn v Promotion of Trade in Services:
The European Court of Justice and the Normative Shaping of the European Union” (1992) 55
Modern Law Review 670, 686 (criticizing the “intrusive structure and techniques of EC law . . . vis-à-
vis a Member States’s constitutional law” in the area of abortion); Alain Supiot, “Conclusion: Europe’s
Awakening” in Marie-Ange Moreau (ed), Before and After the Economic Crisis: What Implications for the
“European Social Model ”? (Edward Elgar 2011) 292, 296 (criticizing the case law of the ECJ in the field
16 Of Floors, Ceilings, and Human Rights
of fundamental rights constituted a primary function of the state, which exercised it
within the framework of the constitution, through the action of its democratically
elected Parliament, or through the activities of its courts: the rise of a multilevel
architecture of human right protections has therefore been perceived skeptically as a
development bound to lower existing protections or upset (more or less) consoli-
dated human right arrangements already in force at the state level.60 In this vein, it
has been stressed that because the protection of fundamental rights and the exercise
of sovereignty are but two sides of the same coin,61 the development of human
rights at the transnational level jeopardizes domestic standards and conceptions of
rights, and limits the capacity of the state to decide about the scope of protection to
be granted to certain rights or liberties through its legitimate constitutional and
democratic processes.62 Similarly, the decisions of supranational human rights
bodies have been criticized for their tendency to provide final settlement of a case
and have been contrasted instead with the capacity of national courts to develop
autonomous domestic conceptions of fundamental rights linked to distinct national
conditions.63
Due to their emphasis on the centrality of state institutions in the protection of
fundamental rights, these analyses share at their root a common “sovereigntist”
narrative. These scholarly positions, in fact, reflect in the field of fundamental rights
the broader theoretical assumption that constitutionalism can only be meaningful
within the framework of the sovereign state, “largely reject[ing] the changes
brought about by postnational governance and seek[ing] to limit their impact.”64
As Bruno de Witte has explained, the theory of sovereignty, as a centerpiece of legal
thinking, continues to have an enduring influence on European legal culture.65 As
it is well known, the theory of sovereignty finds its origin in late Middle Ages political
theory.66 Yet, it was specifically in the 19th century that sovereignty became a
hallmark of constitutional law doctrines. In the British context, in particular, the
long-standing tradition of the “Sovereignty of Parliament” was reconceptualized by
of social rights for “deconstructing national social rights” and advocating a form of judicial resistance to
the decisions of the ECJ by the state supreme and constitutional courts).
60 I draw the notion of skepticism from Louis Favoreu, “L’euroscepticisme du droit constitution-
nel” in Hélène Gaudin (ed), Droit constitutionnel. Droit communautaire. Vers un respect réciproque
mutuel? (Économica 2001) 379.
61 See Massimo Luciani, “Costituzionalismo irenico e costituzionalismo polemico” [2012] Giu-
risprudenza Costituzionale 1643, 1658 (asking polemically, “Who is the owner of sovereignty? Who
protects fundamental rights?” (my translation: “Chi è il titolare della sovranità? Chi tutela i diritti
fondamentali?”)).
62 Luciani (n 61) 1661.
63 Brenda Hale, “Argentorarum Locutum: Is Strasbourg or the Supreme Court Supreme?” (2012) 12
Human Rights Law Review 65, 78 (reclaiming room for the British courts “to develop a distinctively
British human rights jurisprudence without overstepping the boundaries [of] Parliament”).
64 Nico Krisch, Beyond Constitutionalism: The Pluralist Structure of Postnational Law (OUP
2010) 14.
65 Bruno de Witte, “Sovereignty and European Integration: The Weight of Legal Tradition” in
Anne-Marie Slaughter et al (eds), The European Courts and National Courts: Doctrine and Jurisprudence
(Hart Publishing 1998) 277.
66 See Ernst Kantorowicz, The King’s Two Bodies: A Study in Medioeval Political Theology (Princeton
UP 1957).
“Sovereigntism” vs. “Pluralism” 17
67 Albert Venn Dicey, An Introduction to the Study of the Law of the Constitution (8th ed Liberty
Classics 1915).
68 Pavlos Eleftheriadis, “Parliamentary Sovereignty and the Constitution” (2009) 22 Canadian
von Gerber, Ueber öffentliche Rechte (H. Laupp 1852), Paul Laband, Das Staatsrecht des Deutschen
Reiches (Mohr 1895), and Vittorio Emanuele Orlando, Diritto pubblico generale (Giuffrè 1940).
70 Giorgio Bongiovanni, “Introduzione” in Giorgio Bongiovanni (ed), Georg Jellinek, La Dichiar-
Act 2011, 59 Eliz. 2 c. 12 (Eng.), s 18 of which (the so-called “sovereignty clause”) states that “Directly
applicable or directly effective EU law (that is, the rights, powers, liabilities, obligations, restrictions,
remedies and procedures referred to in s 2(1) of the European Communities Act 1972) falls to be
recognised and available in law in the UK only by virtue of that Act or where it is required to be recognised
and available in law by virtue of any other Act.” For a critical assessment of this piece of legislation, see
Paul Craig, “The European Union Act 2011. Locks, Limits and Legality” (2011) 48 Common Market
Law Review 1915.
72 However, whether the principle of the “sovereignty of Parliament” continues to be viable in the
UK after accession to the EU and the incorporation of the ECHR has been called into question. See
Nick Barber, “The Afterlife of Parliamentary Sovereignty” (2011) 9 International Journal of Consti-
tutional Law 144.
73 See Christoph Möllers, “ ‘We are (Afraid of) the People’: Constituent Power in German
Constitutionalism” in Martin Loughlin and Neil Walker (eds), The Paradox of Constitutionalism:
Constituent Power and Constitutional Form (OUP 2007) 87.
74 For a discussion of whether the concept of sovereignty continues to be viable today in continental
Europe, compare Sabino Cassese, “L’erosione dello Stato: una vicenda irreversibile?” in Sabino Cassese,
La crisi dello Stato (Laterza 2002) 44 with Michel Troper, “The Survival of Sovereignty” in Hent
Kalmo and Quentin Skinner (eds), Sovereignty in Fragments—The Past, Present and Future of a
Contested Concept (CUP 2010) 132.
18 Of Floors, Ceilings, and Human Rights
in its Lissabon Urteil.75 In this decision, albeit in the end upholding the constitu-
tionality of the German legislation ratifying the Lisbon Treaty, the court remarked,
inter alia, that:
Even after the entry into force of the Treaty of Lisbon, the Federal Republic of Germany will
remain a sovereign state and thus a subject of international law. The substance of German
state authority, including the constituent power, is protected, the German state territory
remains assigned only to the Federal Republic of Germany, [and] there are no doubts
concerning the continued existence of the German state people.76
This sovereigntist understanding continues to shape European discourse on fun-
damental rights. While a strong plea for national sovereignty in the definition of
fundamental rights was recently made by the British House of Commons in
response to a contentious decision by the ECtHR77 condemning the UK for failing
to enfranchise felons78—analogous claims have been made, for example, by
the Italian Consiglio di Stato which argued, in the Federfarma case, that “it is
possible to conceive the preservation of a State’s legal space wholly subtracted from
the influence of [EU] law and in which the State continues to be fully sovereign,
that is independent, and therefore free to adopt the laws that it pleases. This is the
area of fundamental rights.”79 In the same vein, the British and Polish governments
negotiated in the Lisbon Treaty a special Protocol on the Charter,80 stating that
“the Charter does not extend the ability of the European Court of Justice, or any
court or tribunal of Poland or of the United Kingdom, to find that the laws,
regulations or administrative provisions, practices or action of Poland or of the
United Kingdom are inconsistent with the fundamental rights, freedoms and
75 See Christian Tomuschat, “The Ruling of the German Constitutional Court on the Lisbon
Treaty” (2009) 10 German Law Journal 1259, 1260 (arguing that the Bundesverfassungsgericht
“constructs a line of defense against any possible infringements of German sovereignty”); Daniel
Halberstam and Christoph Möllers, “The German Constitutional Court says ‘Ja zu Deutschland!’ ”
(2009) 10 German Law Journal 1241, 1251 (criticizing the Bundesverfassungsgericht theory of
necessary state functions as a “devastating bankruptcy of a solipsistic theory of the state”).
76 See BVerfGE 123, 267 (2009) (Lissabon Urteil), para 298 (official English translation). See also
para 216 (stating that the Basic Law “not only assumes sovereign statehood but guarantees it”). See
critically, Cristoph Schönberger, “Lisbon in Karlsruhe: Maastricht’s Epigones at Sea” (2009) 10
German Law Journal 1201.
77 Hirst v. United Kingdom, ECHR [2005] App. No. 74025/01 (GC) (ruling that the UK was in
violation of Art 3 of the 1st Additional Protocol to the ECHR for depriving prisoners of the right to
vote).
78 House of Commons, 10 February 2011, col 493 (David Davis MP: “is the requirement to give
prisoners the vote sensible, just, right and proper? Secondly, who should decide? Should it be the
European Court of Human Rights, or this House on behalf of the British people?”).
79 Consiglio di Stato, sez. V, n. 4207/2005, Federfarma, 30–1 (my translation: “è, concepibile
conservare uno spazio giuridico statale del tutto sottratto all’influenza del diritto comunitario, uno
spazio nel quale lo Stato continua ad essere interamente sovrano, vale a dire indipendente, e perciò
libero di disporre della proprie fonti normative. E’ appunto l’area dei diritti fondamentali”). For
criticism of this decision, see Giulio Itzcovich, “I diritti fondamentali come ‘libertà dello Stato’.
Sovranità dello Stato e sovranità dei diritti nel caso Federfarma” [2008] Diritti umani e diritto
internazionale 267.
80 See Protocol No. 30 on the Application of the Charter of Fundamental Rights of the European
principles that it reaffirms”; and that “to the extent that a provision of the Charter
refers to national laws and practices, it shall only apply to Poland or the United
Kingdom to the extent that the rights or principles that it contains are recognised
in the law or practices of Poland or of the United Kingdom.” Regardless of whether
this Protocol has any meaning,81 it is clear that it reflects the idea that it should not
be the business of supranational human rights courts to interfere with the protec-
tion of fundamental rights existing at the state level.
Yet, as much as the sovereigntist vision is embedded in the European tradition,
and ever popular with scholars, policymakers, and courts, this approach fails to
provide a convincing explanation of the constitutional dynamics currently at play
in the European multilevel human rights architecture.82 By looking at the Euro-
pean system exclusively from the perspective of a specific constitutional state and
considering the emergence of supranational human rights standards as a threat
to pre-existing domestic systems, the sovereigntist approach is unable to offer a
comprehensive account of the complex dynamics at play in a multi-layered regime.
As such, it faces the same hurdles as any strategy of containment.83 Instead of trying
to explain the phenomena, and assess their pros and cons, it confines itself to an
a priori opposition to a series of transformations that it perceives as threatening the
status quo. As Mattias Kumm has emphasized in the context of his broader critique
of the “statist paradigm” of thought, sovereigntism fails to appreciate the trans-
formations of constitutionalism that have occurred in the last 60 years and their
rationale, and is of limited explanatory value.84
Increasingly, therefore, this sovereigntist reading has been challenged by another
group of scholars who emphasize the potential of the transformations brought
about by a multi-layered architecture for the protection of fundamental rights in
Europe. In this alternative account, the emergence of new layers of norms and
institutions for the protection of fundamental rights should be seen not as a threat
but, rather, as an opportunity for the enhancement of national human rights
standards,85 and the development of a common culture of fundamental rights in
81 See Jacques Ziller, Il nuovo Trattato europeo (Il Mulino 2007) 178 (stating that “from the legal
point of view the protocol is totally useless” (my translation: “dal punto di visto giuridico il protocollo è
totalmente inutile”)) and Steve Peers, “The ‘Opt-Out’ that Fell to Earth: The British and Polish
Protocol Concerning the EU Charter of Fundamental Rights” (2012) 13 Human Rights Law Review
375, 389 (stating that “it must be doubted whether there is any practical legal purpose to retaining the
Protocol”). See also Joined Cases C-411/10 NS and C-493/10 ME, judgment of 21 December 2011,
nyr, para 119 (ECJ holding that Art 1(1) of the Protocol “does not call into question the applicability of
the Charter in the United Kingdom or Poland”).
82 See generally, Neil MacCormick, Questioning Sovereignty: Law, State, and Nation in the European
Commonwealth (OUP 1999) and Neil Walker, “Late Sovereignty in the European Union” in Neil
Walker (ed), Sovereignty in Transition (Hart Publishing 2003) 3.
83 Krisch (n 64) 17.
84 Mattias Kumm, “The Cosmopolitan Turn in Constitutionalism: On the Relationship between
Constitutionalism in and beyond the State” in Jeffrey Dunoff and Joel Trachtman (eds), Ruling the
World: Constitutionalism, International Law and Global Governance (CUP 2009) 258, 261–3. See also
Konrad Schiemann, “Europe and the Loss of Sovereignty” (2007) 56 International & Comparative
Law Quarterly 475.
85 See e.g., Alison Young, “The Charter, Constitution and Human Rights; Is This the Beginning or
the End for Human Rights Protections by Community Law?” (2005) 11 European Public Law 219,
20 Of Floors, Ceilings, and Human Rights
Europe.86 According to this vision, fundamental rights no longer appear as directly
and univocally related to the sovereign state. Instead, they are conceived of as
autonomously and simultaneously entrenched in a plurality of legal sources and a
multiplicity of legal frameworks which intertwine and overlap. The state is but one
of the authorities endowed with the power to acknowledge and secure fundamental
rights and cannot advance any a priori greater claim of legitimacy vis-à-vis the other
public authorities operating in the field of human rights protection beyond the
state.87 This account, therefore, rejects the idea of a systemic, abstract superiority of
the state in the protection of fundamental rights, in favor of an open-ended
approach which assesses in positive terms the interaction between national and
supranational human rights standards. As has been stated, the emergence of layers
of human rights protection beyond the state signals a shift away from the imperium
of the state in favor of a jus commune of fundamental rights.88 Similarly, the ever
closer link between national and European levels of human rights protection has been
prized for its openness and flexibility:89 “in spite of th[e] divergence on fundamentals,
the interplay between different levels of law has been [characterized] . . . by mutual
accommodation and convergence . . . facilitated by the flexible strategy of the
courts.”90
By emphasizing the normative appeal of a multilevel architecture of human
rights protection in Europe, these readings all appear connected to emerging
pluralist theories of EU integration. Although several scholars have interpreted
the pluralism of the European multilevel human rights system as a fundamental
departure from constitutionalism, toward a new system of post-national govern-
ance,91 many others have emphasized how pluralism and constitutionalism should
not be seen as contradictory. As Daniel Halberstam has stressed, pluralism as
heterarchy is a defining feature of several constitutional regimes, including in the
230 (praising the case law of the ECJ in the field of abortion as “the triumph for the right of the woman
to choose”); Allan Rosas, “Finis Europae socialis?” in Mélanges en l’honneur de Jean Paul Jacqué (Dalloz,
2010) 591 (defending the case law of the ECJ in the field of social rights as expanding the protection of
social rights to the new member states).
86 On the notion of a common European constitutional culture, see Peter Häberle, Europäische
Verfassungslehre (Nomos 2002) and Alessandro Pizzorusso, Il patrimonio costituzionale europeo (Il
Mulino 2002).
87 See Joseph H. H. Weiler and Nicholas Lockhart, “ ‘Taking Rights Seriously’ Seriously: The
European Court of Justice and Its Fundamental Rights Jurisprudence—Part I” (1995) 32 Common
Market Law Review 51, 81 (“confess[ing] to a bias, rebuttable to be sure, in favour of human rights
judicial review by courts not directly part of the polity the measure of which comes under review”). See
also Joseph H. H. Weiler and Nicholas Lockhart, “ ‘Taking Rights Seriously’ Seriously: The European
Court of Justice and Its Fundamental Rights Jurisprudence—Part II” (1995) 32 Common Market Law
Review 579.
88 See Gaetano Silvestri, “Verso uno ius commune europeo dei diritti fondamentali” [2006]
Review 184.
90 Krisch (n 89) 215.
91 See Krisch (n 64). See also Matej Avbelj, “Questioning EU Constitutionalisms” (2008) 9
Union and the United States” in Jeffrey Dunoff and Joel Trachtman (eds), Ruling the World:
Constitutionalism, International Law and Global Governance (CUP 2009) 326, 337.
93 Julio Baquero Cruz, “The Legacy of the Maastricht-Urteil and the Pluralist Movement” (2008)
14 European Law Journal 389. See also Franz Mayer and Mattias Wendel, “Multilevel Constitution-
alism and Constitutional Pluralism” in Matej Avbelj and Jan Komárek (eds), Constitutional Pluralism
in the European Union and Beyond (Hart Publishing 2012) 127.
94 See John Griffiths, “What is Legal Pluralism” (1986) 24 Journal of Legal Pluralism 1.
95 Compare Miguel Poiares Maduro, “The Importance of Being Called a Constitution: Consti-
tutional Authority and the Authority of Constitutionalism” (2005) 3 International Journal of Consti-
tutional Law 332, 347 with Mattias Kumm, “The Jurisprudence of Constitutional Conflict:
Constitutional Supremacy in Europe before and after the Constitutional Treaty” (2005) 11 European
Law Journal 262.
96 See also, for a description of various brands of constitutional pluralism, Matej Avbelj and Jan
Komárek, “Four Visions of Constitutional Pluralism,” EUI Working Paper Law No. 21, 2008.
97 Neil Walker, “The Idea of Constitutional Pluralism” (2002) 65 Modern Law Review 317, 337.
98 Miguel Poiares Maduro, “Three Claims of Constitutional Pluralism” in Matej Avbelj and Jan
Komárek (eds), Constitutional Pluralism in the European Union and Beyond (Hart Publishing 2012)
67, 75.
99 Miguel Poiares Maduro, “Contrapunctual Law: Europe’s Constitutional Pluralism in Action” in
101 See Marta Cartabia, “Unita nella diversità. Il rapporto tra la Costituzione europea e le Costi-
Avbelj and Jan Komárek (eds), Constitutional Pluralism in the European Union and Beyond (Hart
Publishing 2012) 319 and Giuseppe Martinico, “Judging in a Multilevel Legal Order: Exploring the
Techniques of ‘Hidden Dialogue’ ” (2010) 21 King’s Law Journal 257.
103 Aida Torres Pérez, “The Challenges for Constitutional Courts as Guardians of Fundamental
Rights in the European Union” in Patricia Popelier et al (eds), The Role of Constitutional Courts in
Multilevel Governance (Intersentia 2013) 49, 75.
104 See Andreas Voßkhule, “Multilevel Cooperation of the European Constitutional Courts: Der
Pension XVII (Czech Constitutional Court declaring a decision of the ECJ ultra vires). See, critically,
“Sovereigntism” vs. “Pluralism” 23
evident that such an account can provide only limited insights into the deeper
dynamics at play in the functioning of a multilevel constitutional system.
Moreover, from the methodological point of view, most analyses of the European
multilevel system of human rights protection based on the theory of constitutional
pluralism have considered the European architecture in complete isolation. With a
few remarkable exceptions,108 the pluralist narrative of the European human rights
system has endorsed, either explicitly or implicitly, the idea that the European system
is a sui generis arrangement, with no equivalent elsewhere in the world. Yet, this
ideographic understanding of the European multilevel human rights architecture as a
unique regime characterized by a plurality of norms and institutions for the protec-
tion of fundamental rights has significantly undermined the ability of this narrative to
explain the processes playing out in the European system. As Robert Schütze has
convincingly argued in his broader criticism of sui generism in EU scholarship, “there
are serious problems with the sui generis argument.”109 First, such an approach lacks
explanatory value. Secondly, it is able to describe the European system only in
negative terms. Thirdly, by lacking any external standard, it fails to offer an adequate
benchmark for appreciating the transformations of the European human rights
architecture.
In the general constitutional law literature, the limits of ideographic approaches
in the study of legal systems have been repeatedly emphasized. Comparative lawyers
have identified the manifold advantages of the comparative method.110 First and
foremost, the comparative method has been defined as the most effective cognitive
instrument to understand the structures and functions of juridical systems by
underscoring the commonalities and diversities between cases.111 Secondly, the
comparative method has been praised as an extremely powerful tool for explicating
the dynamics and processes that characterize the functioning of a specific system
and for illuminating those structural regularities that would otherwise pass
unnoticed.112 Thirdly, the comparative method has also been identified, with
important caveats, as a valuable tool for supplying models in the perspective of
legal reforms and for advancing transformations and unifications in the law.113
Jan Komárek, “Playing with Matches: The Czech Constitutional Court Declares a Judgment of the
Court of Justice of the EU Ultra Vires” (2012) 8 European Constitutional Law Review 323.
108 See Halberstam (n 92); Torres Pérez (n 3).
109 Robert Schütze, From Dual to Cooperative Federalism. The Changing Structure of European Law
Dalloz 2002); Lucio Pegoraro, “Introduzione al diritto pubblico comparato” in Lucio Pegoraro et al,
Diritto Pubblico Comparato (Giappichelli 2004) 1.
112 This point has been notably stressed in the works of Rodolfo Sacco: Introduzione al diritto
comparato (5th ed UTET 2001) 12; “Legal Formants: A Dynamic Approach to Comparative Law—
Part I” (1991) 39 American Journal of Comparative Law 1 and “Legal Formants: A Dynamic
Approach to Comparative Law—Part II” (1991) 39 American Journal of Comparative Law 343.
113 See Alan Watson, “Comparative Law and Legal Change” (1978) 37 Cambridge Law Journal
313.
24 Of Floors, Ceilings, and Human Rights
Although the main function of comparative law is to enhance scientific knowledge
rather than to advise legal reforms, the potentials of the comparative method to
foster the circulation of constitutional ideas have therefore also been stressed.114
Aware of the virtues of the comparative method, several students of European
law have maintained that any research that focuses on the European system should
resort to a comparative methodology and thereby benefit from the lessons that
can be learnt from other legal systems.115 According to these scholars, in fact, the
European system is not a unique case, and there is more to gain than to lose from
comparing it with other regimes sharing its polycentric constitutional features.116
Interestingly, the legal comparative approach in the study of European constitu-
tionalism was originally quite widespread.117 It suffices to recall here the pioneering
research coordinated by Mauro Cappelletti at the European University Institute in
the early 1980s to appreciate how a comparative perspective—notably with the
federal experience of the US—was regarded as the most fruitful approach to the
study of Europe.118 However, reflecting to a large extent the broader experience of
the rise and fall of comparative studies over the past 50 years,119 also in European
scholarship the comparative method later “fell into a medieval slumber”120 and was
replaced by a sui generis narrative.121
Nevertheless, in recent times, comparative lawyers have shown a new interest in
European studies and have challenged the methodological assumptions of the sui
generist scholarship.122 In the field of fundamental rights, in particular, Aida Torres
114 See Sujit Choudhry, “Migration as a New Metaphor in Comparative Constitutional Law” in
the ‘Virginia of Europe’?” (1995) 43 American Journal of Comparative Law 177; Larry Catà Backer,
“The Extra-National State: American Confederate Federalism and the European Union” (2001) 7
Columbia Journal of European Law 173.
116 See Alberta Sbragia, “Thinking about the European Future: The Use of Comparison” in Alberta
Sbragia (ed), Euro-Politics. Institutions and Policymaking in the “New” European Community (Brookings
Institution 1992) 257; Mark Tushnet, “Conclusion” in Mark Tushnet (ed), Comparative Constitu-
tional Federalism. Europe and America (Greenwood Press 1990) 139.
117 See Eric Stein, “Uniformity and Diversity in a Divided-Power System: The United States’
Experience’ (1986) 61 Washington Law Review 1081, repr. in Thoughts from a Bridge. A Retrospective
of Writings on New Europe and American Federalism (Michigan UP 2000) 309; Terrance Sandalow and
Eric Stein, “On the Two Systems: An Overview” in Terrance Sandalow and Eric Stein (eds), Courts and
Free Markets: Perspectives from the United States and Europe (OUP 1982); Koen Lenaerts, Two Hundred
Years of U.S. Constitution and Thirty Years of EEC Treaty. Outlook for a Comparison (Kluwer 1988).
118 Mauro Cappelletti et al (eds), Integration Through Law: Europe and the American Federal
munity and the United States” (1994) 94 Columbia Law Review 332; Ernest Young, “Protecting
The European multilevel system in comparative perspective 25
Pérez has explained that the European multilevel system is subject to processes
which are “endemic to any divided-power system”123 and has argued that in
particular the experience of federalism and rights in the US can provide valuable
insights to understand the European system.124 By grounding her work in the
theory of constitutional pluralism, yet taking advantage of an enriching comparison
with the US tradition, Aida Torres Pérez has appraised the tensions that exist in the
protection of fundamental rights in Europe and advanced a normative theory of
adjudication for the European multilevel human rights regime—based on judicial
dialogue—intended to prevent the occurrence of constitutional conflicts.125 The
aim of this book is to follow in the footsteps of this recent revival of comparative
law and assess in comparative perspective the constitutional dynamics at play in the
European multilevel system of human rights protection.
What are the implications of the overlap and interplay between multiple human
rights standards in Europe? As suggested in the previous section, for different
reasons neither the more traditional sovereigntist scholarship nor the latest accounts
based on constitutional pluralism, have offered a comprehensive answer to this
question. By taking advantage of the methodological insights deriving from the
literature on comparative constitutional law, this book seeks to answer the question
by adopting a comparative perspective. The central methodological claim of my
work is, in other words, that only a comparative approach can yield a convincing
explanation for the constitutional implications of a multi-layered human rights
regime such as the European one. In doing so, I draw inspiration from the
illuminating metaphor employed by Vicki Jackson who has argued that compara-
tive law can be used as a mirror—that is, as an instrument to better understand
one’s own legal system by looking at the experiences of others.126 While the focus of
my study is the European multilevel human rights system, I will seek to draw
insights from the practice and theory of other constitutional regimes characterized
by a multi-layered architecture for the protection of rights.
Member State Autonomy in the European Union: Some Cautionary Tales from American Federalism”
(2002) 77 NYU Law Review 1612.
123 Torres Pérez (n 3) 70.
124 See also Aida Torres Pérez, “The Dual System of Rights Protection in the European Union in
Light of US Federalism” in Elke Cloots et al (eds), Federalism in the European Union (Hart Publishing
2012), 110.
125 Torres Pérez (n 3) 95 ff.
126 See Vicki Jackson, “Narrative of Federalism: Of Continuities and Comparative Constitutional
Experience” (2001) 51 Duke Law Journal 223, 258. See also Vicki Jackson, Constitutional Engagements
in a Transnational Era (OUP 2010) ch 9 and Victor Ferreres Comella, “Comparative Modesty (book
review of Vicki Jackson, Constitutional Engagements in a Transnational Era)” (2011) 7 European
Constitutional Law Review 517, 520 (arguing that “transnational law is a sort of mirror that helps a
national community define itself in a self-critical way”).
26 Of Floors, Ceilings, and Human Rights
The choice of the comparator to be considered in the analysis, and the way
in which the comparison is developed throughout the book, follows directly from
this objective. As Ran Hirschl has emphasized, in fact, alternative criteria of case
selections are available in the field of comparative constitutional law.127 In his
account, influenced by the methodology of political science, Hirschl distinguished
between five so-called logics of comparison. Scholars can either compare “most-
similar cases,” or “most-different cases,” or “prototypical cases,” or “most difficult
cases,” or “outlier cases.”128 Each of these logics is instrumental in achieving
different argumentative results, and the choice of one or the other should be
justified in view of the final goal pursued by the research.129 In my assessment
I will follow the first logic of comparison, selecting as a comparator the constitu-
tional system which is most similar to the European one. By looking at cases which
share similarities under most variables considered, I will, in fact, be able to explore
in more depth the dynamics at play in multi-layered systems, identify their causes,
and reconceptualize them in a comprehensive analytical model.130
In light of these methodological choices, I now endeavor to identify the legal
system which is characterized by structural and normative features akin to those of
the European multilevel architecture. As explained in section 2, the distinctive
properties of the European multilevel human rights architecture are: (1) a plurality
of constitutional sources enshrining fundamental rights; (2) a plurality of consti-
tutional actors—notably courts—endowed with the power to protect them; and
thus (3) a plurality of constitutional views on human rights. For the reasons
underlined in section 3, unitary states lack these pluralist features. At the same
time, the human rights dimension seems to differentiate the European multilevel
architecture from other international organizations—or, in an historical perspective,
from multinational empires—which present pluralist features but lack analogous
mechanisms of human rights adjudication.131 Prima facie, instead, it may seem
that the three characteristics could be found in federal systems. Federal systems, in
fact, are by definition premised on a vertical division of powers between sub-national
authorities and a federal government.132 This allows federal systems generally
127 See Ran Hirschl, “The Question of Case Selection in Comparative Constitutional Law” (2005)
Sujit Choundhry (ed), The Migration of Constitutional Ideas (CUP 2006) 67 and Martin Scheinin et al
(eds), The Jurisprudence of Human Rights: A Comparative Interpretive Approach (Åbo Akademi 2000).
130 Clearly, other methodological strategies could have been followed, with different results and
argumentative paths. For a recent outline of the broader puzzle of theories and methods in comparative
law, see Maurice Adams and Jacco Bomhoff (eds), Practice and Theory in Comparative Law (CUP
2012).
131 Of course, the cases selected for comparative assessment could be different if the purpose of the
research was, e.g., to study the structure of public administration and the exercise of public powers. For
a thorough comparison of the European administrative system with the experience of modern
multinational empires, see Sabino Cassese, “Che tipo di potere pubblico è l’Unione Europea?”
[2002] Quaderni fiorentini per la storia del pensiero giuridico 109.
132 See Ronald Watts, Comparing Federal Systems in the 1990s (Queen’s University 1996) 7
(defining federal systems as “a broad category of political systems in which, by contrast to the single
central source of authority in unitary systems, there are two (or more) levels of government which
The European multilevel system in comparative perspective 27
combine shared-rule through common institutions and regional self-rule for the governments of the
constituent units”); Daniel Halberstam, “Federalism: Theory, Policy, Law” in Michel Rosenfeld and
András Sajó (eds), The Oxford Handbook of Comparative Constitutional Law (OUP 2012) 576, 580
(defining federalism as “the coexistence within a compound polity of multiple levels of government
each with constitutionally grounded claims to some degree of organizational autonomy and jurisdic-
tional authority”).
133 On the possibilities, but also on the caveats, that need to be taken into account when comparing
federal systems, see Vicki Jackson, “Comparative Constitutional Federalism and Transnational Judicial
Discourse” (2004) 2 International Journal of Constitutional Law 91, 95 (explaining how federal
systems are complex “package deals” resulting from historically contingent compromises). See also
Cheryl Saunders, “Constitutional Arrangements of Federal Systems” (1995) 25 Publius 61.
134 On the lack of a federal Charter of Rights, see George Williams, A Charter of Rights for Australia
(UNSW Press 2007). On the complex constitutional interaction between federal and state laws in
Australia see, however, Simon Evans and Cheryl Saunders, “Overlap, Inconsistency, Conflict and
Choice. Reconciling Multiple Norms in the Australian Federation” in Hans Peter Schneider et al (eds),
Judge Made Federalism? The Role of Courts in Federal Systems (Nomos 2009) 131.
135 For a comparative assessment of federalism in India and the EU see, however, Shivadev Shastri,
“Lessons for the European Community from the Indian Experience with Federalism” (1994) 17
Hastings International and Comparative Law Review 633.
136 See Canadian Charter of Rights and Freedoms, Schedule B to the Canada Act 1982, 30 Eliz. 2,
c. 11 (UK). See also Kent Roach, Constitutional Remedies in Canada (Canada Law Book 1997).
137 See Stephen Gardbaum, “The New Commonwealth Model of Constitutionalism” (2001) 49
139 Daniel Elazar, “Communal Democracy and Liberal Democracy: An Outside Friend’s Look at
Alec Stone Sweet (eds), A Europe of Rights (OUP 2008) 311, 367.
144 Frenkel (n 141) 69.
145 See Anne Peters, “Supremacy Lost: International Law Meets Domestic Constitutional Law”
Kägi-Diener, “Grundrechtsschutz durch die Kantone” in Daniel Thürer et al (eds), Verfassungsrecht der
Schweiz—Droit constitutionnel suisse (Schulthess 2001) 837.
149 Thomas Fleiner, “Different ‘Federalism’ According to the Different Legal Systems: Common
Law and Continental Law,” paper presented at the Conference in Honour of Ronald Watts “The
Federal Idea,” Kingston, Ontario, 18–20 October 2007 (on file with the author).
150 See Art 86, Loi Fédérale sur le Tribunal Fédéral du 17 Juin 2005, RO 2005 p. 3829 (Switz.)
(appeals to the Federal Tribunal against decisions by the last instance courts of the cantons).
The European multilevel system in comparative perspective 29
(n 139).
154 See Walter Kälin, “Verfassungsgerichtbarkeit” in Daniel Thürer et al (eds), Verfassungsrecht der
statute is incompatible with international law and that it is the legislator’s responsibility to bring the
Swiss law into conformity with it”).
156 On the codification of rights both in the federal Bill of Rights and in state constitutions, see
Stewart Pollock, “State Constitutions as Separate Sources of Fundamental Rights” (1983) 35 Rutgers
Law Review 707.
157 On the judicial architecture of the US, see Vicki Jackson and Judith Resnik (eds), Federal Courts
marks a difference with the procedural mechanisms existing under EU law (where the ECJ can be asked
to adjudicate on a preliminary reference) and is instead analogous to the procedural mechanisms of the
ECtHR. See also Jeffrey Cohen, “The European Preliminary Reference and US Supreme Court
Review of State Courts Judgments: A Study in Comparative Judicial Federalism” (1996) 44 American
Journal of Comparative Law 421. Both the US Supreme Court and the ECJ (as well as the ECtHR),
however, are entrusted with the task of securing uniform interpretation and application of Union law
across the member states. See Monica Claes and Maartje de Visser, “The Court of Justice as a Federal
Constitutional Court: A Comparative Perspective” in Elke Cloots et al (eds), Federalism in the
European Union (Hart Publishing 2012) 83, 100.
30 Of Floors, Ceilings, and Human Rights
Thirdly, in the US, as in Europe, a variety of constitutional views on rights have
been advanced and debated in the federal system.160 On this basis, therefore, it is
possible to use the US case as the comparative example for the study of Europe.
Such a comparison is appropriate, otherwise, regardless of the differences that exist
between the two regimes, which will also be explained below. From the point of
view which is of interest for comparison, in fact, the US is still empirically
characterized by the existence of a multi-layered architecture for the protection of
human rights akin to the European one.
Also, in the US the emergence of a pluralist architecture for the protection of
fundamental rights has been the result of a long historical evolution. The 1787 US
Constitution, drafted after the unsuccessful experience of the 1781 Articles of
Confederation, established for the 13 independent American states a constitutional
system in which power was institutionally divided both vertically161—between
several states and a federal authority—and horizontally162—among the various
branches of the federal government (following a model that reproduced those in
force at that time in each of the founding states and which would also later be
reproduced in almost all the new states). In its original structure,163 the US system
contained two strictly separate mechanisms for the protection of fundamental
rights.164 Every state in the federation had its own constitutional text codifying
fundamental rights and entrusting the state’s authorities to enforce it. A federal Bill
of Rights—drafted in 1791 and attached as the first ten amendments to the 1787
Constitution (which itself included only a few minor human rights provisions)—
then bound the action of the federal government in its spheres of competence. The
federal Bill of Rights, however, did not bind the states165—some of which, in fact,
even allowed slavery166—although state courts sometimes referred to it as a source
of inspiration for general principles.167
160 Robert A. Schapiro, Polyphonic Federalism: Toward the Protection of Fundamental Rights (Chi-
cago UP 2009).
161 On the vertical separation of powers in the US constitutional architecture, see Gerald Gunther
and Kathleen Sullivan, Constitutional Law (13th ed Foundation Press 1997) 87; Robert Sadler, “The
Constitution and the American Federal System” (2009) 55 Wayne Law Review 1.
162 On the horizontal separations of powers in the US constitutional architecture, see Laurence
Tribe, American Constitutional Law (3rd ed Foundation Press 2000) 118; Bradford Clark, “Separation
of Powers as a Safeguard of Federalism” (2001) 79 Texas Law Review 1321.
163 Compare the historical accounts of Bruce Ackerman, We the People. Vol. 1: Foundations
(Harvard UP 1991) with Akhil Reed Amar, America’s Constitution: A Biography (Random House
2005).
164 Jean Yarbrough, “Federalism and Rights in the American Founding” in Ellis Katz and Alan Tarr
and Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (Yale UP 2000).
166 On the problem of slavery and for an account of the infamous decision of the US Supreme
Court in Dred Scott v. Sandford, 19 U.S. (How.) 393 (1857) see Paul Finkelman, Dred Scott v.
Sandford. A Brief History with Documents (Bedford/St. Martin’s 1997).
167 See Jason Mazzone, “The Bill of Rights in the Early State Courts” (2008) 92 Minnesota Law
Review 1.
The European multilevel system in comparative perspective 31
After the Civil War, a major constitutional transformation took place with the
adoption in 1868 of an amendment to the federal constitution.168 The Fourteenth
Amendment—by stating that “no State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection of the laws”—
extended the application of the federal Bill of Rights to the states, empowering the
federal government to identify and remedy possible violations by the states of the
fundamental rights recognized in the federal Constitution.169 The so-called
“incorporation” of the federal standards of fundamental rights protection within
the legal orders of the states was a gradual and contested process170 which took
more than a century to complete and was mainly achieved, after World War II,
through the jurisprudence of the US Supreme Court.171 Congress then played a
crucial role in enforcing the mandate of the Reconstruction Amendments.172
Nonetheless, despite the increasing harmonization of the protection of fundamen-
tal rights in the US under the aegis of the federal government, the states maintained
their own systems for the protection of fundamental rights.173 In addition, given
the ample range of competences that were—and are—entrusted to the states, these
remained—and still are largely today—relevant fora in which the protection of
fundamental rights takes place.174
After World War II, the US was also closely involved in the process of consti-
tutionalization of human rights at both the regional and international level,175
168 Compare William Nelson, The Fourteenth Amendment: From Political Principle to Judicial
Doctrine (Harvard UP 1988) with Bruce Ackerman, We the People. Vol. 2: Transformations (Harvard
UP 1998).
169 See John Paul Stevens, “The Bill of Rights: A Century of Progress” in Geoffrey Stone et al (eds),
The Bill of Rights in the Modern State (Chicago UP 1992) 13. For a detailed analysis of the Due Process
Clause of US Const. Am. XIV, see John Orth, Due Process of Law. A Brief History (Kansas UP 2003).
170 Three major doctrines of incorporation competed during the last century. The first—the
appropriate legislation, see Steven Calabresi and Nicolas Stabile, “On Section 5 of the Fourteenth
Amendment” (2009) 11 Pennsylvania Journal of Constitutional Law 1431.
173 See John Dinan, “State Constitutions and American Political Development” in Michael Burgess
and Alan Tarr (eds), Constitutional Dynamics in Federal Systems: Subnational Perspectives (McGill-
Queen’s UP 2012) 43.
174 See Alan Tarr, “State Supreme Courts in American Federalism” in Hans Peter Schneider et al
(eds), Judge Made Federalism? The Role of Courts in Federal Systems (Nomos 2009) 192 and the decision
of the Massachusetts Supreme Judicial Court in Goodridge v. Dep’t of Public Health, 440 Mass. 309
(2003) (introducing a right to marriage for gay couples in the state of Massachusetts).
175 On the leading role of the US in establishing international human rights institutions, compare
Louis Henkin, The Rights of Men Today (Westview 1978) with Mary Ann Glendon, A World Made
New: Eleanor Roosevelt and the Universal Declaration of Human Rights (Random House 2001).
32 Of Floors, Ceilings, and Human Rights
although it then refused to bind itself to such agreements.176 Hence, at the regional
level, the US has signed but not ratified the American Human Rights Convention,
with the consequence that the Inter-American Court of Human Rights (IACtHR)
has no jurisdiction over claims against the US. The US has signed the American
Declaration of the Rights of Man (ADRM) and—as a member of the Organization
of American States—can be sued before the Inter-American Commission on
Human Rights (IACommHR).177 The ADRM-based review of the IACommHR
is quite limited, however, as it can only adopt non-binding recommendations
which are then left to the states whether to enforce.178 The fact that the US is
bound by the weak ADRM, but has refused to subject itself to the more pervasive
external scrutiny of the IACtHR, marks a structural difference between the US and
the European human rights systems. In the US, a “dual system of constitutional
protections”179 is in force, with both state and federal courts and with states as well
as a federal Bills of Rights. The US, instead, is not subject to a third layer of human
rights protection comparable to the ECHR. Yet this difference should not be
viewed as an insurmountable obstacle to a comparison between the two regimes:
comparative lawyers are accustomed to working with systems which are not
identical.180
At the same time, there are also normative reasons that render the US case
enlightening for the study of the dynamics at play in Europe. Since the US federal
system, like the European multilevel architecture, came into being through a
constitutional process of “coming together”181 of pre-existing states, each endowed
with its own mechanisms for the protection of fundamental rights, fundamental
rights were less visible in the original constitutional setting and, even when they
subsequently emerged through a series of key constitutional transformations, they
have not removed the plurality of state human rights understandings.182 As a result,
176 On the position of the US vis-à-vis international human rights institutions, compare Philippe
Sands, Lawless World. America and the Making and Breaking of Global Rule (Viking 2005) with Jed
Rubenfeld, “The Two World Orders” in Georg Nolte (ed), European and US Constitutionalism (CUP
2005) 280.
177 On the IACommHR see Robert Goldman, “History and Action: The Inter-American Human
Rights System and the Role of the Inter-American Commission on Human Rights” (2009) 31 Human
Rights Quarterly 856.
178 See, critically, Henry Steiner, Philip Alston, and Ryan Goodman, International Human Rights in
State Constitutional Perspective” in Ellis Katz and Alan Tarr (eds), Federalism and Rights (Rowman &
Littlefield 1996) 101, 102.
180 See also Paul Schiff Berman, “Federalism and International Law Through the Lens of Legal
Pluralism” (2008) 73 Missouri Law Review 1149, 1152 (suggesting the comparability of the US
federal system with other pluralist and transnational arrangements characterized by jurisdictional
redundancies). In addition, see also Judith Resnik, “Law’s Migration: American Exceptionalism, Silent
Dialogues and Federalism’s Multiple Ports of Entry” (2006) 115 Yale Law Journal 1566 (explaining
that even if the federal government is not bound by several international treaties, the US federal
structure of government allows the states to be receptive players of international human rights norms).
181 See Alfred Stepan, “Federalism and Democracy: Beyond the US Model” (1999) 10 Journal of
the US federal system and the European multilevel architecture appear to share a
common normative identity characterized by “the [endemic] tension between
uniformity and diversity”183 in the protection of fundamental rights. Kim Lane
Scheppele has emphasized how the US federal arrangement “embodies a commit-
ment to moral pluralism within a larger national arena, which must, as a result,
promote tolerance of such diversity for the nation to survive”184 and US scholars
have attentively outlined how the US federal system combines competing centri-
petal and centrifugal forces in the field of fundamental rights.185 Indeed, each
generation in the US has faced the question of where to draw the line between the
search for uniformity and the need for diversity and how to combine self-rule and
shared rule.186 The same challenges in striking the balance between centripetal and
centrifugal forces characterize the European experience.187 From the normative
point of view, therefore, the case of the US federal system represents a particularly
appropriate model for discussing the developments taking place in the European
multilevel constitutional regime. As has been stated, “American federalism is a
system of law and a structure of power”188 which, in the field of fundamental rights,
is designed to promote diversity while safeguarding a degree of uniformity.189 Since
the values of homogeneity and heterogeneity are also at the normative heart of the
European multilevel human rights architecture, the US experience offers a para-
digmatic example for appreciating the historically evolving process at play in a
compound polity.190
In conclusion, a comparison with other federal systems reveals that the European
multilevel human rights architecture is not a sui generis arrangement. Rather, the
European system shares several structural and normative similarities with the
(eds), Federalism and Rights (Rowman & Littlefield 1996) 11 (arguing that, on the one hand,
federalism is functional to the values of self-government, increases restraint on the concentration and
abuse of powers, fosters civic education and participation, and makes government more accountable.
In addition, it favours local solutions to local problems, allows constituent units to work as laboratories,
and creates conditions for a continuous referendum on fundamental principles. On the other hand,
federalism is also essential to overcoming local tyrannies and injustices, to guaranteeing equal justice
under the law, and to building a sense of nationhood and identity).
186 Harry Scheiber, “Constitutional Structure and the Protection of Rights: Federalism and
Separation of Powers” in Harry Scheiber and Malcom Feeley (eds), Power Divided: Essays on the
Theory and Practice of Federalism (IGS Press 1989) 17, 29.
187 Torres Pérez (n 3) 77 ff (outlining, on the one hand, the interests pursued by supranational
uniformity in the field of human rights—namely, unity and identity, efficacy of EU law, equal
protection, legitimating the EU legal order—and, on the other hand, those connected to state
diversity—namely, democratic self-government of political communities, local identity, dual protec-
tion, exit and experimentation leading to innovation).
188 Samuel Beer, To Make a Nation: The Rediscovery of American Federalism (Harvard UP 1993) 23.
189 See Gary Jacobsohn, “Contemporary Constitutional Theory, Federalism and the Protection of
Rights” in Ellis Katz and Alan Tarr (eds), Federalism and Rights (Rowman & Littlefield 1996) 29.
190 See also Pierre Pescatore, “Forward” in Terrance Sandalow and Eric Stein (eds), Courts and Free
Markets: Perspectives from the United States and Europe (OUP 1982) x. From a political science
perspective, see Sergio Fabbrini, Compound Democracies. Why the United States and Europe Are
Becoming Similar (OUP 2008).
34 Of Floors, Ceilings, and Human Rights
federal arrangement of the US. To reiterate, for the avoidance of doubt: the two
systems are not the same. In fact, they present relevant differences: the US system is
subject only to a razor-thin third layer of human rights protection, developed over a
two-century-plus time span and is backed by what is now a solid political commu-
nity, whereas the European human rights architecture is characterized by three
layers of human rights norms which have emerged over the past two decades and is,
at best, a polity in the making.191 Today, the US is a state, while no state envelops
the European regime. However, comparative law claims that it is possible to
compare constitutional regimes regardless of their differences.192 Following Aris-
totelian logic, if two systems were identical they would be the same, rendering the
purpose of comparison useless. Moreover, the US federal human rights architec-
ture, based on overlapping and intertwining layers of human rights norms and
institutions, is still the most similar—or, more precisely, the least different—to that
of Europe.
Contrary to widespread assumption, the European multilevel architecture is not
the only system which has “had to combine a respect for rights with the require-
ments of effective government and to apportion responsibility for defining and
protecting rights between general and constituent governments.”193 Rather, Eur-
ope, as a multi-layered system, is facing the same challenges as the US federal
system and, “to a considerable extent, the problems [this] federal nation[] face[s] in
reconciling federalism and rights.”194 The complexities of a pluralist constitutional
system of human rights protection are relatively new in Europe:195 by contrast, the
federal system of the US has dealt with these complexities for a much longer time,
and still continues to deal with them today.196 From this point of view, compara-
tive “federalism provides one of the few theories which makes the actual develop-
ments understandable.”197 An approach to the study of the European multilevel
human rights architecture based on a comparison with the US federal system
191 See Bruce Ackerman, “The Rise of World Constitutionalism” (1997) 83 Virginia Law Review
(1997) 771, 776 (stating that “the (uncertain) transformation of a treaty into a constitution, is at the
center of the [EU] today; it was at the center of the American experience between the Revolution and
the Civil War”). See also Roberto Toniatti, “Forma di Stato comunitario, sovranità e principio di
sopranazionalità: una difficile sintesi” [2003] Diritto Pubblico Comparato Europeo 1552.
192 See Christoph Schönberger, “European Citizenship as Federal Citizenship: Some Citizenship
Lessons of Comparative Federalism” (2007) 19 European Review of Public Law 61, 65 (arguing that
“comparative analysis does not pretend to deny the uniqueness of the European experience. But the
[EU] is uniquely European in the same sense that other federalisms are uniquely American, German or
Swiss. . . . To compare two experiences does not mean to identify them, but to study their difference
and similarities”).
193 Ellis Katz and Alan Tarr, “Introduction” in Ellis Katz and Alan Tarr (eds), Federalism and Rights
Tarr (eds), Federalism and Rights (Rowman & Littlefield 1996) 139.
196 See Dick Howard, “Protecting Human Rights in a Federal System” in Mark Tushnet (ed),
Comparative Constitutional Federalism. Europe and America (Greenwood Press 1990) 115.
197 Tim Koopmans, “Federalism: The Wrong Debate,” (1992) 29 Common Market Law Review,
1047, 1051. See also Anand Menon and Martin Schain (eds), Comparative Federalism: The European
Union and the United States in Comparative Perspective (OUP 2006).
The dynamics of the European multilevel architecture recast 35
in the Age of Abolition (Harvard UP 2010) (explaining how, in the US, 34 states out of 50 plus the
federal government retain the death penalty).
36 Of Floors, Ceilings, and Human Rights
Differences may exist at the horizontal level because states vary in the scope of
protection they afford to a specific right.201 As Ann Althouse has explained, in the
US federal system states are generally able to experiment and provide different
degrees of protection to a given right.202 As such, for any specific fundamental
rights issue, she suggests that it is possible to classify states along a spectrum of
positions and to identify vanguard states—that is, states which ensure the most
advanced degree of protection of the right at issue—and laggard states—that is,
states which lag behind, by protecting (if at all) the right de quo in only a very
restrictive way.203 Of course, as Ann Althouse acknowledged, since rights do not
exist in a vacuum but are, rather, the result of a complex balancing between
competing interests,204 “attempts to sort the states into these two categories will
(and should) produce great disputes.”205 A higher standard for the protection of a
given right (and therefore the classification of a state as a vanguard) may come at the
price of lower protection for another conflicting right (making the state a laggard in
the other field). Nevertheless, if the notions of “vanguards” and “laggards” are used
without value connotations206—therefore without the assumption that vanguards
are better than laggards—it is clear that that the idea faithfully reflects the reality of
the US, where important differences cut cross the states: witness the recent
controversy about gay marriage.207 If applied in this neutral sense, the idea also
fits well in the European context. Once again, the example of the right of gay
couples to marry, with the major variations that exist between the EU member
states, suffices to make the point.208
In a multi-layered human rights architecture variations also occur at the vertical
level since the standards for the protection of a given right often differ between state
201 See Allan Erbsen, “Horizontal Federalism” (2009) 93 Minnesota Law Review 493.
202 Ann Althouse, “Vanguard States and Laggard States: Federalism and Constitutional Rights”
(2004) 152 University of Pennsylvania Law Review 1745. See also New State Ice Co. v. Liebmann, 285
U.S. 262, 311 (1932) (Brandeis J. dissenting, defining as “one of the happy incidents of the federal
system [the fact] that a single courageous State may, if its citizens choose, serve as a laboratory; and try
novel social and economic experiments without risk to the rest of the country”).
203 Althouse (n 202) 1746.
204 On the balancing of fundamental rights, see Andrea Morrone, “Bilanciamento (Giustizia
costituzionale)” in Enciclopedia del diritto (Giuffrè 2009) ad vocem (explaining how the expansion of
the content of one right implies the restriction of the content of another right).
205 Althouse (n 202) 1746.
206 See Elinor Mason, “Value Pluralism” in Stanford Encyclopedia of Philosophy (2011) ad vocem
(discussing the complexity of moral choice and the difficulty of resolving conflicts on values).
207 Compare Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009) (Iowa Supreme Court holding that a
limitation of marriage to opposite-sex couples violated the equal protection clause of the state
constitution) with Art I, sec. 27 Florida Const. as amended by Amendment 2 (2008) (defining
marriage as the union of a man and a woman). See also United States v. Windsor, 570 U.S. __
(2013) (US Supreme Court striking down the Defense of Marriage Act, denying federal benefits to
same-sex couples, and recognizing the authority of the states to allow same-sex marriage if they so
wish).
208 Compare Corte Costituzionale—C. Cost. n. 138/2010 (Italian Constitutional Court rejecting a
constitutional challenge against statutory law which does not permit gay marriages) with Loi no.
2013–404 du 17 mai 2013 ouvrant le mariage aux couples de personnes de même sexe, J.O.R.F., no.
0114 du 18 mai 2013, p. 8253 (French law introducing same-sex marriage). See also Schalk and
Kopf v. Austria, ECHR [2010] App. No. 30141/04 (ECtHR holding that the ECHR does not compel
contracting parties to recognize gay marriage).
The dynamics of the European multilevel architecture recast 37
law and transnational law.209 As with the horizontal dimension, in fact, states and
federal laws may reflect different understandings of human rights and strike
alternative balances between conflicting rights and interests.210 If the state and
federal systems are strictly separate—as occurred in the US before the Fourteenth
Amendment and the incorporation of federal rights in the states—no particular
issue seems to arise: while the federal standards bind federal institutions, the states
remain subject to their autonomous human rights instruments.211 However, once
federal standards of human rights protection begin to interact with state
standards—for instance, because, as occurred in the US, the states are required
(in certain cases) to comply with federal guarantees—this brings to light a situation
of possible divergence. In this situation, a question is raised whether federal law
provides either more or less protection to a given right than state law. We may
discuss theoretically whether it is always possible to measure standards of protection
in order to decide which is more protective for the right-holder.212 Yet, from a
constitutional law point of view, that is the inevitable starting point in any
assessment of which standard ought to apply in the event of differences between
state and federal law.
As the US constitutional law literature has emphasized, however, another crucial
factor influencing which standard will apply concerns the nature of the federal
human rights standard. In several circumstances, the standard set at the
federal level, and binding on the states, operates as a floor—that is, as a minimum:
as long as states respect that floor, they are free to go beyond it, extending an even
more advanced protection to that right. Notably, this situation has been welcomed
by US Supreme Court Justice William Brennan, who invited state Supreme Courts
to construe “state constitutional counterparts of provisions of the Bill of Rights as
guaranteeing citizens of their states even more protection than the federal pro-
visions.”213 However, precisely because rights often come in pairs—so that the
protection of one right implies the restriction of another conflicting right—the
emergence of a federal standard may also work as a ceiling—that is, as a maximum
of protection: in this situation, states can provide less protection to the specific right
209 See Tom Ginsburg and Eric Posner, “Subconstitutionalism” (2010) 62 Stanford Law Review
1583. See also Gregory v. Ashcroft, 501 U.S. 452, 459 (1991) (Justice O’Connor writing the Opinion
of the US Supreme Court holding that “In the tension between Federal and State power lies the
promise of liberty.”).
210 See also Lorenzo Zucca, Constitutional Dilemmas: Conflicts of Fundamental Legal Rights in
Europe and the United States (OUP 2007) x (explaining how conflicts of rights are unavoidable and
“adjudication in these matters necessarily imposes sacrifices and losses on the part of one or both right-
holders, or the state as the party to the conflict”).
211 See text accompanying nn 163–7.
212 See e.g., Roberto Guastini, Leçons de théorie constitutionnelle (Dalloz 2010) 233 (discussing the
theoretical difficulty of identifying a standard that is intrinsically more favorable to human rights).
213 William Brennan, “State Constitutions and the Protection of Individual Rights” (1977) 90
Harvard Law Review 489, 495. See also Prunyard Shopping Ctr. v. Robins, 447 U.S. 74, 81 (1980) (US
Supreme Court affirming “the authority of the State to exercise its police power [and] its sovereign
right to adopt in its own Constitution individual liberties more expansive that those conferred by the
Federal Constitution”).
38 Of Floors, Ceilings, and Human Rights
than the federal maximum but cannot go beyond it.214 The question whether the
transnational standard for the protection of a given right operates as a floor rather
than as a ceiling is difficult to answer in the abstract.215 Often, in fact, the question
turns out to be a matter of perception. The case of abortion provides a paramount
example. As Chapter 5 will point out in greater detail, in 1973 the US Supreme
Court introduced a federal standard for the protection of the right of women to
choose abortion until viability.216 From the perspective of the right to abortion, the
federal standard operates as a floor, since states are free to go beyond this minimum
and permit an even more favorable regime allowing women to choose whether to
terminate a pregnancy.217 Yet, from the perspective of the right of the unborn, the
federal standard works as a ceiling, as it sets a maximum degree of protection that
states are allowed to accord to that right—since extending this right further would
trigger an impermissible limitation on the right to abortion.218
Tensions between state and transnational human rights standards also exist in
the European multilevel architecture,219 and the notions of floors and ceilings can
also be meaningfully used in the European context. The idea that the ECHR works
as a subsidiary instrument—that is, as a minimum of protection which leaves
contracting parties free to set higher domestic standards—is codified in the
ECHR and repeatedly proclaimed in the case law of the ECtHR.220 Pursuant to
Article 53 ECHR (which is titled “Safeguard for existing human rights”), “Nothing
in this Convention shall be construed as limiting or derogating from any of the
human rights and fundamental freedoms which may be ensured under the laws of
any High Contracting Party or under any other agreement to which it is a Party.”
Under this logic, the ECHR is essentially seen as a floor of protection, which leaves
states free to set their own domestic standards as long as they comply with the
214 A related—but different—situation is that of pre-emption, which occurs when federal law
displaces state law in a given field. Preemption, however, replaces a situation in which multiple
standards coexist with a situation in which only one standard operates—therefore it should be
distinguished from cases where federal law sets a ceiling while leaving in place state standards. The
introduction of a ceiling may, sometimes but not always, anticipate a preemptive effect. On pre-
emption, see Stephen Gardbaum, “The Nature of Preemption” (1994) 79 Cornell Law Review 776.
215 On the difficulty of detecting federal floors and federal ceilings in US law, see William Buzbee,
“Asymmetrical Regulation: Risk, Preemption and the Floor/Ceiling Distinction” (2007) 82 NYU Law
Review 1547.
216 Roe v. Wade, 410 U.S. 113 (1973) (US Supreme Court recognizing a federal constitutional right
right to abortion under the state constitution which is more extensive than the one under the federal
constitution).
218 See Arizona H.B. 2036 (2012) (Arizona statute prohibiting abortion after 20 weeks to protect
the life of the unborn child) invalidated by Isaacson v. Horne, 716 F.3d 1213, 1231 (9th Cir. 2013)
(holding that under contolling US Supreme Court’s precedents, “Arizona may not deprive a woman of
the choice to terminate her pregnancy at any point prior to viability”).
219 See Miriam Aziz, The Impact of European Rights on National Legal Cultures (Hart Publishing
2004). See also Case C-285/98 Tanja Kreil [2000] ECR I-69 (ECJ declaring a provision of the German
Basic Law restricting the role of women in the military to violate the principle of non-discrimination as
recognized in EU secondary law).
220 See Paolo Carozza, “Subsidiarity as a Structural Principle of International Human Rights Law”
221 Compare Bundesverfassungsgericht, BVerfGE 1 BvR 653/96 (1999) (Caroline von Monaco)
(holding that the publication of pictures of the plaintiff in a newspaper was consistent with freedom of
the press) with Von Hannover v. Germany, ECHR [2004] App. No. 59320/00 (holding that the
publication of a picture of the plaintiff in a newspaper violated her right to privacy). But see now Von
Hannover v. Germany (No. 2), ECHR [2012] App. Nos 40660/08 and 60641/08 (GC) (excluding a
violation of the right to privacy).
222 See Takis Tridimas, “Primacy, Fundamental Rights and the Search for Legitimacy” in Miguel
Poiares Maduro and Loïc Azoulai (eds), The Past and Future of EU Law. The Classics of EU Law
Revisited on the 50th Anniversary of the Rome Treaty (Hart Publishing 2010) 98. But see Case C-36/02
Omega [2003] ECR I-9609 (ECJ holding that a German prohibition of the commercialization of laser
videogames simulating killings based on the right of human dignity protected under the German Basic
Law did not violate EU free movement rules) and Case C-112/00 Schmidberger (2003) ECR I-5659
(ECJ holding that the decision of the Austrian government to authorize an environmental protest on
the Brenner Pass disrupting free movement of good for a limited period of time was not incompatible
with EU law).
223 Case C-617/10 Åkerberg Fransson, judgment of 26 February 2013, nyr.
40 Of Floors, Ceilings, and Human Rights
the same offence, violated the principle of ne bis in idem, as recognized by Article 50
of the Charter. In its decision, the ECJ adopted a broad interpretation of the scope
of application of the Charter and found itself competent to rule on the preliminary
reference—an issue that has attracted much critical attention in the scholarship.224
What is important here, however, is how the ECJ actually answered the question.
In its ruling, the ECJ held that “the ne bis in idem principle laid down in Article 50
of the Charter does not preclude a Member State from imposing successively, for
the same acts of non-compliance with declaration obligations in the field of VAT, a
tax penalty and a criminal penalty in so far as the first penalty is not criminal in
nature, a matter which is for the national court to determine.”225 Yet, the ECJ
made clear that “national authorities and courts remain free to apply national
standards of protection of fundamental rights, provided that the level of protection
provided for by the Charter, as interpreted by the Court, and the primacy, unity
and effectiveness of European Union law are not thereby compromised”226 and it
therefore left open the possibility for the referring court to determine “whether the
combining of tax penalties and criminal penalties that is provided for by national
law should be examined in relation to the national standards . . . , which could lead
it, as the case may be, to regard their combination as contrary to those stand-
ards.”227 As such, the ECJ essentially introduced an EU floor for the protection of
the right of ne bis in idem, leaving member states free to provide a higher domestic
standard of protection (e.g., prohibiting administrative sanctions for conduct
already punished by criminal sanctions).
The Melloni case,228 on the contrary, exemplifies the operation of EU human
rights law as a ceiling of protection. In the case at hand, the ECJ was asked by the
Spanish Tribunal Constitucional to rule on EU legislation on the European Arrest
Warrant (EAW), which required the surrender from one state to another of an
individual convicted of a crime in the latter state, even when the trial in the latter
state had taken place in absentia (i.e. without the accused being present), if the
accused had known of the trial but had chosen not to be present. In its preliminary
reference, the Tribunal Constitucional asked whether that arrangement was com-
patible with the right to a fair trial under the Charter and, in the case of
an affirmative answer, whether Spain could apply a more protective standard to
the right to a fair trial, thus conditioning the surrender of the person subject to the
EAW to the re-opening of the trial in the receiving state. The ECJ held that
the legislation on the EAW did “not disregard either the right to an effective judicial
remedy and to a fair trial or the rights of the defence guaranteed by Articles 47 and
48(2) of the Charter respectively.”229 However, the ECJ excluded that Spain
224 On the question of the scope of application of the Charter vis-à-vis the states, see Koen Lenaerts,
“Exploring the Limits of the EU Charter of Fundamental Rights” (2012) 8 European Constitutional
Law Review 375.
225 Fransson (n 223) para 37.
226 Fransson (n 223) para 29. 227 Fransson (n 223) para 36.
228 Case C-399/11 Stefano Melloni, judgment of 26 February 2013, nyr.
229 Stefano Melloni (n 228) para 53.
The dynamics of the European multilevel architecture recast 41
230 Stefano Melloni (n 228) para 57. 231 Stefano Melloni (n 228) para 58.
232 For comment on the decision of the ECJ, see Joseph H. H. Weiler, “Editorial: Human Rights:
Member State, EU and ECHR Levels of Protection” (2013) 24 European Journal of International
Law 471.
233 Torres Pérez (n 3) 71.
234 See Michael Zuckert, “Toward a Corrective Federalism: The United States Constitution,
Federalism and Rights” in Ellis Katz and Alan Tarr (eds), Federalism and Rights (Rowman & Littlefield
1996) 75.
235 See Robert Williams, “In the Glare of the Supreme Court: Continuing Methodology and
236 Compare Plessy v. Ferguson, 163 U.S. 537 (1896) (US Supreme Court holding the practice of
“separate but equal” as constitutional) with Brown v. Board of Education, 347 U.S. 483 (1954)
(mandating school desegregation).
237 Compare Bowers v. Hardwick, 478 U.S. 186 (1986) (US Supreme Court upholding the
constitutionality of laws banning homosexual sex) with Lawrence v. Texas, 539 U.S. 558 (2003)
(declaring sodomy laws unconstitutional).
238 On the evolutive interpretation of the ECHR, see Kanstantsin Dzehtsiarou, “European
Consensus and the Evolutive Interpretation of the European Convention on Human Rights” (2011)
12 German Law Journal 1730. See also Tyrer v. United Kingdom, ECHR [1978] App. No. 5856/72,
para 31 (holding that the ECHR is to be interpreted as a “living instrument”).
239 See Oreste Pollicino, “Legal Reasoning of the Court of Justice in the Context of the Principle of
Equality Between Judicial Activism and Self-Restraint” (2004) 5 German Law Journal 283. See also
Case 43/75 Defrenne v Sabena [1976] ECR 455 (interpreting the principle of “equal pay for equal
work” between men and women as applying from that decision onwards not only to the member states
but also between private parties).
240 Lawrence Friedman, “The Constitutional Value of Dialogue and the New Judicial Federalism”
Court of Human Rights: The Quest for Enhanced Reliance, Coherence and Legitimacy” (2009) 46
Common Market Law Review 105. But see Giuseppe De Vergottini, Oltre il dialogo tra le Corti.
Giudici, diritto straniero, comparazione (Il Mulino 2010).
The dynamics of the European multilevel architecture recast 43
245 See Michael Burgess and Alan Tarr, “Introduction: Sub-National Constitutionalism and
Constitutional Development” in Michael Burgess and Alan Tarr (eds), Constitutional Dynamics in
Federal Systems (McGill-Queen’s UP 2012) 3.
246 Bruce Ackerman, “The Living Constitution” (2007) 120 Harvard Law Review 1738, 1757.
247 See also Ackerman (n 163) and Ackerman (n 168).
248 See Jan Komárek, “Institutional Dimension of Constitutional Pluralism” in Matej Avbelj and
Jan Komárek (eds), Constitutional Pluralism in the European Union and Beyond (Hart Publishing 2012)
231 (warning against adopting a “single-institutional perspective,” which puts too much attention on
courts in the EU system of governance).
249 See Bruno de Witte, “The Closest Thing to a Constitutional Conversation in Europe: The
Semi-Permanent Treaty Revision Process” in Neil Walker et al (eds), Convergence and Divergence in
European Public Law (Hart Publishing 2002) 39.
250 See Paul Craig, The Lisbon Treaty. Law, Politics, and Treaty Reform (OUP 2010).
251 Alessandra Giannelli, “L’adesione dell’Unione europea alla CEDU secondo il Trattato di
Lisbona” [2009] Diritto dell’Unione Europea 684; Sionaidh Douglas-Scott, “The European Union
and Human Rights After the Treaty of Lisbon” (2011) 11 Human Rights Law Review 645.
252 The negotiation process on the accession of the EU to the ECHR has been currently finalized in
a Draft Accession Agreement. Fifth Negotiation Meeting Between the CDDH Ad Hoc Negotiation
Group and the European Commission, Final Report to the CDDH, 5 April 2013, 47 + 1 (2013)008.
See also Council of the European Union, 6–7 June 2013, Doc. 10461/13, p. 15 (indicating that once
the ECJ has had the opportunity to give an opinion on the agreement, the Commission will come
forward with a Council Decision authorizing the signature of the agreement). For comment on the
effect of the accession agreement on the protection of fundamental rights in Europe, see Federico
Fabbrini and Joris Larik, “The Accession of the EU to the ECHR and its Effects” (2014) forthcoming.
253 See also Darinka Piqani, “Arguments for a Holistic Approach in European Constitutionalism:
What Role for National Institutions in Avoiding Constitutional Conflicts between National Consti-
tutions and EU Law” (2012) 8 European Constitutional Law Review 534.
44 Of Floors, Ceilings, and Human Rights
Hence, a comparative perspective helps to bring back the time dimension in the
analysis of constitutional dynamics in a multilevel system. A time-sensitive per-
spective frees the assessment of the interaction between multiple layers from an
idealistic account that crystallizes the relations between states and transnational
standards at a specific point in time and replaces it with the idea of a process of
continuous adjustment and transformation. Moreover, it emphasizes how the
development of rights protection in a pluralist compound does not necessarily
follow a constant line of progress. In the US, the architecture for the protection
of fundamental rights has undergone a gradual evolution from an extremely
decentralized compound, in which the function of rights protection at the central
level was almost non-existent (as was the case prior to the enactment of the
Fourteenth Amendment or, even more markedly, prior to the enactment of the
Bill of Rights) to a relatively centralized structure. Nevertheless, leaving aside
the fact that this evolution has not cancelled the role of the states as protectors of
rights,254 it is important to note that this evolution was neither unavoidable nor
irreversible. In the US, in fact, trends toward centralization and uniformity
have historically been accompanied by trends toward decentralization and
differentiation.255
In other words, there is no inevitable teleology in federal human rights arrange-
ments shaping the evolution of these systems toward centralization and
homogenization. The already-mentioned example of the death penalty in the US
demonstrates how federalism can accommodate both increases and decreases of
federal intervention in the field of human rights. The decision whether to ban the
death penalty was traditionally a matter for the states.256 In 1972, the US
Supreme Court held that capital punishment was unconstitutional, arguing that
the imposition of the death penalty violated the prohibition on “cruel and
unusual punishment” of the federal Bill of Rights and it imposed a moratorium
on state capital punishment.257 In 1976, however, the power to set the relevant
“right to life” standard was handed back to the states, most of which have now
reinstated the death penalty.258 The comparative analysis of the protection of
fundamental rights in the US federal system, therefore, suggests that transform-
ations over time can occur in the direction of either greater centralization or
decentralization in human rights protection in different areas of law, thus
making the system substantially open to the need to accommodate the tensions
between homogeneity and heterogeneity which are at the heart of the federal
arrangement.
254 On the continued importance of sub-national constitutional norms and institutions in the
protection of fundamental rights in the US, see Talbot d’Alemberte, “Rights and Federalism: An
Agenda to Advance the Vision of Justice Brennan” in Ellis Katz and Alan Tarr (eds), Federalism and
Rights (Rowman & Littlefield 1996) 123.
255 See Céline Fercot, “Diversity of Constitutional Rights in Federal Systems” (2008) 4 European
In light of the comparative insights drawn in the previous section, I will now
attempt to rationalize the constitutional dynamics at play in the European
multilevel architecture and advance as a hypothesis an analytical model of the
processes stemming from the overlap and interplay between multiple human rights
standards. This analytical model seeks to abstract and generalize the dynamics
taking place in the European multilevel human rights system in two dimensions:
one synchronic and the other diachronic. According to the first dimension, the
model identifies several challenges that arise in specific human rights areas from the
interaction between different state laws and transnational law.259 According to the
second dimension, the model identifies several transformations taking place in the
European multilevel system which are capable, effectively or potentially, of address-
ing the critical dynamics that can be identified in the functioning of the European
human rights arrangement.
In a multilevel human rights system, the protection of fundamental rights is
synchronically ensured by a plurality of human rights charters and by a plurality
of human rights institutions. The coexistence of a multiplicity of standards in
multilevel human rights architectures such as the European one is at the origin of
complex constitutional dynamics. When the state and transnational standards for
the protection of a specific right differ, the interaction between state and trans-
national law generates possible tensions. Yet, the nature of the dynamics that arise
from the overlap and interplay between different human rights standards depends
on two specific factors. First, it depends on whether the transnational standard
provides: (i) more protection to a specific right than the relevant state standard or
(ii) less protection than the relevant state standard. Secondly, it depends on whether
the transnational standard for the protection of a given right operates: (a) as a ceiling
(i.e. as a maximum standard of protection that cannot be superseded by state law)
or (b) as a floor (i.e. as a minimum standard of protection, that can well be
integrated and enriched by state law).
In a formalistic way, therefore, four dynamics could be distinguished. (1) If
transnational law sets a floor of protection which corresponds to the minimum
existing state standard, no major complication seems to arise since the existence of a
transnational minimum leaves states free to provide a more advanced degree of
protection. (2) If however transnational law sets a floor of protection which is
higher than that provided by state law, this generates a more complicated dynamic.
In this situation, in fact, transnational law puts pressure on the states to enhance
259 To simplify the analysis, I will here jointly consider EU law and ECHR law as a “transnational
law” which interacts with state law. It goes without saying, however, that there are differences in the
standards of protection of specific rights existing at EU and ECHR level which I shall take into account
later. See Dean Spielmann, “Human Rights Case Law in the Strasbourg and Luxembourg Courts:
Conflicts, Inconsistencies and Complementarities” in Philip Alston et al (eds), The EU and Human
Rights (OUP 1999) 757.
46 Of Floors, Ceilings, and Human Rights
their standard of protection at least up to the minimum degree provided at the
transnational level. (3) If, instead, transnational law sets a ceiling of protection
which corresponds to the maximum existing state standard, no major complication
emerges either since, in this situation, transnational law sets a maximum standard
which is in any case as protective, or more protective, than the existing state
standard. (4) If however transnational law sets a ceiling of protection which is
lower than that provided by state law, this generates another critical situation. Here,
in fact, transnational law puts pressure on the states, challenging their more
advanced human rights standards.
As a matter of fact, however, because of the already mentioned horizontal
differences that exist between the states—with states providing what may be termed
(without value connotations) vanguard and laggard degrees of protection for any
given human right—in reality, the interaction between state and transnational law
always simultaneously triggers more than one of these dynamics. When trans-
national law sets a floor for the protection of a given right, that standard may be
lower than the standard provided by some vanguard countries but still exceed the
standards existing in some laggard states. And equally, when transnational law sets a
ceiling for the protection of another right, that standard may be higher than the
standard provided by some laggard countries but still be lower (and thus under-
mining) the standards in force in other vanguard states. As such, it seems possible to
identify two major synchronic constitutional dynamics in the European multilevel
system which, for definitional purposes, I will label the challenge of inconsistency and
the challenge of ineffectiveness.
A challenge of inconsistency emerges in the case of interaction between different
state laws and transnational law, when the latter operates as a floor of protection. By
setting up a minimum standard for the protection of a specific human right,
transnational law challenges the less protective standards existing in some laggard
states and pressures them to enhance their levels of protection at least up to the
degree provided by transnational law. At the same time, by drawing only a
minimum standard of protection, transnational law leaves other vanguard states
free to go above the transnational floor by providing more advanced protection for
the right de quo.
Conversely, a challenge of ineffectiveness emerges in the case of interaction
between different state laws and transnational law, when the latter operates as a
ceiling of protection. By setting a maximum standard for the protection of a specific
human right, transnational law challenges the effectiveness of the more protective
standards existing in the vanguard states, pressuring them toward the bottom-level
protection provided by transnational law. At the same time, as long as it defines a
maximum standard of protection, transnational law leaves unaffected other pre-
existing state standards that do not exceed the transnational ceiling.
The challenges of ineffectiveness and inconsistency represent the synchronic
dynamics in a multilevel system of human rights protection. Figure 1.1 offers a
visual description of this analytical model. The vertical axis shows along a
maximum–minimum continuum the protection given to a specific right x by
three fictional states: state A providing a laggard degree of protection; state C
Challenges and transformations: a model 47
+
C
challenge of ineffectiveness
challenge of inconsistency
A
–
right (x) = degree of protection
260 For a canonical distinction between the three generations of rights, see Thomas Marshall,
Citizenship and Social Class (CUP 1950) (distinguishing between a first generation of civil
rights—acquired during the liberal revolutions of the 18th century—a second generation of
political rights—obtained in the course of the 19th century—and a third generation of social
rights—born out of the experiences of the 20th century).
The structure of the book 49
last few decades.261 By selecting as case studies a civil right (the right to due
process), a political right (the right to vote), a social right (the right to strike),
and a new generation right (the right to abortion), the book seeks to provide the
broadest empirical support for the arguments put forward in this chapter. As will
become clear, the analytical model advanced in this chapter does not change from
one right to another: rather, the dynamics identified here apply across the board,
regardless of whether the right considered is civil, political, social, or new gener-
ation. From this point of view, therefore, the analysis of these different case studies
helps to strengthen the thesis of the book by demonstrating that the model
I advance can be generalized for any human right.
At the same time, in selecting within each of the four generations of rights a case
for the analysis, I have attempted to choose four examples that have been the object
of recent and rich case law and which, therefore, raise particularly interesting
legal questions. Selecting issues such as counter-terrorism law and due process,
migration and voting rights, strike law, and abortion law has allowed me to examine
a number of recent seminal rulings by the ECJ and the ECtHR such as,
to name a few, Kadi,262 Aruba,263 Zambrano,264 Viking,265 Laval,266 Nada,267
Demir & Baykara,268 and A., B. & C.269—not to mention, of course, important
decisions by national courts. Moreover, since in each of these case studies I develop
a comparison with the federal experience of the US, these topics have also offered
the opportunity to take into account key constitutional moments of US history,
such as the Founding, the Reconstruction, the New Deal, the Civil Rights Era, as
well as the (improperly named) war on terror.270 As such, besides advancing a
general model of the dynamics arising in the European multilevel human rights
architecture, the book also addresses several topics of particular relevance, and seeks
to contribute to the analysis of cases which have received special attention in
contemporary legal debates.
Two of these cases (the right to due process and the right to strike) exemplify the
challenge of ineffectiveness; the other two (the right to vote for non-citizens and the
right to abortion) provide evidence of the challenge of inconsistency. In the analysis
261 See Augusto Barbera, “I nuovi diritti: attenzione ai confine” in Licia Califano (ed), Corte
Council and Commission [2008] ECR I-6351 (on due process in the field of counter-terrorism). See also
now Joined Cases C-584/10 P, C-593/10 P and C-595/10 P, Commission, Council and United
Kingdom v. Kadi, judgment of 18 July 2013, nyr.
263 Case C-300/04 Eman & Sevinger (Aruba) [2006] ECR I-8055 (on voting rights).
264 Case C-34/09 Zambrano, judgment of 8 March 2011, nyr (on the substance of the rights
attached to EU citizenship).
265 Case C-438/05 Viking [2007] ECR I-10779 (on the right to strike).
266 Case C-341/05 Laval [2007] ECR I-11767 (on the right to strike).
267 Nada v. Switzerland, ECHR [2012] App. No. 10593/08 (GC) (on counter-terrorism
measures).
268 Demir & Baykara, ECHR [2008] App. No. 34503/97 (GC) (on social rights).
269 A., B. & C. v. Ireland, ECHR [2010] App. No. 25579/05 (GC) (on abortion).
270 On the Reconstruction, the New Deal, and the Civil Rights Era as constitutional moments of
US history, see Ackerman (n 246). On the so-called war on terror, and for a convincing criticism of the
term, see David Cole and James Dempsey, Terrorism and the Constitution (The New Press 2002).
50 Of Floors, Ceilings, and Human Rights
of each case study, however, the chapters follow the same structure. First, I map the
differences that exist at the horizontal level in the EU member states in the
protection of the specific right and suggest reasons for these variations. Secondly,
I consider the vertical impact that supranational law plays in the field and explain
how the interaction between state and transnational law has produced in Europe
either a challenge of ineffectiveness or a challenge of inconsistency. Thirdly, by
adopting a comparative perspective, I highlight how analogous dynamics have
emerged in the federal system for the protection of fundamental rights of the
US. At the same time, I also underline how the example of the US proves that
multi-layered systems are endowed with internal mechanisms to face these chal-
lenges successfully and to enhance the protection of fundamental rights over time.
Finally, I explore the more recent jurisprudential and institutional transformations
taking place in Europe and discuss, also in light of the US experience, what the
future prospects for the protection of each of these rights could or should be in
Europe.
In Chapter 6 I will draw the analyses together and verify whether the case studies
validate the analytical model of the dynamics at play in the European multilevel
systems that I have advanced as a hypothesis in this chapter. By connecting the four
case studies, I will emphasize a number of recurring patterns in the protection of
fundamental rights in the European multilevel human rights system, as well as
re-assess the pace of integration in Europe and in the US federal experience. Based
on this analytical discussion, I will seek to advance some prescriptive observations,
suggesting the normative lessons that the examination of several cases studies yields
and how these fit within the broader theoretical debate on the protection of
fundamental rights in the European multilevel architecture.
2
The Right to Due Process for
Suspected Terrorists
1. Introduction
The right to due process—widely formulated as the right of an individual, whose
liberty or property has been subjected to restrictive measures by a governmental
authority, to: (1) receive information on the reasons justifying the restrictive
measures taken again him or her; (2) access an independent institution to obtain
redress; and (3) receive fair and just proceedings by which his or her claims can be
impartially heard and adjudicated—is a defining feature of the tradition of liberal
constitutionalism, based on the idea that fundamental rights are a natural and
inalienable right of every person that must be protected against the encroachment
of political power.1 It is well known, however, that the terrorist attacks of 11
September 2001 (9/11) and the responses to it have put the protection of due
process rights under severe pressure in many countries worldwide. National gov-
ernments as well as international institutions such as the United Nations (UN),
reacted to 9/11 by adopting several restrictive counter-terrorism measures, ranging
from asset freezing to preventive detention or even preventive strikes.2 These
measures, however, have often significantly hampered the protection of fundamen-
tal rights—and primarily of due process rights—and raised the question whether
the judiciary should have the authority to step into the field of national security to
ensure effective protection of human rights.3
The purpose of this chapter is to analyze the protection of due process rights
for suspected terrorists after 9/11 in Europe. The chapter examines the stance
adopted by several member states in the fight against terrorism, and the increasing
1 See, inter alia, Augusto Barbera, Le basi filosofiche del costituzionalismo (Laterza 1996); András
Sajó, Limiting Government: An Introduction to Constitutionalism (CEU Press 1999); Stephen Breyer,
Active Liberty (Knopf 2005).
2 For an assessment of post-9/11 counter-terrorism policies, see David Cole and James Dempsey,
Terrorism and the Constitution (The New Press 2002) (on the US); Kim Lane Scheppele, “The
Migration of the Anti-Constitutional Ideas: The Post-9/11 Globalization of Public Law and the
International State of Emergency” in Sujit Choudhry (ed), The Migration of Constitutional Ideas
(CUP 2006) 347 (on the UN).
3 See the report of UN Special Rapporteur Martin Scheinin on “The protection of human rights
and fundamental freedoms while countering terrorism,” A/61/267 (2006), and the conclusions of the
UN High Commissioner for Human Rights on “The protection of human rights and fundamental
freedoms while countering terrorism,” A/HRC/8/13 (2008).
52 The Right to Due Process for Suspected Terrorists
involvement of the European Union (EU)—formerly the European Community
(EC)—in the field of national security over the past decade. The chapter argues that
the implementation at the EU level of a restrictive anti-terrorism financing regime
initially created a challenge for the effectiveness of due process guarantees in
Europe. While national courts had responded unevenly to calls for due process
protection in the aftermath of 9/11—some of them striking a “security-sensitive”
approach, but others living up to the task of defending core principles of procedural
justice even in times of emergency—in their first decisions the EU courts gave wide
discretion to the political branches of government in the fight against terrorism and
exercised only superficial oversight of due process claims raised by individuals and
entities targeted by counter-terrorism sanctions.4 By setting a low-level ceiling for
the protection of the due process rights of suspected terrorists, these decisions
precluded those affected by EU counter-terrorism measures implementing UN
sanctions from obtaining redress in the EU judicial system and simultaneously
prevented EU member states from applying more advanced standards of due
process protection in their domestic legal systems.
This chapter compares the constitutional dynamics occurring in Europe with
those at play in the United States (US). After 9/11, the US government was at the
forefront of what came to be called—inappropriately—the “global war on terror.”
At the same time, the US is a federal system of government in which law
enforcement powers are shared by the states and federal government and due
process rights are enshrined in the state and federal constitutions. In the aftermath
of 9/11, the federal government enacted a number of sweeping counter-terrorism
measures, which threatened core federal constitutional guarantees, but also put
under pressure state due-process standards. In this context, it was left to the US
federal judiciary to strike a new balance between national security and individual
liberties and gradually to enhance the federal standard of due process applied in the
area of counter-terrorism. In particular, in a stream of litigation dealing with the
legality of indefinite detention, the US Supreme Court sought ways to improve the
process due to individuals suspected of terrorist activities: while in its earlier
decisions the US judiciary gave ample leeway to the political branches of govern-
ment to pursue their preferred strategy in the fight against terrorism,5 over time the
Supreme Court reaffirmed its central role in the constitutional balance of powers
and took seriously its duty to protect core principles of procedural justice even in
the national security setting.6
As the chapter underlines, a similar development occurred in the EU. Gradually
departing from their first deferent rulings, the EU courts improved the degree of
protection afforded to the right of due process for suspected terrorists and curbed
the action of the EU institutions in counter-terrorism. In particular, in the
4 See Case T-351/01 Yassin A. Kadi v. Council of the EU and Commission of the EC [2005] ECR II-
3649 and Case T-306/01 Ahmed A. Yusuf and Al Barakaat International Foundation v. EU Council and
Commission [2005] ECR II-3533.
5 See Yaser E. Hamdi et al v. Donald H. Rumsfeld et al, 542 U.S. 507 (2004).
6 See Boumediene v. Bush, 553 U.S. 723 (2008).
Context 53
7 Joined Cases C-402/05 P and C-415/05 P Yassin A. Kadi and Al Barakaat International
10 See Nicolò Trocker, “ ‘Civil Law’ e ‘Common Law’ nella formazione del diritto processuale
europeo” [2007] Rivista italiana di diritto pubblico comunitario 421, 435 and Eva Storskrubb and
Jacques Ziller, “Access to Justice in European Comparative Law” in Francesco Francioni (ed), Access to
Justice as a Human Right (OUP 2007) 177.
11 See Sabino Cassesse, “Il diritto amministrativo e i suoi principi” in Sabino Cassese (ed),
Istituzioni di diritto amministrativo (Giuffrè 2006); Takis Tridimas, The General Principles of EU
Law (2nd ed OUP 2006) 370 ff. See also, from a global perspective, Sabino Cassese, “A Global Due
Process of Law?” in Gordon Anthony et al (eds), Values in Global Administrative Law (Hart Publishing
2011) 17.
12 On the challenges to due process rights after 9/11, see Adam Tomkins, “National Security and
Due Process of Law” [2011] Current Legal Problems 1; Enzo Cannizzaro, “The Machiavellian
Moment? The UN Security Council and the Rule of Law” (2006) 13 International Organizations
Law Review 195.
13 I draw the expressions “vanguard” and “laggard” states from Ann Althouse, “Vanguard States,
Laggard States: Federalism and Constitutional Rights” (2003–04) 152 University of Pennsylvania Law
Review 1745 (speaking about the “vanguard” and the “laggard” states to distinguish between the most
protective and the least protective regimes for the protection of fundamental rights at the state level in
the US federal system of government).
14 For a more thorough overview, notably of national courts’ review of counter-terrorism sanctions
mandated by the UN, see John Dugard, “Judicial Review of Sanctions” in Vera Gowlland-Debbas et al
(eds), United Nations Sanctions and International Law (Kluwer 2005) 83 and Gavin Sullivan and Ben
Hayes, Blacklisted: Targeted Sanctions, Preemptive Security and Fundamental Rights (European Centre
for Constitutional and Human Rights 2011).
15 On the role of courts in the field of counter-terrorism in Germany, see James Beckman,
Comparative Legal Approaches to Homeland Security and Anti-Terrorism (Ashgate 2007) 107.
Context 55
legislation from the German government for violation of human rights,16 but the
Bundesgerichtshof also ensured that individuals indicted on terrorism charges were
given full due process protection: in the El Mottasadeq case,17 for example, the
Bundesgerichtshof annulled a decision by a lower court convicting a suspected
terrorist, arguing that the impossibility for the accused to challenge the evidence
against him (because it had been withheld by the German secret services) repre-
sented a violation of the right to a fair trial.18
A “human rights friendly” position also seems to have been adopted by the
Belgian courts. In the 2005 case of Sayadi & Vinck, two Belgian nationals who,
under suspicion of financing terrorism, had been included in a UN “blacklist”
without any due process of law, challenged the Belgian administrative measure
implementing the UN resolutions which froze their assets. The Burgerlijke Re-
chtbank van Eerste Aanleg of Brussels ruled in favor of the applicants and ordered
the Belgian state, under the penalty of a daily astreinte, to ensure their delisting
before the competent organs of the UN.19 Since the decision was not appealed, it
became final. Nevertheless, the Belgian court proved unable to ensure an effective
remedy for the applicants: despite the court’s ruling, the two applicants did not
obtain access to their financial assets until the UNSC approved their delisting in
2009 and, for that reason, in 2008 Belgium was eventually found to be in violation
of the International Covenant on Civil and Political Rights by the Human Rights
Committee.20
A mixed picture also emerges when assessing the role of the courts in the UK
after 9/11.21 Although the House of Lords delivered several noteworthy decisions
in the field of national security,22 the courts initially demonstrated some reluctance
in scrutinizing the action of the political branches, especially if mandated by the
UNSC. In Al-Jedda,23 for instance, the House of Lords affirmed that an act
authorized by a UNSC resolution would escape judicial review of its conformity
16 See e.g., BVerfGE 59 NJW 751 (2006) (German Constitutional Court striking down the 2005
federal Air-Transport Security Act which empowered the federal Ministry of Defense to order the
shooting down of an aircraft suspected of being hijacked by terrorists, holding that the act was
incompatible with the constitutional protection of fundamental rights, notably the right to life and
to human dignity). For a comment on the decision, see Oliver Lepsius, “Human Dignity and the
Downing of Aircraft: The German Federal Constitutional Court Strikes Down a Prominent Anti-
Terrorism Provision in the New Air-Transport Security Act” (2007) 7 German Law Journal 761.
17 See BGHSt 49, 112 (2004).
18 For a comment on the decision, see Max Putzer, “Terrorism and Access to Justice:
A Comparative Approach in the Field of Security versus Liberty,” Sant’Anna Legal Studies Working
Paper No. 2, 2012.
19 See Civ. (4ème Ch.), 11 February 2005, Sayadi and Vinck c. Etat belge, not published. On the
UN system of listing individuals suspected of financing terrorism see text accompanying nn 35–40.
20 See Human Rights Committee, CCPR/C/94/D/1472/2006, Decision in case Sayadi and Vinck
Security and the Role of the Court: A Changed Landscape?” (2010) 126 Law Quarterly Review 543.
22 See e.g., the Belmarsh case: A. and others v. Secretary of State for the Home Dept. [2004] UKHL 56
(House of Lords holding that a provision of the Anti-Terrorism, Crime and Security Act 2001, 49 Eliz.
2, c. 24 which allowed the indefinite detention of non-nationals without trial was incompatible with
the ECHR).
23 R (On the application of Al-Jedda) v. Secretary of State [2007] UKHL 58.
56 The Right to Due Process for Suspected Terrorists
with the human rights principles recognized by the Human Rights Act.24 The case
concerned the legality of the detention of a British citizen by the UK military
during the Iraq war; a detention which was, however, allegedly authorized by a
UNSC resolution.25 The House of Lords thus rejected the applicant’s claim, ruling
that the UN Charter (and the resolutions adopted by the UNSC) enjoyed suprem-
acy even over the ECHR, since this was “necessary for imperative reasons of
security.”26 The decision, therefore entirely displaced the protection of ECHR
rights in the case.
Also in France, ordinary courts manifested a “security-sensitive” approach in
reviewing counter-terrorism measures.27 For example, the French Conseil d’Etat
in its judgment in Association Secours Mondial,28 found itself competent to review
an administrative act freezing the funds of an entity allegedly involved in the
financing of terrorism.29 In exercising its review, however, the Conseil d’Etat
employed manifest error of appreciation as the standard of scrutiny,30 and concluded:
“considering . . . that . . . some days after the publication in the official Journal of the
French Republic of the decree which is now challenged, the applicant entity was
added to the list drafted and periodically revised by the Committee created by
Resolution 1267 of the United Nations Security Council and that with Regulation
EC No 1893/2002 of 23 October 2002, the Commission . . . had equally listed the
[entity] on the list of natural and legal persons against whom the Council of the
European Union has adopted financially restrictive measures, it does not emerge
from the facts of the case that the Minister has, in these circumstances, made any
error of appreciation.”31 From this point of view, the decision to use the “manifest
24 For a comment on the decision, see Francesco Messineo, “The House of Lords in Al Jedda and
Public International Law: Attribution of Conduct to UN-Authorized Forces and the Power of the
Security Council to Displace Human Rights” (2009) 56 Netherlands International Law Review 35.
25 S/RES/1546 (2004). See also S/RES/1637 (2005); S/RES/1723 (2006).
26 Al-Jedda (n 23) (Lord Bingham of Cornhill) para 39.
27 On the role of courts in the field of counter-terrorism in France, see Carolina Cerda-Guzman,
“La Constitution: un arme efficace dans le cadre de la lutte contre le terrorisme?” [2008] Revue
française de droit constitutionnel 73.
28 C.E. No. 262626, Association Secours Mondial de France, judgment 3 November 2004.
29 See Stanislas Adam, “Overcoming Dissonance to Reshape Coherence: The European Court of
Justice, Terrorist Lists and the Rule of Law” in Giuseppe Martinico et al (eds), Shaping Rule of Law
Through Dialogue (Europa Law Publishing 2009) 193, 197.
30 According to Wojciech Sadurski, “ ‘Reasonableness’ and Value Pluralism in Law and Politics,”
EUI Working Paper Law No. 13, 2008, 4, “manifest error of appreciation” represents a weak test for
judicial review and “only extremely irrational, arbitrary, unwise legal rules will fall victim of such test of
reasonableness.” However, since the ruling in the case C.E. Ministre de l’Equipment et du Logement c.
Fédération des Défenses des Personnes Concernees par le Projet Ville Nouvelle Est de Lille, judgment 28
May 1971, it has been customary for the Conseil d’Etat to employ a stronger test for reviewing the
legality of administrative acts, which resembles proportionality analysis.
31 Association Secours Mondial, (n 28) 7iéme considérant (my translation: “considérant . . . que . . .
quelques jours après la parution au JORF du décret attaqué, l’association requérante a été inscrite sur la
liste élaborée et mise à jour périodiquement par le comité du Conseil de sécurité créé par la résolution
1267 du Conseil de sécurité des Nations-Unies et que par le règlement CE no 1893/2002 du 23
octobre 2002, la Commission . . . a également inscrit [l’association] sur la liste des personnes et entités
pour lesquelles le Conseil de l’Union européenne a institué des mesures financières restrictives, il ne
ressort pas des pièces du dossier que le ministre . . . a, dans ces circonstances, commis une erreur
d’appréciation”).
Challenge 57
32 On the test of judicial review utilized in French constitutional law, see Federico Fabbrini,
Counter-Terrorist Policies and Fundamental Rights: The Case of Individual Sanctions (OUP 2009); Cian
Murphy, EU Counter-Terrorism Law: Pre-Emption and the Rule of Law (Hart Publishing 2012).
35 See Annalisa Ciampi, Sanzioni del Consiglio di Sicurezza e diritti umani (Giuffrè 2007); Daniel
Halberstam and Eric Stein, “The United Nations, the European Union and the King of Sweden:
Economic Sanctions and Individual Rights in a Plural World Order” (2009) 46 Common Market Law
Review 13. On the UN sanction regime more generally, see Georges Abi-Saab, “The Concept of
Sanction in International Law” in Vera Gowlland-Debbas et al (eds), United Nations Sanctions and
International Law (Kluwer 2005) 29; Jeremy Farrall, The United Nations Sanctions and the Rule of Law
(CUP 2007).
36 The employment of counter-terrorism sanctions at the UN level began prior to 9/11: see e.g.,
S/RES/1267 (1999), S/RES/1333 (2000), S/RES/1363 (2001). However, the employment of counter-
terrorism sanctions steadily grew after the terrorist attacks in the US: see e.g., S/RES/1373 (2001),
S/RES/1452 (2002), S/RES/1455 (2003), S/RES/1526 (2004), S/RES/1535 (2004), S/RES/1566
(2004), S/RES/1617 (2005), S/RES/1730 (2006), S/RES/1735 (2006), S/RES/1822 (2008), S/RES/
1904 (2009), S/RES/1989 (2011). See Luigi Condorelli, “Les attentats du 11 septembre et leur suites:
où va le droit international?” [2001] Revue générale de droit international public 829; Peter Fitzgerald,
“Responding to Rogue Regimes: From Smart Bombs to Smart Sanctions. Managing ‘Smart Sanctions’
Against Terrorism Wisely” (2002) 36 New England Law Review 957.
58 The Right to Due Process for Suspected Terrorists
all the members of the UNSC are represented) endowed with the power to draw up
a “blacklist” of natural and legal persons suspected of being involved in terrorist
activities.37 In the Sanctions Committee, the diplomatic representatives of the
members of the UNSC directly identify those persons who are to be targeted by
the sanctions. The listing procedure is essentially informal, governed by consensus,
and based on the often limited and confidential information gathered by the
security services of the member states of the UNSC.38 Once an individual or an
entity is included in the blacklist, all UN member states are required to give effect
to the determinations of the Sanctions Committee in their domestic legal systems,
practically freezing the assets of the individuals and entities identified by the
UNSC. In fact, since the counter-terrorism framework established by the UNSC
is based on Chapter VII of the UN Charter, which grants power to the UNSC to
take all measures necessary for the maintenance of international peace and secur-
ity,39 its resolutions are binding on all UN member states and must be faithfully
executed in their domestic legal systems.40
Due to the economic implications of UN sanctions, EU member states decided
to implement them through legislative measures adopted within the EU frame-
work.41 Prior to the entry into force of the Lisbon Treaty, the legal regime for the
37 The Committee was established by S/RES/1267 (1999). Its powers and rules of procedure were
then modified by successive resolutions. See e.g., S/RES/1333 (2000), S/RES/1363 (2001), S/RES/
1390 (2002), S/RES/1452 (2002), S/RES/1455 (2003), S/RES/1526 (2004), S/RES/1566 (2004),
S/RES/1617 (2005), S/RES/1730 (2006), S/RES/1735 (2006), S/RES/1822 (2008), S/RES/1904
(2009). See Eric Rosand, “The Security Council’s Efforts to Monitor the Implementation of Al Qaeda/
Taliban Sanctions” (2004) 98 American Journal of International Law 745; Jochen Frowein, “The
Anti-Terrorism Administration and the Rule of Law” in Pierre-Marie Dupuy et al (eds), Common
Values in International Law. Festschrift Tomuschat (Engel Verlag 2006) 785. Recently, Resolutions
S/RES/1988 (2011) and S/RES/1989 (2011) have introduced relevant changes to the Committee’s
sanction system by creating a distinction between two “blacklists”—a country-specific for the Taliban
and a general one for individuals and entities associated with Al-Qaida.
38 For an overview of the administrative procedure governing the functioning of the Sanctions
Committee, see Clemens Feinaugle, “The UN Security Council Al-Qaida and Taliban Sanctions
Committee: Emerging Principles of International Institutional Law for the Protection of the Individ-
uals?” (2008) 9 German Law Journal 1513. Recently, however, Resolutions S/RES/1988 (2011) and
S/RES/1989 (2011) have introduced significant innovations in the administrative functioning of the
Sanctions Committee. In particular, an independent ombudsperson can now hear individual requests
for delisting and make a decision which becomes final unless within 60 days the Sanctions Committee
decides by consensus to retain the suspected individual or entity on the blacklist. Absent consensus,
however, member states can refer the matter to the Security Council where usual rules (including veto
rules by permanent members) apply.
39 For an introduction to Chapter VII of the UN Charter and commentary on the articles, see
Jochen Frowein and Nico Krisch, “Chapter VII: Action with Respect to Threats to Peace, Breaches of
Peace and Acts of Aggression” in Bruno Simma et al (eds), The Charter of the United Nations.
A Commentary, Vol. 1 (2nd ed OUP 2002) 701; see also Erika de Wet, The Chapter VII Powers of
the United Nations Security Council (Hart Publishing 2004).
40 Art 25 of the UN Charter states, in fact, that “the Members of the United Nations agree to accept
and carry out the decisions of the Security Council in accordance with the present Charter.” See Jost
Delbrück, “Article 25” in Bruno Simma et al (eds), The Charter of the United Nations. A Commentary.
Vol. 1 (2nd ed OUP 2002) 452.
41 See Martin Nettesheim, “UN Sanctions Against Individuals: A Challenge to the Architecture of
the EU Governance” (2007) 44 Common Market Law Review 567, 571. For a general overview of the
constitutional foundations of the external relations of the EU, see Piet Eeckhout, External Relations of
the European Union: Legal and Constitutional Foundations (OUP 2004).
Challenge 59
42 See e.g., Council Common Position 1999/727/CFSP, OJ 1999 L 294/01; Council Common
targeting individuals and entities, see Amandine Garde, “Is it Really for the European Community to
Implement Anti-Terrorism UN Security Council Resolutions?” (2006) 65 Cambridge Law
Journal 284.
44 See e.g., Council Regulation 337/2000/EC, OJ 2000 L 43/01; Council Regulation 881/2002/
applicable” in all EU member states. The intervention of a national administrative agency (e.g.,
banking authorities, police forces etc.) is, however, necessary to give full effect to the regulation. See
on the states’ measures for asset freezing, e.g., Mario Savino, “La disciplina italiana della lotta al
finanziamento del terrorismo” [2008] Giornale di diritto amministrativo 497 (on Italy); Torbjörn
Andersson et al, “EU Blacklisting: The Renaissance of Imperial Power, but on a Global Scale” (2003)
14 European Business Law Review 111 (on Sweden).
46 The Lisbon Treaty abolished the pillar structure of the EU but left a set of ad hoc rules in the area
of the CFSP. See Marise Cremona, “The Union External Action: Constitutional Perspectives” in
Giuliano Amato et al (eds), Genesis and Destiny of the European Constitution (Bruylant 2007) 1194. Art
215 TFEU now makes explicit the power for the EU to enact restrictive measures to implement foreign
and security strategies:
1. Where a decision, adopted in accordance with Chapter 2 of Title V of the Treaty on
European Union, provides for the interruption or reduction, in part or completely, of
economic and financial relations with one or more third countries, the Council, acting by a
qualified majority on a joint proposal from the High Representative of the Union for
Foreign Affairs and Security Policy and the Commission, shall adopt the necessary meas-
ures. It shall inform the European Parliament thereof. 2. Where a decision adopted in
accordance with Chapter 2 of Title V of the Treaty on European Union so provides, the
Council may adopt restrictive measures under the procedure referred to in paragraph
1 against natural or legal persons and groups or non-State entities.
Art 43(1) TEU, at the same time, now makes clear that action in the field of the CFSP “may contribute
to the fight against terrorism.”
60 The Right to Due Process for Suspected Terrorists
legislative procedure, a regulation providing for the “freezing of funds, financial
assets or economic gains belonging to, or owned or held by, natural or legal persons,
groups or non-State entities.”47 Regulations are then directly applicable in all
member states. Therefore, even in the post-Lisbon regime, a series of legal measures
of identical content (CFSP acts, regulations, and national administrative measures)
continue to be utilized to give effect to UN counter-terrorism sanctions in Europe.
Smart sanctions have a significant impact on the fundamental rights of targeted
individuals and entities.48 In particular, the right to due process would require, as a
minimum, that before the adoption of sanctions or immediately afterwards,
interested persons are informed of the reasons justifying the restrictive measure
taken against them and have the right to defend themselves by accessing a neutral
and independent decision-maker.49 Nonetheless, wide consensus exists among
scholars about the deficiencies of the procedure by which the auxiliary committee
of the UNSC identifies those persons subject to counter-terrorism sanctions:
because of the political and diplomatic mechanisms by which listings take place,
significant violations of fundamental rights have been underlined.50 In light of the
serious consequences produced by economic sanctions, blacklisted individuals and
entities soon began to challenge the legality of these measures. However, no
international court had jurisdiction to review the compatibility of UN-targeted
sanctions with fundamental rights:51 No judicial institution has, in fact, ever been
47 Art 75(1) TFEU, therefore, now makes explicit the legal basis of the EU in the field by
stating that:
Where necessary to achieve the objectives set out in Article 67, as regards preventing and
combating terrorism and related activities, the European Parliament and the Council,
acting by means of regulations in accordance with the ordinary legislative procedure, shall
define a framework for administrative measures with regard to capital movements and
payments, such as the freezing of funds, financial assets or economic gains belonging to, or
owned or held by, natural or legal persons, groups or non-State entities.
See Marise Cremona, “EC Competences, ‘Smart Sanctions’ and the Kadi Case” (2009) 28 Yearbook of
European Law 559.
48 See Bardo Fassbender, “Targeted Sanctions Imposed by the UN Security Council and Due
Process Rights” (2006) 13 International Organizations Law Review 437; Iain Cameron, “UN Targeted
Sanctions, Legal Safeguards and the European Convention on Human Rights” (2003) 72 Nordic
Journal of International Law 159.
49 See generally Martin Shapiro, “The Giving Reasons Requirement” [1992] University of Chicago
Legal Forum 179 and Dinah Shelton, “Remedies and the Charter of Fundamental Rights of the
European Union” in Steve Peers and Angela Wards (eds), The European Charter of Fundamental Rights:
Politics, Law and Policy (Hart Publishing 2004) 349.
50 See August Reinish, “Developing Human Rights and Humanitarian Law Accountability of the
Security Council for the Imposition of Economic Sanctions” (2001) 95 American Journal of Inter-
national Law 851; Frederic Mégret and Florian Hoffman, “The UN as a Human Rights Violator?
Some Reflections on the United Nations Changing Human Rights Responsibilities” (2003) 25
Human Rights Quarterly 314.
51 See Jessica Almqvist, “A Human Rights Critique of European Judicial Review: Counter-Terror-
ism Sanctions” (2008) 57 International & Comparative Law Quarterly 303; Takis Tridimas and Jose
Gutierrez-Fons, “EU Law, International Law and Economic Sanctions against Terrorism: The Judi-
ciary in Distress?” (2008) 32 Fordham International Law Journal 660.
Challenge 61
52 See Nettesheim (n 41) 568. See also Dapo Akande, “The International Court of Justice and the
Security Council: Is there Room for Judicial Control of Decisions of the Political Organs of the United
Nations” (1997) 46 International & Comparative Law Quarterly 341.
53 The ICJ did not exclude this possibility in its judgment Legal Consequences for States of the
Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council
Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 16, but so far it has not accepted the
authority to judge the validity of acts of the UNSC either.
54 Giacinto Della Cananea, “Global Security and Procedural Due Process of Law Between the
United Nations and the European Union: Kadi v. Council ” (2009) 15 Columbia Journal of European
Law 519, 523. See also Erika de Wet, “The Role of Human Rights in Limiting the Enforcement Power
of the UN Security Council: A Principled View” in Erika de Wet and André Nollkaemper (eds),
Review of the Security Council by Member States (Intersentia 2003) 7.
55 See further, Federico Fabbrini, “Judicial Review of United Nations Counter-Terrorism Sanc-
tions in the European Multilevel System of Human Rights Protection: A Case Study in Ineffectiveness”
in Filippo Fontanelli et al (eds), Shaping Rule of Law Through Dialogue (Europa Law Publishing 2009),
125.
56 On the impact of the Lisbon Treaty on the jurisdiction of the ECJ, see text accompanying n 251.
57 According to ex Art 35(2) TEU, “by a declaration made at the time of signature of the Treaty of
Amsterdam or at any time thereafter, any Member State shall be able to accept the jurisdiction of the
Court of Justice to give preliminary rulings as specified in paragraph 1.” Ex Art 35(3) TEU then stated
that:
a Member State making a declaration pursuant to paragraph 2 shall specify that either: a)
any court or tribunal of that State against whose decisions there is no judicial remedy under
national law may request the Court of Justice to give a preliminary ruling on a question
raised in a case pending before it and concerning the validity or interpretation of an act
referred to in paragraph 1 if that court or tribunal considers that a decision on the question
is necessary to enable it to give judgment; or b) any court or tribunal of that State may
request the Court of Justice to give a preliminary ruling on a question raised in a case
pending before it and concerning the validity or interpretation of an act referred to in
paragraph 1 if that court or tribunal considers that a decision on the question is necessary to
enable it to give judgment.
See also Anthony Arnull, “Les incidences du traité d’Amsterdam sur la Cour de Justice des CE” [2002]
Revue des affaires européenne 227.
62 The Right to Due Process for Suspected Terrorists
decisions could then be brought by the member states or the Commission.58
Common positions were not contemplated among those acts that were subject
to review before the ECJ.59 On the other hand, the jurisdiction of the ECJ
over measures adopted under the first pillar was formally recognized in the
TEC. The validity of EC acts could be challenged by an action for annulment
under former Article 230 TEC (now Article 263 TFEU)60 and the preliminary
reference procedure under former Article 234 TEC (now Art 267 TFEU).61
At the same time, the ECJ had recognized in its landmark Johnston decision62
that “the requirement of judicial control . . . reflects a general principle of law
which underlies the constitutional traditions common to the member states.
That principle is also laid down in Articles 6 and 13 of the ECHR . . . and
as the Court has recognized in its decisions, the principles on which that
Convention is based must be taken into consideration in EC Law.”63 By virtue
of this judgment, therefore, “all persons have the right to obtain an effective
remedy in a competent court against measures which they consider to be contrary
to” their fundamental rights.64
Nevertheless, in the Kadi 65 decision of 2005 the EU Court of First Instance
(CFI) abdicated from its task of protecting due process rights, holding that an EC
58 According to ex Art 35(1) TEU, the ECJ “shall have jurisdiction, subject to the conditions laid
down in this Article, to give preliminary rulings on the validity and interpretation of framework
decisions, and decisions on the interpretation of conventions established under this title and on the
validity and interpretation of the measures implementing them.” According to ex Art 35(6) TEU, then,
“the Court of Justice shall have jurisdiction to review the legality of framework decisions and decisions
in actions brought by a Member State or the Commission on grounds of lack of competence,
infringement of an essential procedural requirement, infringement of this Treaty or of any rule of
law relating to its application, or misuse of powers.” See also Eleanor Spaventa, “Fundamental What?
The Difficult Relationship Between Foreign Policy and Fundamental Rights” in Marise Cremona and
Bruno de Witte (eds), EU Foreign Relations Law: Constitutional Fundamentals (Hart Publishing
2008) 233.
59 See Steve Peers, “Salvation Outside the Church: Judicial Protection in the Third Pillar After the
Pupino and Segi Judgments” (2007) 44 Common Market Law Review 883, 886.
60 According to ex Art 230(4) TEC “any natural or legal person may, under the same conditions,
institute proceedings against a decision addressed to that person or against a decision which, although
in the form of a regulation or a decision addressed to another person, is of direct and individual concern
to the former.” For a critical assessment of the debate concerning the restrictive interpretation of the
locus standi provision of Art 230(4) TEC, see Xavier Lewis, “Standing of Private Plaintiffs to Annul
Generally Applicable European Community Measures” (2003) 30 Fordham International Law Journal
1469.
61 According to ex Art 234(1) TEC the ECJ “shall have jurisdiction to give preliminary rulings
concerning (a) the interpretation of this Treaty; (b) the validity and interpretation of acts of the
institutions of the Community” upon referral by a national court. See Adelina Adinolfi, L’accertamento
in via pregiudiziale della validità degli atti comunitari (Giuffrè 1997).
62 Case 222/84 Johnston v. Chief Constable of the Royal Ulster [1986] ECR 1651.
63 Johnson (n 62) para 18.
64 Johnson (n 62) para 19. See also Carol Harlow, “Access to Justice as a Human Right: The
European Convention and the European Union” in Philip Alston et al (eds), The EU and Human
Rights (OUP 1999) 187, 191.
65 Case T-351/01 Yassin A. Kadi v. Council of the EU and Commission of the EC [2005] ECR II-
3649. See also Case T-306/01 Ahmed A. Yusuf and Al Barakaat International Foundation v. EU Council
and Commission [2005] ECR II-3533.
Challenge 63
66 Nikolas Lavranos, “Judicial Review of UN Sanctions by the CFI” (2006) 11 European Foreign
Affairs Review 471; Piet Eeckhout, “Community Terrorism Listing, Fundamental Rights and UN
Security Council Resolution: In Search of the Right Fit” (2007) 3 European Constitutional Law
Review 183.
67 Council Regulation 881/2002, OJ 2002 L 139/9. 68 S/RES/1390 (2002).
69 Kadi (n 65) para 178. 70 Kadi (n 65) para 181.
71 The judgment therefore confirms great respect for international law, and is consistent with a
constitutional reading of Art 103 of the UN Charter. See Bardo Fassbender, “The UN Charter as
Constitution of the International Community” (1998) 36 Columbia Journal of Transnational Law
529. For that reason, the internationalism of the CFI decision has been praised by some: see e.g., Petros
Stangos and Georgios Gryllos, “Le droit communautaire à l’épreuve des réalités du droit international:
leçons tirées de la jurisprudence communautaire récente relevant de la lutte contre le terrorisme
international” [2006] Cahiers de Droit Européen 466. Nonetheless, a series of questions has been
raised about the relationship between the legal orders of the UN, the EU, and the EU member states.
For an assessment of the debate in light of the subsequent ECJ judgment, distinguishing between
constitutionalist vs. pluralist approaches to international law, see in particular Halberstam and Stein (n
35) 43 ff and Gráinne de Búrca, “The European Court of Justice and the International Legal Order
after Kadi” (2010) 51 Harvard Journal of International Law (2010) 1, 37 ff as well as the literature
cited in n 220.
72 Kadi (n 65) para 193. But see Nettesheim (n 41) 574 (stating that this argument is “somewhat
surprising”).
73 Kadi (n 65) para 203. On the so-called theory of succession, see Joined Cases C-21/72 and C-24/
72 International Fruit Company [1972] ECR 1219 (ECJ holding that the EC had assumed all the
responsibilities of the member states in the field now covered by EC law under the General Agreement
on Tariffs and Trade (GATT)). For a defence of the theory in the present case, see Christian
Tomuschat, “Case Note: Kadi v. EU Council and Commission” (2006) 43 Common Market Law
Review 537, 542–3.
74 This position seems to contradict the normal understanding of the hierarchy of norms within the
EC legal order: see Allan Rosas, “The European Court of Justice and Public International Law” in Jan
Wouters et al (eds), The Europeanisation of International Law (CUP 2008) 71, 78.
64 The Right to Due Process for Suspected Terrorists
In light of this interpretation of the hierarchy of norms, the CFI took the view
that “a limitation of [its] jurisdiction [wa]s necessary”75 here, since “any review of
the internal lawfulness of the contested regulation, especially having regard to the
provisions or general principles of EC law relating to the protection of fundamental
rights, would . . . imply that the court is to consider, indirectly, the lawfulness of ” a
superior UNSC resolution.76 However, to avoid full “judicial abdication”77 which
would have produced a complete “deficiency in the protection of fundamental
rights,”78 the CFI declared itself “empowered to check, indirectly, the lawfulness of
the resolution of the [UNSC] in question with regard to jus cogens, understood as a
body of higher rules of public international law binding on all subjects of inter-
national law, including the bodies of the UN, and from which no derogation is
possible.”79 Nonetheless, its review on the basis of jus cogens of alleged violations
of the petitioner’s fundamental rights, turned out to be extremely limited.80 The
CFI ruled out it had the power to “verify that there has been no error of assessment
of the facts and evidence relied on by the SC in support of the measure it had
taken.”81 Instead, it affirmed, leaving a wide margin of appreciation to the UNSC,
that “the question whether an individual or organisation poses a threat to inter-
national peace and security, like the question of what measures must be adopted
vis-à-vis the person concerned in order to frustrate the threats, entails a political
assessment and value judgment which in principle falls within the exclusive
competence of the authority to which the international community has entrusted
primary responsibility for the maintenance of peace and security.”82
In sum, the CFI held that none of the applicant’s arguments alleging breach of
his fundamental due process right were well founded and it upheld the EC
regulation—an instrument necessary, “as the world now stands,”83 to fight inter-
national terrorism. By limiting the scope of its judicial review,84 the first decision of
the CFI dealing with the legality of EU counter-terrorism measures in Kadi raised
several perplexities, since it ended sacrificing entirely the needs of the protection of
fundamental rights,85 giving “carte blanche”86 to the political branches of govern-
ment to disregard the rule of law in implementing the resolutions of the UNSC.87
fondamentali in una bizzarra sentenza del Tribunale di Primo Grado” [2006] Diritto dell’Unione
Europea 333 (criticizing the reasoning of the CFI).
80 See Lavranos (n 66) 475. 81 Kadi (n 65) para 284.
82 Kadi (n 65) para 284. 83 Kadi (n 65) para 133.
84 See Stanislas Adam, “Les résolutions du Conseil de sécurité de l’Onu à l’épreuve des juridictions
communautaires: Variations autour de la jusiticiabilité” in Francis Snyders and Imelda Maher (eds),
The Evolution of the European Courts (Bruylant 2009) 89 (arguing that the CFI has essentially adopted
here the doctrine of acte de gouvernement or political questions).
85 Marta Cartabia, “L’ora dei diritti fondamentali nell’Unione Europea” in Marta Cartabia (ed),
Kadi Judgments of the CFI” (2008) 14 European Law Journal 74, 82.
Challenge 65
damages raised by a Basque organization which had been listed as a terrorist entity in an EU counter-
terrorism measure adopted under the second pillar of the EU).
91 See Rory Stephen Brown, “Kadi v. Council: Executive Power and Judicial Supervision at the
European Level” (2006) 4 European Human Rights Law Review 456, 468 (arguing that the CFI “has a
responsibility not to hinder the effective implementation of peaceable measures adopted to combat
terrorism. [Freezing of funds] broadly speaking, therefore, should receive judicial backing”).
92 See Eeckhout (n 66) 205–6; Almqvist (n 51) 303.
93 See text accompanying n 45.
94 Daniel Halberstam, “Comparative Federalism and the Issue of Commandeering” in Kalypso
Nicolaïdis and Robert Howse (eds), The Federal Vision. Legitimacy and Levels of Governance in the
United States and the European Union (OUP 2001) 213.
95 Case 314/85 Foto-Frost [1987] ECR 4199.
96 See Giuseppe Tesauro, Diritto comunitario (Cedam 2005) 299; Jean-Claude Gautron, Droit
européen (Dalloz 2006) 199; and Monica Claes, The National Court’s Mandate in the European
Constitution (Hart Publishing 2006).
66 The Right to Due Process for Suspected Terrorists
Since the EU courts had upheld the legality of EU counter-terrorism measures and
embraced a weak standard of due process, it would have been impossible for
national courts to enforce a more effective protection of the right to due process
for suspected terrorists at the state level.97
This state of affairs can be described as a challenge of ineffectiveness, as defined
in Chapter 1. By setting an extremely low due process standard for the review of EU
counter-terrorism measures, the CFI put state regimes for the protection of due
process rights in the field of counter-terrorism under pressure. In particular, while
the standard developed by the EU courts left largely unaffected those member states
where national courts had autonomously embraced a “security-sensitive” position
in the area of national security, the decision of the EU courts in Kadi and its
progeny raised a challenge for those member states which had been willing to
provide more extensive protection of due process rights to suspected terrorists. The
emergence of a ceiling for the protection of due process rights at the EU level
prevented states with vanguard standards of protection for terrorist suspects from
enforcing them. Admittedly, a number of national courts reserved for themselves
the power to disregard EU law in order to defend greater domestic protection of
fundamental rights.98 Advocate General (AG) Mengozzi even recognized the risk of
such a position in his opinion in Segi, highlighting that, were the ECJ to maintain a
“gap in the protection of fundamental rights in the field of police and judicial
cooperation in criminal matters, the national courts of various Member States
would feel entitled, if actions were brought before them, to verify whether the
acts adopted by the Council on the basis of [former] Article 34 TEU were
compatible with the fundamental rights guaranteed by their respective national
legal systems, but not necessarily in an identical manner.”99 However, since national
courts have never resorted to this jurisdiction, it is unlikely that in the aftermath
of 9/11 they would do so in an area as controversial as national security.100
In conclusion, the increasing involvement of the EU in the implementation of
UN counter-terrorism sanctions and the early decision by EU courts to accord wide
deference to the political branches of government and secure only a low level of
protection of due process rights for suspected terrorists created a set of complex
constitutional dynamics. While Kadi deprived the applicant of a remedy at the EU
level, the rulings of the CFI also made it impossible for him (and those other
individuals and entities targeted by EU sanctions implementing UNSC resolu-
tions) to seek more due process protection against EU counter-terrorism measures
before the domestic courts. As mentioned in section 2, after 9/11 most national
courts were anything but willing to secure robust protection of due process rights.
But other state courts had proved much more resilient in defending rights even
jurisdiction” as long as the EU system ensures a protection of fundamental rights generally equivalent
to the national. See e.g., BVerfGE 73, 339 (1986) (Solange II ).
Comparative assessment 67
during times of emergency. By setting a ceiling for the protection of due process
rights in national security cases, the ECJ challenged the effectiveness of more
advanced due process standards existing in several EU member states, revealing
the difficulties that arise when the balance between liberty and security intersects
with the overlap between state and supranational laws in a multi-layered human
rights architecture. From this point of view, though, the dynamics at play in Europe
are not unique.
101 The adoption of a comparative perspective to the study of due process and counter-terrorism is
common in the constitutional law literature. See e.g., Victor Ramraj et al (eds), Global Counter-
Terrorism Law and Policy (CUP 2009).
102 The literature on the so-called “war on terror” is huge. See among many, Bruce Ackerman,
Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism (Harvard UP 2006) 169 ff; Louis
Fisher, The Constitution and 9/11 (Kansas UP 2008). For an assessment of the evolving role of the
executive and legislative branches of the US government in the fight against terrorism, see Federico
Fabbrini, “Lotta al terrorismo: Da Bush a Obama passando per la Corte Suprema” [2011] Quaderni
Costituzionali 89.
103 For an overview of the most relevant anti-terrorism measures of the Bush Administration, see
the UN, see Kim Lane Scheppele, “Global Security Law and the Challenge to Constitutionalism after
9/11” [2011] Public Law 352, 354.
105 See US Const. Am. V (no person shall “be deprived of life, liberty, or property, without due
process of law”). On the due process principle, see John Orth, Due Process of Law (Kansas UP).
106 These differences in the dockets of the two courts reflect the underling counter-terrorism
policies chosen by the US and the EU. While the US adopted a reactive policy aimed at detecting
and imprisoning individuals suspected of engaging in terrorist activities, the EU (which has so far
limited power in the field of criminal law) has tackled the problem of the financing of terrorism by
attempting to deprive terrorist organizations at the roots of the economic resources necessary to engage
68 The Right to Due Process for Suspected Terrorists
a prominent role in the US.107 Most of the activity of US courts has focused on the
legality of detention without due process of individuals suspected of involvement in
terrorist activities. Nevertheless, the decisions of the US courts on the legality of
detention without trial and those of the EU courts on the legality of the freezing of
financial assets reveal common ground which supports their comparability. They
both deal with the limitation of individual fundamental rights without due process of
law: a limitation of liberty without due process in the first case; a limitation
(mainly) of property without due process in the latter.108
Moreover, the US is a federal system of government in which not only state and
federal human rights standards overlap, but also state and federal law enforcement
powers coexist.109 In fact, in the US the primary competence in the area of policing
is held by the states,110 although the federal government has since the 1940s
acquired a leading role in national security and has always been vested with
exclusive powers in foreign affairs.111 Because of the overlap of state and federal
law, a number of tensions emerged in the aftermath of 9/11.112 The far-reaching
counter-terrorism policies adopted at the federal level undermined the protection of
the fundamental rights protected in the US Constitution.113 Yet, they also put
under pressure the law of the US states, which often recognized advanced standards
of protection for due process rights.114 Nevertheless, an important structural
difference between the two systems of governance needs to be taken into account.
in terrorist acts. See Marise Cremona, “The Union as a Global Actor: Roles, Models and Identity”
(2004) 41 Common Market Law Review 553.
107 A number of judgments of lower federal courts, but no rulings of the US Supreme Court, are
available on the legality of financial sanctions. Recent decisions include Kadi v. Geithner, 2012
U.S. Dist. LEXIS 36053 (D.D.C., 19 March 2012) (upholding the listing of Kadi as a specially
designated foreign terrorist by the Treasury Office of Foreign Assets Control (OFAC)) and KindHearts
for Charitable Humanitarian Developments v. Geithner, 647 F. Supp. 2d 857, 906 (N.D. Ohio 2009)
(holding that the OFAC had violated the petitioner’s “fundamental right to be told on what basis and
for what reasons the government deprived it of all access to its assets”). For a recent assessment of the
case law, see Jeffrey Davenport, “Freezing Terrorist Finance in its Tracks: the Fourth Amendment,
Due Process and the Office of Foreign Assets Control after KindHearts v. Geithner” (2011) 61 Syracuse
Law Review 173.
108 See Janny Martinez, “Process and Substance in the ‘War on Terror’ ” (2008) 108 Columbia Law
Review 1013.
109 See Stephen Schulhofer et al, Criminal Law and its Processes: Cases and Materials (8th ed Aspen
2007).
110 States have, in fact, been prominent players in enacting counter-terrorism measures since 9/11.
See Donna Lyons, “States Enact New Terrorism Crimes and Penalties,” National Congress of State
Legislatures–State Legislative Report, Vol. 27 No. 19, 2002, available at <http://www.ncsl.org/Portals/
1/documents/cj/terrorismcrimes.pdf>.
111 Compare Gordon Silverstein, Imbalance of Powers: Constitutional Interpretation and the Making
of American Foreign Policy (OUP 1997) with John Yoo, The Powers of War and Peace: The Constitution
and Foreign Affairs Since 9/11 (Chicago UP 2005).
112 See on the implications of 9/11 on the US system of criminal law enforcement, William
J. Stuntz, “Terrorism, Federalism and Police Misconducts” (2001–02) 25 Harvard Journal of Law
and Public Policy 665.
113 See Cole and Dempsey (n 2). See also David Cole and Jules Lobel, Less Safe, Less Free: Why
advanced than the federal constitution, see Stewart Pollock, “State Constitutions as Separate Sources of
Fundamental Rights” (1983) 35 Rutgers Law Review 707.
Comparative assessment 69
As mentioned in the previous section, the EU carries out most of its policies
through the member states and EU counter-terrorism sanctions are practically
put into execution by state officials.115 In the US, on the contrary, the federal
government does not resort to the state authorities to execute its policies. In fact,
under the Printz doctrine116 of the US Supreme Court, the federal government is
constitutionally prohibited from “commandeering” state officials, that is compel-
ling them to carry out federal mandates.117 As Ann Althouse has explained, the
anti-commandeering doctrine has played a vigorous role in the US after 9/11.118
Aware that the counter-terrorism policies adopted by the federal government could
undermine the effectiveness of the protection of core civil liberties at the sub-
national level, a number “of municipalities, as well as a few states, have passed
resolutions directing their officials to refuse to participate in the anti-terrorism
efforts of the federal government.”119 Although standards of procedural justice vary
greatly between the US states, under the shield of the anti-commandeering doc-
trine, the states and local governments endowed with vanguard forms of due
process protection “decline[d] to provide any aid to federal authorities in investi-
gations and enforcement actions that might jeopardize civil liberties.”120
Despite the operation of the anti-commandeering doctrine, however, the action
of the federal government in the field of national security still challenged the
operation of states’ vanguard due process standards.121 In fact, although the federal
government cannot commandeer state officials, it can directly carry out its policies
through federal officials; and action by federal officials is bound to respect federal
human rights standards, and not state standards. Nevertheless, because in the
aftermath of 9/11 the standard of due process enforced at federal level was
extremely weak, tensions were revealed with the mechanisms of protection existing
in several US states.122 As a result, a challenge of ineffectiveness comparable to that
experienced in the EU also materialized in the US. In some cases, courts ruled that
Principle” (1998) 111 Harvard Law Review 2180. On the historical roots of the “anti-commandeer-
ing” doctrine in US constitutional law, see Paul Finkelman, “The Roots of Printz” (2004) 69 Brooklyn
Law Review 1399.
118 Ann Althouse, “The Vigor of the Anti-Commandeering Doctrine in Times of Terror” (2004)
Brooklyn Law Review 1369, 1370 (emphasis removed) (who further discusses the possibility of
bringing a cause of action in state courts against federal officials).
121 Ernest Young, “Welcome to the Dark Side: Liberals Rediscover Federalism in the Wake of the
Terrorism Law: State Sovereignty, Criminal Law Enforcement, and National Security” (2002) 25
Studies in Conflict and Terrorism 1 (underlying tensions between the counter-terrorism policies of the
federal government and those of the states).
70 The Right to Due Process for Suspected Terrorists
federal law tout-court preempted state law,123 with the consequence that state
standards for the protection of constitutional rights were entirely displaced.124 In
this context, it was left to the federal judiciary to respond to the due process
challenge posed by the actions of the federal government and to raise the standard
for the protection of fundamental rights in the field of counter-terrorism. Yet, the
reaction of the US Supreme Court was incremental and the goal to improve the
effectiveness of due process rights for suspected terrorists was achieved only in
steps.125 In an initial phase, the Supreme Court exercised a deferential approach,
with minimal review of the acts of the political branches of government. In a second
intermediate phase, the Supreme Court began to limit the effects of its precedents
and acknowledged its power to scrutinize more extensively the policies of other
branches of government. In the final phase, the Supreme Court reaffirmed its
institutional position in the balance of governance and greatly enhanced the
protection of due process standards for suspected terrorists.
In its first case dealing with the legality of counter-terrorism measures, the
Supreme Court maintained a deferential stance toward the determination of the
political branches of government, keeping to a minimum or excluding tout court
judicial review of the policies adopted to fight terrorism. In Hamdi,126 the Supreme
Court was for the first time called on to review the detention policy adopted by the
US Administration after 9/11. Hamdi, a US citizen who had been captured by US
military forces during the hostilities in Afghanistan in 2001, was classified as an
“enemy combatant”127 by order of the US President and had since been detained
123 On the pre-emption doctrine, see Gade v. National Solid Waste Management Association, 505
U.S. 88, 98 (1992) (Supreme Court holding that federal law may preempt state action in a given field
either expressly or impliedly when “the scheme of federal regulation is so pervasive as to make
reasonable the inference that Congress left no room for the States” (so-called field pre-emption) or
“where compliance with both federal and state regulations is a physical impossibility, or where state law
stands as an obstacle to the accomplishment and execution of the full purposes and objectives of
Congress” (so-called conflict preemption)). See also Stephen Gardbaum, “The Nature of Preemption”
(1994) 79 Cornell Law Review 776.
124 See e.g., ACLU of New Jersey v. County of Hudson, 799 A.2d 629 (2002) (New Jersey Court of
Appeal holding that federal national security regulations pre-empted New Jersey laws requiring prisons
to make information on detainees public). For a critical view of the application of the principle of
federal pre-emption in the field of national security law, see Erwin Chemerinsky, “Empowering States
When It Matters: A Different Approach to Preemption” (2004) 69 Brooklyn Law Review 1313.
125 See Federico Fabbrini, “The Role of the Judiciary in Times of Emergency: Judicial Review of
Counter-Terrorism Measures in the United States Supreme Court and the European Court of Justice”
(2009) 28 Yearbook of European Law 664.
126 Yaser E. Hamdi et al v. Donald H. Rumsfeld et al, 542 U.S. 507 (2004).
127 The term “enemy combatant” is not known in the language of international humanitarian law,
but has been employed in US law by the US Supreme Court since Ex parte Quirin, 317 U.S. 1 (1942)
as a synonym for “unlawful combatant.” In the wake of 9/11, US authorities redefined the category to
encompass “any individual who was part of or supporting Taliban or Al Qaida forces, or associated
forces that are engaged in hostilities against the US or its coalition partners. This includes any person
who has committed a belligerent act or has directly supported hostilities in aid of enemy armed
forces”—Order of the Deputy Secretary of Defense Establishing Combatant Status Review Tribunal,
7 July 2004, } a—and have deprived those falling under that heading of the privilege enjoyed by
“lawful combatants” under the law of war. On this, see David Cole, “Enemy Aliens” (2002) 54
Stanford Law Review 953; George Harris, “Terrorism, War and Justice: The Concept of the Unlawful
Enemy Combatant” (2003) 26 Loyola of Los Angeles International and Comparative Law Review 31.
Comparative assessment 71
128 The petitioner challenged his detention on the basis of the habeas corpus statute, 28 U.S.C.
} 2241(c)(3), according to which the Supreme Court or any other justice may grant certiorari to a
prisoner held “in custody in violation of the Constitution or laws or treaties of the US.”
129 Ackerman (n 102) 27 (noting that the controlling opinion of the judgment was written by
O’Connor J. only for herself and three colleagues, because there was no majority of five judges who
could agree on a specific ruling).
130 Hamdi (n 126) (Opinion of O’Connor J.) at 516. See US Const. Art II, } 2, cl. 1 (stating that
of Military Forces (AUMF), Pub. L. 107–40 (2001)—the congressional resolution granting the
President the power “to use all necessary and appropriate force against those nations, organizations,
or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred
on September 11, 2001”—as statutory authorization for the detention of US citizens without trial.
According to Ackerman (n 102) 30, this reasoning suggests “disturbing judicial uncertainty.” In their
joint dissent, in fact, Scalia J. and Stevens J. insisted that according to US constitutional tradition, in
the absence of formal suspension of the writ of habeas corpus, “the Executive assertion of military
exigency has not been thought sufficient to permit detention without trial” (Scalia J. dissenting, at
554). For a discussion of the plurality opinion see, Curtis Bradley and Jack Goldsmith, “Congressional
Authorization and the War on Terrorism” (2005) 118 Harvard Law Review 2047 and Richard Fallon
and Daniel Meltzer, “Habeas Corpus Jurisdiction, Substantive Rights and the War on Terror” (2007)
120 Harvard Law Review 2032, 2071.
132 Hamdi (n 126) (Opinion of O’Connor J.) at 528.
133 Hamdi (n 126) (Opinion of O’Connor J.) at 529.
72 The Right to Due Process for Suspected Terrorists
US,”134 rejecting both the “unilateralism”135 of the Administration as well as the
“civil libertarian maximalism”136 of the petitioner. In the practical weighing of
competing interests, however, the Supreme Court adopted a “minimalist
approach.”137 Thus, even if the plurality quite emphatically affirmed that “it is
during our most challenging and uncertain moments that our Nation’s commit-
ment to due process is most severely tested; and it is in those times that we must
preserve our commitment at home to the principles for which we fight abroad,”138
the result of the “calculus”139 was an indulgent yielding to the executive.140 The
Court simply concluded that a citizen “seeking to challenge his classification as an
enemy combatant must receive notice of the factual basis for his classification, and a
fair opportunity to rebut the Government’s factual assertions before a neutral
decision-maker.”141 In addition, the Court acknowledged that “enemy combatants’
proceedings may be tailored to alleviate their uncommon potential to burden the
Executive”142 in times of emergency and, in the end, even acknowledged that “the
standards . . . articulated could be met by an appropriately authorized and properly
constituted military tribunal.”143 Hence, “although the popular press has hailed
Hamdi for reining in presidential power, . . . a much dimmer view”144 seems
necessary. “When one considers where the balance was struck, the departure
from [executive] unilateralism was limited. From the standpoint of judicial balan-
cing itself, the plurality accorded too little weight to the serious deprivation of
liberty associated with the designation as an enemy combatant and too much
weight on security concerns relating to the war on terrorism.”145
In a second decision of 2006, however, the US Supreme Court began to
abandon its previous self-restraint and, through a strict interpretation of the
relevant legislative provisions, took the first step in the direction of restoring the
rule of law and granting adequate protection of fundamental rights. In Hamdan,146
the Supreme Court dealt with the case of a Yemeni national held as an enemy
combatant in the US prison of Guantanamo. Since his capture in Afghanistan in
2001, Hamdan had been detained without trial for four years. However, in 2004
the US President charged him with the crime of conspiracy to commit terrorism
and found him eligible for trial before a military commission, established ad hoc by
executive order.147 Through habeas corpus proceedings, Hamdan asked the Court:
(1) whether the US President had the authority to establish military commissions to
try enemy aliens for war crimes; and (2) whether the procedure governing trials
before the military commissions complied with the basic tenets of military and
international law. While the case was pending before the Supreme Court, a
legislative provision was enacted depriving US federal courts of jurisdiction to
hear applications for habeas corpus filed by aliens detained in Guantanamo.148 In
the view of the political branches of government, a new administrative procedure
had to be established to review the legality of the detention, without all the
burdensome safeguards of a trial before the federal courts.149 The Administration
therefore urged the Court to decide the case on procedural grounds, dismissing the
case for lack of jurisdictional competence. However, a five-justice majority led by
Justice Stevens construed the statute narrowly, and stated that “ordinary principles
of statutory construction suffice to rebut the Government’s theory”150 because
both the language and the history of the statute exclude its retroactive application to
pending cases.
Moreover, rejecting its previous deferential approach toward the arguments of
the executive,151 the Court underlined that “the Government has identified no
other ‘important countervailing interest’ that would permit federal courts to depart
from their general ‘duty to exercise the jurisdiction that is conferred on them by
Congress’”152 and addressed the claims of the petitioner on its merits. With regard
to the first claim, concerning the authority of the President to try enemy combat-
ants for crimes against the law of war by military tribunals instituted by executive
order, the Court ruled that no act of Congress “expand[ed] the President’s
147 The decision to establish ad hoc military commissions to try enemy combatants for alleged
violations of the law of war was taken by Order of the President of the United States, 13 November
2001, “Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism,” 66
Fed. Reg. 57,833 } 4. See Daryl Mundis, “The Use of Military Commissions to Prosecute Individuals
Accused of Terrorist Acts” (2002) 96 American Journal of International Law 320; Neal Katyal and
Laurence Tribe, “Waging War, Deciding Guilt: Trying the Military Tribunals” (2002) 111 Yale Law
Journal 1259.
148 Indeed, } 1005(e)(1) of the Detainee Treatment Act, Pub. L. 109–48 (2005), amended the
habeas corpus statute (see n 128) providing that “no court, justice, or judge shall have jurisdiction to
hear or consider—an application for writ of habeas corpus filed by or on behalf of an alien detained by
the Department of Defense at Guantanamo.”
149 Following the ratio decidendi of the Supreme Court in Hamdi, the executive created with the
previously mentioned Order of the Deputy Secretary of Defense Establishing Combatant Status
Review Tribunal, 7 July 2004, the Combatant Status Review Tribunal (CSRT), an administrative
body composed of three officers of the US Armed Forces charged with reviewing, through an
inquisitorial procedure, whether the condition for classifying as “enemy combatants” the detainees
held in Guantanamo was still valid. See Anthea Roberts, “Righting Wrongs or Wronging Rights? The
United States and Human Rights Post September 11” (2004) 15 European Journal of International
Law 721, 730.
150 Hamdan (n 146) at 575.
151 Chiara Bologna, “Hamdan v. Rumsfeld: Quando la tutela dei diritti è effetto della separazione dei
poteri” [2006] Quaderni Costituzionali 813, 817. For a critical appraisal of “Hamdan’s refusal to give
deference to the executive branch” see, however, Julian Ku and John Yoo, “Hamdan v. Rumsfeld: the
Functional Case for Foreign Affairs Deference to the Executive Branch” (2006) 23 Constitutional
Commentary 179, 180.
152 Hamdan (n 146) at 589.
74 The Right to Due Process for Suspected Terrorists
authority to convene military commissions”153 and that the statutory requirement
of express congressional authorization for the establishment of ad hoc tribunals had
been violated.154 With regard to the second claim, concerning the legality of the
procedures governing trial by military commissions, the Supreme Court high-
lighted that, according to the rules set down by the executive, the accused was
“precluded from ever learning what evidence was presented”155 against him and
that “striking[ly] any evidence . . . [including] testimonial hearsay and evidence
obtained through coercion”156 was admissible in the proceedings. The majority
ruled that such procedures violated the standard of US military justice as well as the
provisions of the Geneva Convention granting minimal due process rights157 to
aliens detained in the course of a “conflict not of an international character”:158
indeed, those “requirement are general ones, crafted to accommodate a wide variety
of [situations]. But requirements they are nonetheless.”159 In Hamdan, therefore,
the Supreme Court took the first steps to ensuring adequate protection of
fundamental right in the fight against terrorism by making it clear that “the
Executive is bound to comply with the Rule of Law that prevails in this jurisdic-
tion.”160 The Court departed from its previous deferential position,161 favoring an
intermediate, “process-based institutional approach”162 that relied on a form of
checks and balances between the legislative and executive branches. At the same
time, however, the Court did not engage directly with the relevant constitutional
arguments at stake, and—as has been argued—the true novelty of the decision, “is
not in fact a new interference in the activities of the war-making branches of
government, but rather the acknowledgment of a relevant role for the Congress
in times of emergency.”163
153 Hamdan (n 146) at 593–4. Marking the diversity of its new approach from that followed in
Hamdi—where the AUMF was considered sufficient authorization for the President to detain citizens
as enemy combatants (see n 131)—the Court this time affirmed that the AUMF could not be invoked
as the legal basis for the President’s authority to convene military commissions.
154 According to 10 U.S.C. } 821, military tribunals for the trial of offences against the law of war
may be established only “by statute or by the law of war.” A plurality of four judges also affirmed that,
besides the absence of specific congressional authorization, “none of the acts that Hamdan is alleged to
have committed violates the law of war” (Opinion of Stevens J. at 600).
155 Hamdan (n 146) at 614. 156 Hamdan (n 146) at 614 (emphasis in the original).
157 Fiona de Londras, “The Right to Challenge the Lawfulness of Detention: An International
Perspective on US Detention of Suspected Terrorists” (2007) 12 Journal of Conflict and Security Law
223, 234.
158 Hamdan (n 146) at 629. See Common Art 3(1)(d) of the Geneva Convention of 1949 (stating
that “in the case of armed conflict not of an international character . . . the following acts are and shall
remain prohibited: . . . the passing of sentences and the carrying out of executions without previous
judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are
recognized as indispensable by civilized peoples”).
159 Hamdan (n 146) at 635. 160 Hamdan (n 146) at 635.
161 Cass Sunstein, “Clear Statement Principles and National Security: Hamdan and Beyond”
question?,” Forum Costituzionale Paper 2007, 13 (my translation: “non è infatti una nuova ingerenza
nella attività dei war making branches of government, ma il riconoscimento di un ruolo rilevante del
Congresso durante gli stati d’emergenza”).
Comparative assessment 75
164 Lakhdar Boumediene et al v. George W. Bush et al, 553 U.S. 723 (2008).
165 Boumediene (n 164) at 732. See Art I, } 9, cl. 2 US Const. (stating that “the privilege of the writ
of habeas corpus shall not be suspended unless when in cases of rebellion or invasion the public safety
may require it”).
166 Indeed, } 7(a) of the Military Commission Act, Pub. L. 109–366 (2006), stated that “no
court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas
corpus filed by or on behalf of an alien detained by the United States” and } 7(b) made clear that
“the amendment made by section (a) shall take effect on the date of the enactment of this Act, and
shall apply to all cases, without exception, pending on or after the date of the enactment of
this Act.”
167 Boumediene (n 164) at 739. 168 Boumediene (n 164) at 734.
169 Note that whereas Hamdi concerned the applicability of constitutional rights to a US citizen
held as an enemy combatant, Hamdan had left unanswered the question whether foreign nationals
held as enemy combatants were also entitled to constitutional privileges. On the double-standard
approach (that sets different legal treatment for citizens and non-citizens) employed by the US in the
wake of 9/11, see the detailed analysis of Cole (n 127). For different perspectives on the issue
(one favorable to extending constitutional due process rights to aliens and the other supporting a
differentiated response), see Jesse Choper and John Yoo, “Wartime Process: A Dialogue on
Congressional Power to Remove Issues from Federal Courts” (2007) 95 California Law
Review 1243.
170 Boumediene (n 164) at 732. 171 Boumediene (n 164) at 745.
76 The Right to Due Process for Suspected Terrorists
On the extraterritorial application of the constitutional habeas provision, Justice
Kennedy rejected the formalistic arguments of the government and adopted a
“functional approach,”172 based on “objective factors and practical concerns.”173
Since “the US have maintained complete and uninterrupted control of [Guan-
tanamo] for over 100 years,”174 the Supreme Court argued that excluding the
application of the privilege of habeas corpus there would mean granting “the
political branches . . . the power to switch the Constitution on or off at will,”175
“permit[ting] a striking anomaly in [the US] tripartite system of government,
leading to a regime in which Congress and the President, not this Court, say
‘what the law is’.”176 Hence, answering the first question the Court ruled “that
Article I, } 9, cl. 2 of the [US] Constitution has full effect at Guantanamo.”177 “In
the light of this holding, the question [turned on] whether the statute stripping
jurisdiction to issue the writ [was constitutional] because Congress ha[d] provided
for adequate substitute procedure for habeas corpus.”178 According to the Court, the
“easily identified attributes of any constitutionally adequate”179 substitute for
habeas corpus proceedings included allowing the prisoner a meaningful opportun-
ity to rebut the reasons that legitimize his detention and the power of the court to
order the release of an individual unlawfully detained. Since these minimal requis-
ites were lacking in the alternative procedure set up by the legislature (granting the
power to try those held in Guantanamo to ad hoc combatant-status review
tribunals), the Court concluded that the contested statute “effect[ed] an unconsti-
tutional suspension of the writ.”180 Boumediene thus reasserted the prominent
constitutional role of the US judiciary in the balance of governance and in the
protection of fundamental rights in times of emergency.181 Contrary to the
172 Boumediene (n 164) at 764. See Gerald Neuman, “The Extraterritorial Constitution after
tionalism and Guantanamo Bay” [2008] Cato Supreme Court Review 47, 51 (stating that this ruling
would “pierce the veil of sovereignty, reject formalist fictions of territoriality where the state exercises
authority beyond its borders, and insist on the need for judicial review to safeguard the human rights of
citizens and noncitizens alike”). But see Eric Posner, “Boumediene and the Uncertain March of Judicial
Cosmopolitanism” [2008] Cato Supreme Court Review 23, 43 (stating on the contrary that the
judgment suggested “a sneaking cosmopolitanism in the Supreme Court jurisprudence”).
174 Boumediene (n 164) at 764. 175 Boumediene (n 164) at 765.
176 Boumediene (n 164) at 765 quoting the seminal decision of Marbury v. Madison, 5 U.S. 137
Lamenting the Absence of an International Human Rights Law Approach in Boumedine and Al Odah”
(2008) 41 Israel Law Review 562, 564 (regretting that the Court missed “the opportunity to consider
the relationship between constitutional and international rights protecting norms in times of conflict”).
178 Boumediene (n 164) at 771. 179 Boumediene (n 164) at 779.
180 Boumediene (n 164) at 792. The dissent of the Chief Justice highlighted well how the Court
abandoned its original jurisprudence: Roberts C.J., while recognizing that the Suspension Clause
applied in Guantanamo, defended the substitute procedure for habeas corpus set up by the political
branches of government as meeting “the minimal due process requirements outlined in Hamdi”
(Roberts C.J., dissenting at 804), and urged the Court to show precisely the same self-restraint initially
adopted in terrorist-related cases from which, conversely, the majority in this case eventually departed.
181 Martin Katz, “Guantanamo, Boumediene and the Jurisdiction-Stripping: The Imperial President
“Extraordinay Renditions and the State Secret Privilege: Italy and the United States Compared” [2012]
Italian Journal of Public Law 255.
185 See Giuliano Amato, “Terrorismo internazionale, rule of law e cooperazione transatlantica” in
Paolo Caretti and Maria Cristina Grisolia (eds), Lo Stato costituzionale (Il Mulino 2010) 487.
186 See also David Dyzenhaus, “States of Emergency” in Michel Rosenfeld and András Sajó (eds),
becoming more demanding in their scrutiny as time goes on.187 In particular, in the
OMPI decision of 2006,188 the CFI moved to limit the effects of its previous ruling
and, by distinguishing the case from Kadi, ensured greater protection of due process
rights. In the milestone 2008 decision in Kadi,189 on appeal from the CFI, the ECJ
took the most important step toward the resolution of the challenge of ineffective-
ness in the field of due process rights for suspected terrorists in Europe by
recognizing full substantive review of due process violations for those subject to
blacklisting. The decision assuaged the tensions with national systems of human
rights protection, as evidenced in the ECJ 2010 ruling in E. & F.,190 and opened
the way for important developments in the national security case law of the
supreme courts of the member states.
The issue before the CFI in OMPI was the same as that which had already been
at stake in Kadi. In an action for annulment, an Iranian organization based in the
UK challenged the legality of an EC regulation191 which listed it as being among
entities suspected of financing terrorism and freezing its assets without due process
of law. Although the defendant urged the CFI to comply with its previous case law
denying the power of the EU judiciary to review a contested EC measure imple-
menting a UNSC resolution in light of the fundamental principles of EU law, the
CFI found it appropriate to “distinguish the present case.”192 Contrary to Kadi, the
challenged EC regulation implemented a UNSC resolution193 that this time did
“not specify individually the persons, groups and entities who [we]re to be the
subjects of ”194 the financial freezing measures. The identification of the exact
“persons, groups and entities whose funds [we]re to be frozen pursuant to the
[UN] resolution”195 had first occurred within the framework of the second pillar of
the EU,196 and was later transposed into the EC regulation. Therefore, “the
adoption of those acts [by the EU Council] f [ell] . . . within the ambit of the exercise
of [a] broad discretion.”197 As a consequence, the CFI recognized that “the EC
institutions concerned, in this case the Council, are in principle bound to observe
[the fundamental rights protected by the EU legal order] when they act with a view to
giving effect to [a UNSC] resolution.”198 According to the CFI, there was no
jurisdictional immunity199 that could shield the challenged EC regulation and “the
and Abuses of Counter-Terrorism Policies in Europe: The Case of the ‘Terrorist Lists’ ” (2008) 46
Journal of Common Market Studies 173, 185 (arguing that to define this argument as “opaque, is,
perhaps, an understatement”).
198 OMPI (n 188) para 107. 199 Eeckhout (n 66) 184–5.
80 The Right to Due Process for Suspected Terrorists
present dispute c[ould] be resolved solely on the basis of a judicial review of the
lawfulness of the contested decision.”200
The CFI engaged in an effective review 201 of the measure adopted by the
political institutions of the EU with regard to the right of due process of the
petitioner,202 taking care to ensure “that a fair balance is struck between the need to
combat international terrorism and the protection of fundamental rights.”203 On
the merits, the CFI found that all the petitioner’s claims concerning violations of
the right to a fair hearing, the obligation to state reasons, and the right to effective
judicial protection were well founded.204 The CFI ruled that “the contested
decision d[id] not contain a sufficient statement of reasons and that it was adopted
in the course of a procedure during which the applicants rights to a fair hearing was
not observed [and that] furthermore the CFI was not [itself] . . . in a position to
review the lawfulness of the decision.”205 The CFI annulled the EC regulation
insofar as it concerned the plaintiff, reaching the result that was rejected in Kadi.206
Per contra, the CFI made clear that the review it was exercising was a form of
“manifest error scrutiny,”207 a review “restricted to checking that the rules governing
procedure and the statements of reasons have been complied with, that the facts are
materially accurate and that there has been no manifest error of assessment of the
facts or misuse of powers.”208 While reaffirming the “imperative”209 nature of its
review, the CFI carved out for the EU judiciary a “limited,”210 intermediate space,
acknowledging “that the Council enjoys broad discretion in its assessment of the
matters to be taken into consideration for the purpose of adopting economic and
financial sanctions.”211 The OMPI case represented a step forward from the first
decisions on the legality of EU counter-terrorism policies since it “br[ought] a
measure of rule of law into a field which seems to have been tarnished by the
arbitrary.”212 As has been argued, “the EU judiciary experimented here its capacity
of being rigorous in the protection of rights in one of the most thorny fields, given
the fact that the seriousness of the international situation tends to attenuate the
sensitiveness toward the rights of the suspected terrorist and produces a stronger
approach”).
207 Adam (n 84) 99. On the nature of manifest error scrutiny, see Sadurski (n 30) 3–4.
208 OMPI (n 188) para 159. 209 OMPI (n 188) para 155.
210 OMPI (n 188) para 159. See also Guild (n 197) 188 (underlining the step forward taken by the
CFI in OMPI with respect to Kadi but stressing that “the scope of the CFI review, however, is
limited”).
211 OMPI (n 188) para 159. See also Tridimas (n 204) 122. 212 Guild (n 197) 181.
Recent developments 81
propensity towards the demand for security rather than towards that for liberty and
justice.”213 At the same time, the CFI took the explicit position of adopting a
midway review scrutiny, falling short of affirming an extended constitutional power
to ensure the primacy of EU fundamental principles.214
However, the full-blown, uncompromising recognition of the supremacy of EU
fundamental rights, even over the need to fight terrorism, came from the milestone
Kadi decision of the ECJ’s Grand Chamber in 2008. In fact, the Kadi ruling of the
CFI was later appealed and the ECJ was called on to decide at last instance the
legality of an EC regulation implementing a UNSC resolution listing individuals
and entities suspected of being terrorists and freezing their assets without due
process of law.215 In contrast to the CFI,216 the ECJ began its reasoning by
emphasizing that “the EC is based on the rule of law, inasmuch as neither its
Member States nor its institutions can avoid conformity of their acts with the basic
constitutional charter, the EC Treaty.”217 According to the ECJ, it followed from
“those considerations that the obligations imposed by an international agreement
cannot have the effect of prejudicing the constitutional principles of the EC Treaty,
which include the principle that all EC acts must respect fundamental rights.”218
On this premise, the ECJ set aside the argument of the CFI concerning the
relationship between the UN and EU legal orders, and, while not denying the
binding nature of the UNSC resolutions and their “supremacy in . . . international
law” stemming from the UN Charter,219 reaffirmed the supremacy of primary
EU constitutional law within the EU legal system,220 “in particular the general
213 Cartabia (n 85) 51 (my translation: “I giudici comunitari hanno sperimentato la lora capacità
di essere rigorosi nella tutela dei diritti su uno dei terreni più spinosi, dato che la gravità della
situazione internazionale tende ad attutire la sensibilità verso i diritti dei sospetti terroristi e genera
una maggiore propensione verso le esigenze della sicurezza piuttosto che verso quelle della giustizia e
della libertà”).
214 See Tridimas and Gutierrez-Fons (n 51) 730 (stating that the decision of the CFI in OMPI
“confirms that any concept of emergency constitution is internalized, i.e. remains subject to the
prerequisites for human rights protection provided for by the Community legal order. On the other
hand it recognizes that exceptions may be required . . . ”).
215 See text accompanying nn 67–8.
216 Halberstam and Stein (n 35) 43; de Búrca (n 71) 43.
217 Kadi (n 189) para 281 quoting Case 294/83, Les Verts v. Parliament [1986] ECR 1339
(affirming for the first time that the EC Treaty is the Constitutional Charter of the EC).
218 Kadi (n 189) para 285. See also Giorgio Gaja, “Are the Effects of the UN Charter under EC Law
Governed by Article 307 of the EC Treaty?” (2009) 28 Yearbook of European Law 610.
219 Kadi (n 189) para 288.
220 The ECJ therefore adopted an internal, constitutional approach to the relationship between the
UN and EU legal orders. This position is defended by EU lawyers such Maria Tzanou, “Case Note
Kadi v. Council ” (2008) 10 German Law Journal 123, 142, (stating “there are two reasons that
advocate in favour of the ECJ’s self-oriented approach: first, . . . the serious deficit of the UN system as
regard the observance of fundamental rights . . . Secondly, the ECJ does not seek to establish itself as the
guardian of the global legal order, since it does not review the UNSC resolution but the EC
implementing measure”). For an international law critique, however, see de Búrca (n 71) 2 (arguing
that “the judgment is a significant departure from the conventional presentation and widespread
understanding of the EU as an actor which maintains a distinctive commitments to international law
and institutions”). See Andrea Gattini, “Case Note Kadi v. Council ” (2009) 46 Common Market Law
Review 213, 224 (suggesting that, from this point of view, the judgment of the ECJ “gives rise to mixed
feelings. On the one hand one cannot but welcome the unbending commitment of the ECJ to the
82 The Right to Due Process for Suspected Terrorists
principles of which fundamental rights form part.”221 As a consequence, the ECJ
ruled that an EC regulation implementing a UN resolution could not be immune
from judicial review, arguing instead that “the review of the Court of the validity of
any Community measure in the light of fundamental rights must be considered to
be the expression, in a community based on the rule of law, of a constitutional
guarantee stemming from the EC Treaty as an autonomous legal system which is
not to be prejudiced by an international agreement.”222
The ECJ clearly ruled that:
the EC judicature must, in accordance with the powers conferred on it by the EC Treaty,
ensure the review, in principle the full review, of the lawfulness of all EC acts in the light of
the fundamental rights forming an integral part of the general principles of EC law,
including review of EC measures which, like the contested regulation, are designed to
give effect to the resolutions adopted by the Security Council.223
Hence, it engaged directly in a strict and attentive scrutiny of the contested regula-
tion,224 following the influential advice of AG Maduro, according to whom “in
situations where the Community’s fundamental value are in the balance, the Court
may be required to reassess and possibly annul, measures adopted by the Community
institutions, even when those measures reflect the wishes of the Security Council.”225
On the merit of the fundamental rights claim raised by the appellant, the ECJ
displayed “distrust toward any invasion of due process”226 and held that “in the
light of the actual circumstances surrounding the inclusion of the appellants’ names
in the list of persons and entities covered by the restrictive measures . . . the right of
defence, in particular the right to be heard, and the right to effective judicial review
were patently not respected.”227 In addition, according to the ECJ, the freezing of
assets deriving from inclusion on the list “constituted an unjustified restriction of
[the] right to propriety.”228 As a result, the central role that judicial review plays in
respect of human rights, but on the other hand the relatively high price, in terms of coherence and
unity of the international legal system . . . is worrying”). But see Martin Scheinin, “Is the ECJ Ruling in
Kadi Incompatible with International Law?” (2009) 28 Yearbook of European Law 637 (defending the
compatibility of Kadi with public international law). For an assessment of the various approaches to the
relationship between international and EU law—“thin internationalism” and “constitutional resist-
ance” and the identification of a possible third way, “a Solange type dialogue”—see Eeckhout (n 66)
205 and Halberstam and Stein (n 35) 49 ff. See also Nikolaos Lavranos, “Toward a Solange-Method
between International Courts and Tribunals” in Yuval Shany et al (eds), The Shifting Allocation of
Authority in International Law: Considering Sovereignty, Supremacy and Subsidiarity (Hart Publishing
2008) 217.
221 Kadi (n 189) para 308.
222 Kadi (n 189) para 316. There is convergence among scholars that the ECJ approach is preferable
to that of the CFI as far as protection of fundamental rights is concerned. See Tridimas (n 204) 126
(arguing that “on the issue of fundamental rights protection, the ECJ’s commitment is to be
applauded”).
223 Kadi (n 189) para 326.
224 Laura Cappuccio, “Il controllo della Corte di Giustizia sugli atti comunitari tra tutela giurisdi-
zionale dei diritti e lotta al terrorismo internazionale” [2008] Quaderni Costituzionali 903, 904.
225 Kadi (n 189) Opinion of AG Maduro, para 43.
226 Tridimas and Gutierrez-Fons (n 51) 698.
227 Kadi (n 189) para 334. 228 Kadi (n 189) para 370.
Recent developments 83
the EU system of governance,229 the ECJ declared the appeal well founded and
annulled the contested regulation insofar as it concerned the applicants.230
In Kadi, the ECJ rejected the deferential stance of the CFI and followed the
suggestion of AG Maduro to take seriously its role as the “constitutional court
of the municipal order that is the EC”231 and its duty to preserve the rule of law.
The ECJ also reasserted the role of the judiciary in times of emergency by simply
excluding that a “regulation [could] escape all review by the EC judicature once it
ha[d] been claimed that the act . . . concern[ed] national security and terrorism.”232
As, indeed, AG Maduro had again correctly pointed out, “especially in matters of
public security, the political process is liable to become overly responsive to
immediate popular concern, leading the authorities to allay the anxiety of the
many at the expenses of the rights of the few. This is precisely when courts ought
to get involved.”233 As a result, the judgment of the ECJ provided a remedy for the
gap in protection of fundamental rights left open by the CFI, thereby strengthening
due process rights for suspected terrorists in the EU.234 Moreover, the enforcement
of an advanced standard of protection at the EU level also paved the way for a
reduction in the tension with states endowed with vanguard due process guaran-
tees,235 as evidenced in the E. & F. case.236 The case originated from a preliminary
reference by the Oberlandesgericht in Düsseldorf, in criminal proceedings against
two Turkish nationals, resident in Germany, who were members of an organization
listed in the EU counter-terrorism regime as suspected of financing terrorist
activities.237 The German court asked the ECJ to assess whether the listing of
that organization was compatible with fundamental due process rights and
whether, therefore, the EU regulation could be used as the basis for the prosecution
of the two individuals at state level.238 The ECJ found the relevant EU measure
in its own understanding is not an international supervisory body but a juridical body analogous to a
domestic court”). See also Pierre d’Argent, “L’arret Kadi: le droit communautaire comme droit interne”
[2008] Journal de droit européen 265.
232 Kadi (n 189) para 343. See also Tridimas and Gutierrez-Fons (n 51) 701 (stating that “a distinct
feature of the ECJ’s reasoning, which differentiates its approach from that of the CFI, is [precisely] that
it conceded little ground to the source of the security concerns”).
233 Kadi (n 189) Opinion of AG Maduro, para 45.
234 For analysis of the follow-up to the Kadi case, see text accompanying nn 298–327.
235 See Halberstam and Stein (n 35) 63 (arguing that by rejecting the CFI’s approach and putting
the protection of fundamental rights at the apex of the EU legal order, the ECJ helped to “ensure the
protection of individual rights as well as Member State adherence to [EC] law more generally”).
236 É & F́ (n 190).
237 Council Regulation 2580/2001/EC, OJ 2001 L 344/70.
238 For a brief overview of the position of German courts in the field of due process rights and
239 For comment on the case, see Cian Murphy, “Case Note: Criminal Proceedings Against E and F ”
bility of raising a preliminary reference to challenge the validity of an EU act is reserved to applicants
who have suffered from the EU act but have been unable to seek its direct annulment through an
action for annulment).
244 E and F (n 190) para 53. 245 E and F (n 190) para 56.
246 E and F (n 190) para 62.
Future prospects 85
brethren. As was the case in the US, over time also in the EU the judicial process
provided the means to address the shortcomings produced by earlier judge-made
recognition of a very limited EU standard of protection for due process rights in
counter-terrorism, and was therefore able to strike a new balance between liberty
and security in the post-9/11 era. In OMPI, the CFI distinguished its previous cases
and ruled that when the blacklisting of individuals and entities was undertaken by
EU institutions, rather than UN organs, EU human rights standards would apply,
including review—albeit a deferential one—by the EU courts. In the milestone
Kadi judgment, the ECJ overruled the CFI and proclaimed the principle that EU
constitutional law requires EU courts to review in full EU measures which under-
mine the protection of due process rights, regardless of whether these implement
UNSC resolutions to fight global terrorism. By replacing the deferential review of
the CFI with an exacting scrutiny, the ECJ set a vanguard standard for the
protection of due process rights for suspected terrorists at the EU level, which
arguably also laid down a model for the national level. As the decision of the UK
Supreme Court in Jabar Ahmed suggests,247 Kadi pushed member state courts to
improve their human rights standards following the lead of the ECJ.248 At the same
time, E and F confirmed that an advanced EU standard of due process would
reduce tensions with state regimes which had already secured extensive domestic
procedural protection for suspected terrorists, hence jointly securing the supremacy
of EU law with the protection of core due process rights.
As explained in the previous section, gradual developments in the case law of the
EU courts, culminating in the landmark ruling of the ECJ in Kadi, have contrib-
uted to enhancing the standard of due process protection in the EU. As such, the
challenge of ineffectiveness triggered by the first decisions of the EU courts seems to
have been largely overcome. Nevertheless, this section seeks to explore to what
extent other institutional transformations taking place in the EU legal order may
cement the protection of due process rights in the EU, thus providing safeguards
against any possible judicial weakening in the future in the face of ongoing efforts
by the EU institutions to fight international terrorism.249 In this regard, a devel-
opment of major significance is the entry into force of the Lisbon Treaty on
247 R. v. Jabar Ahmed [2010] UKSC 2 (UK Supreme Court, citing the example of the ECJ, striking
down Orders in Council which formed the entirety of the UK anti-terrorism financing regime for
violation of due process standards).
248 For a review of how British courts, under the influence of EU and ECHR law, have over time
increased their standards of review in counter-terrorism cases, see Aileen Kavanagh, “Constitutional-
ism, Counterterrorism and the Courts: Changes in the British Constitutional Landscape” (2011) 9
International Journal of Constitutional Law 17.
249 See Takis Tridimas, “Economic Sanctions, Procedural Rights and Judicial Scrutiny: Post-Kadi
Developments” (2010) 12 Cambridge Yearbook of European Legal Studies 455 and Juliane Kokott
and Christoph Sobotta, “The Kadi Case—Constitutional Core Values and International Law—
Finding the Balance?” (2012) 23 European Journal of International Law 1015.
86 The Right to Due Process for Suspected Terrorists
1 December 2009. By bringing about a significant overhaul of the EU constitutional
architecture, the Lisbon Treaty has increased the substantive and institutional tools
for the protection of fundamental rights, including due process rights for individuals
and entities subject to counter-terrorism sanctions. First, at a very general level, the
Lisbon Treaty reasserts the importance of the protection of fundamental rights in
the EU by granting constitutional status to the EU Charter of Fundamental
Rights.250 In addition, the Treaty abolishes the pillar structure of the EU thereby
extending the jurisdiction of the ECJ also to the area of JHA.251 The CFSP, in fact,
maintains several ad hoc rules,252 but under Article 275 TFEU, “the ECJ shall have
jurisdiction to . . . rule on proceedings, brought in accordance with the conditions
laid down in the fourth paragraph of Article 263 TFEU [ex Art 230 TEC],
reviewing the legality of decisions providing for restrictive measures against natural
or legal persons adopted by the Council on the basis of [the CFSP].” Combined with
the Kadi doctrine, this new provision effectively allows the ECJ to review even a
common position listing persons suspected of financing terrorism, as well as, of
course, its implementing regulation.253
Crucially, then, the Lisbon Treaty now mandates the formal accession of the EU
to the ECHR.254 Although the issue of the accession of the EU (and, before it, the
EC) to the ECHR had been on the political agenda for over 20 years, no step had
thus far been taken in that regard.255 Pursuant to the new Article 6(2) TEU—as
well as to the new Article 59(2) ECHR, as modified by the 14th Additional
Protocol to the ECHR, which entered into force in June 2010—the negotiating
process for the accession of the EU to the ECHR is now underway and may soon
conclude with a formal accession document.256 The precise effects of the accession
of the EU to the ECHR are difficult to predict, but it seems likely that the core
achievement of accession will be to subject the action of the EU institutions to
judicial review before the ECtHR.257 Since the EU is not a party to the ECHR, the
250 On the impact of the Lisbon Treaty on fundamental rights, see Marta Cartabia, “I diritti fonda-
mentali e la cittadinanza dell’Unione” in Franco Bassanini and Giulia Tiberi (eds), Le nuove istituzioni
europee: Commento al Trattato di Lisbona (Il Mulino 2008) 81 and Olivier de Schutter, “The New
Architecture of Fundamental Rights Policy in the EU” [2011] European Yearbook of Human Rights 107.
251 See Eulalia Sanfrutos Cano, “The End of the Pillars? A Single EU Legal Order After Lisbon” in
Cian Murphy et al (eds), Law and Outsiders (Hart Publishing 2011) 67.
252 See n 46.
253 See Michael Dougan, “The Treaty of Lisbon 2007: Winning Minds not Hearts” (2008) 45
enne” in Giuliano Amato et al (eds), Genesis and Destiny of the European Constitution (Bruylant 2007) 995.
255 For an overview of the 50-year relationship between the EU (and previously the EC) and the
ECHR, see Jean-Paul Jacqué, “The Accession of the European Union to the European Convention on
Human Rights and Fundamental Freedoms” (2011) 48 Common Market Law Review 995.
256 The negotiation process on the accession of the EU to the ECHR has been finalized in a Draft
Accession Agreement. Fifth Negotiation Meeting Between the CDDH Ad Hoc Negotiation Group
and the European Commission, Final Report to the CDDH, 5 April 2013, 47 + 1 (2013)008. See also
Council of the European Union, 6–7 June 2013, Doc. 10461/13, p. 15 (indicating that once the ECJ
has had the opportunity to give an opinion on the agreement, the Commission will propose a Council
decision authorizing signature).
257 See Tobias Lock, “The ECJ and the ECtHR: The Future Relationship Between the Two
European Courts” (2009) 8 The Law and Practice of International Courts and Tribunals 375.
Future prospects 87
ECtHR has so far declared inadmissible all challenges against the EU (and,
previously, against the EC).258 The ECtHR is charged with reviewing the com-
patibility with the ECHR of measures adopted by the contracting parties after the
exhaustion of all available domestic remedies. In Matthews v. United Kingdom,259
the ECtHR also acknowledged its power to review acts of the EU member states
amending EU primary law.260 In that case the ECtHR restated that the “EC as
such cannot be challenged before the Court because the EC is not a Contracting
Party”261 but retained jurisdiction.262 The decision to review the application,
however, was largely due to the fact that the contested UK act could “not be
challenged before the European Court of Justice for the very reason that it [was] not
a ‘normal’ act of the Community, but [it was] a treaty within the Community legal
order”263 and that therefore the UK held responsibility ratione materiae for the
consequences of that Treaty.264
On the other hand, the ECtHR has repeatedly held that it will not review state
acts which implement EU secondary law, since in these cases a general presumption
of legality applies.265 The contours of this jurisprudence were spelled out by the
ECtHR in a case which has many analogies with the Kadi saga: the Bosphorus
case.266 Bosphorus, a Turkish air carrier, had leased an aircraft from the Yugo-
slavian national airline, just before the beginning of the Yugoslav civil war. While in
Ireland, the aircraft was impounded by the Irish authorities on the basis of an EC
regulation267 implementing a UNSC resolution268 imposing sanctions on Yugo-
slavia. After the exhaustion of national remedies and a preliminary ruling of the
ECJ on the interpretation of the relevant EC regulation,269 Bosphorus began
proceedings before the ECtHR claiming a violation of its right to property. The
ECtHR found itself competent to review the decision of the Irish authorities even if
they were simply giving effect to an EC regulation. The ECtHR acknowledged that
Ireland was complying “with its obligation flowing from EC law.”270 On the other
258 See Confédération Française Démocratique du Travail v. EEC (CFDT), ECHR [1978] App. No.
8030/77. See also Evert Alkema, “The EC and the European Convention on Human Rights:
Immunity and Impunity for the Community?” (1979) 16 Common Market Law Review 508.
259 Matthews v. United Kingdom, ECHR [1999] App. No. 24833/94 (GC).
260 See Maria E. Gennusa, “La Cedu e l’Unione Europea” in Marta Cartabia (ed), I diritti in Azione
judgment, see Iris Canor, “ ‘Can Two Walk Together, Except They Be Agreed’? The Relationship
Between International Law and European Law: The Incorporation of United Nations Sanctions
Against Yugoslavia into European Community Law through the Perspective of the European Court
of Justice” (1998) 35 Common Market Law Review 137.
270 Bosphorus (n 266) para 148.
88 The Right to Due Process for Suspected Terrorists
hand, it reasserted that “a Contracting Party is responsible under Article 1 ECHR
for all acts or omissions of its organs.”271 However, after balancing the EU
member states’ obligations to comply with EC law with their duty to ensure
the effectiveness of the ECHR, the ECtHR affirmed that it would not undertake
any review of a national measure implementing an EC act as long as the EC
ensured a level of human rights protection, “as regards both the substantive
guarantees offered and the mechanism controlling their observance, in a manner
which can be considered at least equivalent to”272 the one guaranteed by the
ECHR.
Bosphorus affirmed that the ECtHR would review EC measures through national
implementing acts only as an extrema ratio, if the overall EU system of human
rights protection suddenly fell below the ECHR standard273 and if “in the circum-
stances of a particular case, it is considered that the protection of ECHR rights was
[at the EU level] manifestly deficient.”274 Under this test, Annalisa Ciampi has
plausibly argued that a decision such as the CFI’s ruling in Kadi would not obtain a
remedy before the ECtHR.275 After the accession of the EU to the ECHR,
however, there would be no reason for the ECtHR to preserve this minimalist
approach.276 Rather, it seems likely that the ECtHR will adopt vis-à-vis the EU the
same full standard of review it employs in relation to other contracting parties to the
ECHR. As a consequence, any lowering in the standard of protection in the EU
legal order may come under the scrutiny of the ECtHR. A cursory review of the
case law of the ECtHR in the field of national security also reveals that the ECtHR
has increasingly become a bulwark for the protection of fundamental rights in times
of emergency, regardless of the requirement to comply with UN obligations.
Indeed, in some early decisions the ECtHR had come close to non-justiciability
arguments. For instance, in Behrami and Saramati277 the ECtHR refused to review
the conduct of military operations by several EU countries during the Kosovo War,
since their action had been authorized by the UNSC.278 More recently, however,
271 Bosphorus (n 266) para 153. 272 Bosphorus (n 266) para 155.
273 See Steve Peers, “Limited Responsibility of European Union Member States for Action within the
Scope of Community Law. Case Note to Bosphorus Airways v. Ireland ” (2006) 2 European Constitutional
Law Review 443, 452 (arguing that “the concept of conditional review as developed by the [ECtHR] is
fraught with ambiguities and uncertainties and runs the risk that human rights will not be sufficiently
guaranteed in certain cases”). See also Cathryn Costello, “The Bosphorus Ruling of the European Court of
Human Rights: Fundamental Rights and Blurred Boundaries in Europe” (2006) 6 Human Rights Law
Review 87.
274 Bosphorus (n 266) para 156.
275 Annalisa Ciampi, “L’Union européenne et le respect des droits de l’homme dans la mise en
œuvre des sanctions devant la Cour européenne des droits de l’homme” [2006] Revue générale de droit
international public 85.
276 But see the cautionary remarks of Olivier De Schutter, “The Two Lives of Bosphorus: Redefining
the Relationship Between the European Court of Human Rights and the Parties to the Convention,”
CRIDHO Working Paper No. 6, 2013.
277 Behrami and Behrami v. France and Saramati v. France, Germany and Norway, ECHR [2007]
in Peace Support Operations: The Behrami and Saramati Cases” (2008) 8 Human Rights Law
Review 151.
Future prospects 89
the ECtHR has proved able to face the challenge of protecting rights in times of
emergency.279 In Al-Jedda,280 in a review of a decision by the UK House of
Lords,281 the ECtHR held that the action of the British military in Iraq fell within
the scope of application of the ECHR, irrespective of a UN mandate, and found
that the UK had violated the ECHR.282
Most notably, in the September 2012 Nada case,283 the ECtHR found Switz-
erland to be in violation of the ECHR for its implementation of UNSC sanctions
targeting individuals and entities suspected of financing terrorism. Just like Kadi,
Nada had been blacklisted by the UNSC, with the consequence that all his assets
had been frozen; moreover, he was subject to a travel ban and was unable to move
from Campione d’Italia, an Italian exclave surrounded by Swiss territory. In its
decision, the Grand Chamber of the ECtHR found the case admissible,284 and
approached the complaint primarily from the perspective of Article 8 ECHR,
protecting the right to private and family life. According to the ECtHR, the
“impugned measure constituted a significant restriction on the applicant free-
dom,”285 amounting to an interference with Article 8 ECHR. In undertaking the
test of proportionality, the ECtHR found that while the measure was grounded in
domestic law,286 and pursued a legitimate aim of protecting national security,287 it
was not necessary in a democratic society.288 To achieve this result, the ECtHR
suggested that “Switzerland enjoyed some latitude, which was admittedly limited,
but nevertheless real, in implementing the relevant binding resolution of the UN
Security Council.”289 While this finding dispensed the ECtHR with the need to
determine the question “of the hierarchy between the obligations of the State
Parties to the Convention under that instrument, on the one hand, and those
arising from the United Nations Charter, on the other,”290 the ECtHR ruled that,
having regard to the circumstances of the case, “the restrictions imposed on the
applicant’s freedom of movement for a considerable period of time did not strike a
fair balance between his right to the protection of his private and family life, on the
one hand, and the legitimate aims of the prevention of crime and the protection of
Switzerland’s national security and public safety, on the other”291—thus triggering
a violation of Article 8 ECHR. Furthermore, citing the Kadi decision of the ECJ in
support,292 the ECtHR also found that failure to provide review for the applicant’s
case at the domestic level amounted to a violation of Article 13 ECHR.293
279 See Richard Smith, “The Margin of Appreciation and Human Rights Protection in the ‘War on
Terror’: Have the Rules Changed Before the European Court of Human Rights?” [2011] Essex
Human Rights Law Review 124.
280 Al-Jedda v. United Kingdom, ECHR [2011] App. No. 27021/08 (GC).
281 See text accompanying n 23.
282 For a comment on the judgment, see Marko Milanovic, “Al-Skeini and Al-Jedda in Strasbourg”
294 For comment on the Nada decision, in light of the prospect of the accession of the EU to the
ECHR, see Federico Fabbrini and Joris Larik, “The Accession of the EU to the ECHR and its Effects”
(2014) forthcoming.
295 See also Joris Larik, “Two Ships in the Night or in the Same Boat Together: How the ECJ
Squared the Circle and Foreshadowed Lisbon in its Kadi Judgment” (2010) 13 Yearbook of Polish
European Studies 149 and Deirdre Curtin and Christina Eckes, “The Kadi Case: Mapping the
Boundaries Between the Executive and the Judiciary in Europe” (2009) 5 International Organization
Law Review 365.
296 See text accompanying n 230.
297 Commission Regulation 1190/2008/EC, OJ 2008 L 322.
298 Case T-85/09, Kadi v. Commission (Kadi II), judgment of 30 September 2010, nyr.
299 Kadi II (n 298) para 112.
300 Kadi II (n 298) para 115. 301 See Al-Jedda (n 23).
302 See Youssef Nada v. SECO 1A.45/2007/daa judgment of 14 November 2007 (Swiss Tribunal
Fédéral denying power to review a national measure implementing a UNSC resolution listing
suspected terrorists and freezing their assets, but for its conformity with jus cogens). The same reasoning
was also later employed by the Tribunal Fédéral in A v. Département fédéral de l’économie 2A.783/2008/
svc judgment of 23 January 2008. For an overview of the financial measures adopted by Switzerland to
Future prospects 91
fight international terrorism, see Bruce Zagaris, “Merging of the Counter-Terrorism and Anti-Money
Laundering Regimes” (2003) 34 Law and Policy in International Business 45, 94.
303 Kadi II (n 298) para 121. 304 Kadi II (n 298) para 121.
305 Armin Cuyvers, “The Kadi II Judgment of the General Court: the ECJ’s Predicament and the
Consequences for the Member States” (2011) 7 European Constitutional Law Review 494.
306 Kadi II (n 298) para 149. 307 Kadi II (n 298) para 171.
308 Kadi II (n 298) para 174. But see Lisa Ginsborg and Martin Scheinin, “You Can’t Always Get
What You Want. The Kadi II Conundrum and the Security Council 1267 Terrorist Sanctions
Regime” [2011] Essex Human Rights Review 7, 18 (explaining how the EU institutions were de
facto unable to provide Kadi with evidence justifying his listing for the simple reasons that they did not
have the evidence against him. Evidence, if any, for the listing of individuals and entities is held only by
a few countries—essentially the US—within the UN 1267 Committee and is not shared with other
states).
309 Kadi II (n 298) para 183. 310 Kadi II (n 298) para 193.
311 For further discussion of the Kadi II case, and its implications for the issues of secrecy and
disclosure of information, see Federico Fabbrini, “Global Sanctions, State Secrets and Supranational
Review: Seeking Due Process in an Interconnected World” in David Cole et al (eds), Secrecy, National
Security and the Vindication of Constitutional Law (Edward Elgar 2013) 284, 291.
312 See Cuyvers (n 305) 496.
313 Joined Cases C-584/10 P, C-593/10 P and C-595/10 P, Commission, Council and United
314 Kadi II (n 313) para 67. 315 Kadi II (n 313) para 80.
316 Kadi II (n 313) para 87. 317 Kadi II (n 313) para 110.
318 Joined Cases C-584/10 P, C-593/10 P and C-595/10 P Commission, Council and United
Kingdom v. Kadi (Kadi II), judgment of 18 July 2013, nyr, para 66.
319 Kadi II (n 318) para 66. 320 Kadi II (n 318) para 111.
321 Kadi II (n 318) para 119. 322 Kadi II (n 318) para 120.
323 Kadi II (n 318) para 125. 324 Kadi II (n 318) para 123.
325 Kadi II (n 318) para 123.
Conclusion 93
7. Conclusion
This chapter has analyzed the protection of due process rights for suspected
terrorists after 9/11 in the European multilevel human rights architecture. The
protection of fundamental rights in the European multilevel human rights architecture, see Sionaidh
Douglas-Scott, “A Tale of Two Courts: Luxembourg, Strasbourg and the Growing European Human
Rights Acquis” (2006) 43 Common Market Law Review 629 and Filippo Fontanelli and Giuseppe
Martinico, “Alla ricerca della coerenza: le tecniche del ‘dialogo nascosto’ fra i giudici nell’ordinamento
costituzionale multi-livello” [2008] Rivista Trimestrale di Diritto Pubblico 374.
329 Fabbrini and Larik (n 294). 330 Kadi II (n 318) para 133.
94 The Right to Due Process for Suspected Terrorists
chapter explored the complex constitutional dynamics that have emerged due to the
interaction between state and EU law and has argued that a challenge of effective-
ness has occurred in the protection of due process rights for suspected terrorists
because of the enforcement of a restrictive ceiling of protection at the EU level. The
right to due process is well established in the European multilevel constitutional
system. However, the events of 9/11 triggered the enactment of sweeping counter-
terrorism measures, both at the state and transnational level in Europe, significantly
threatening due process rights. As section 2 underlined, a brief review of the
jurisprudence of national courts has revealed that relevant horizontal differences
arose in the capacity of national courts to uphold fundamental rights in times of
emergency: whereas some jurisdictions ensured vanguard due process standards
even after 9/11, others adopted a much more “security-sensitive” approach, which
sacrificed core due process guarantees in the name of national security.
As international terrorism was perceived as a threat requiring transnational
solutions, the EU has progressively stepped into the field of national security. In
particular, the EU assumed a leading role in implementing the UN global regime
for the fight against terrorism financing. Yet, as section 3 explained, the due process
deficiencies of this sanctions regime—coupled with the initial unwillingness of the
EU courts to ensure judicial review of counter-terrorism measures—created a
number of tensions in the protection of procedural rights in the European
human rights architecture. In Kadi, the CFI deferred to the EU political branches
and set a low-intensity due-process standard for blacklisted individuals and entities,
thus depriving them of the possibility of obtaining meaningful redress at the EU
level. Simultaneously, with the intention of ensuring the full application of UN
resolutions in the EU, the CFI set a ceiling of due process protection to be accorded
to suspected terrorists, thus preventing national courts, especially those with
vanguard standards of due process, of the possibility of going beyond that max-
imum and providing more advanced protection to those subject to blacklisting.
Section 4 considered the dynamics which arose in the European system in
comparative perspective and explored the difficulties in balancing due process
and national security in the experience of the US. The US case is not only
interesting because the US has been at the forefront of the fight against terrorism.
The US is also a federal system in which the task of law enforcement is shared by
the federal government and the states, each of which is endowed with its own
standards of procedural justice. In the aftermath of 9/11, the federal government
enacted a number of sweeping counter-terrorism measures, leading to a stream of
litigation on the process due to individuals detained as suspected terrorists. In the
US, pursuant to the “anti-commandeering” doctrine, state officials cannot be
compelled to execute federal mandates, but federal officials can directly carry out
federal policies—which often threatened state standards of due process in the areas
of policing and law enforcement. This challenge of ineffectiveness was gradually
addressed by the US federal judiciary through a series of decisions that incremen-
tally enhanced the federal due process standard for suspected terrorists.
As section 5 explained, the transformations that have taken place in the US
system mirror those which later occurred in Europe. After their initial debacle, in
Conclusion 95
fact, the EU courts engaged in serious efforts to improve the due process guarantees
accorded to suspected terrorists. In the Kadi case, the ECJ powerfully claimed that
the protection of core constitutional guarantees cannot be suspended for reasons of
national security and struck down for violating EU due process rights an EU
counter-terrorism measure (implementing a UN resolution) freezing the assets of
blacklisted persons. The decision of the ECJ had a remarkable impact both at the
EU and state level, neutralizing possible tensions with national courts endowed
with vanguard due process standards—as subsequently confirmed in the E and F
case, where the ECJ ruled that the listing of a suspected terrorist organization at the
EU level, in violation of due process rights, could not be used by national courts
with vanguard procedural guarantees as the basis for a criminal conviction of
individuals linked to that organization.
At the same time, as section 6 explained, the Lisbon Treaty and the prospect of
the accession of the EU to the ECHR have provided a back-up for the protection of
due process rights for suspected terrorists in EU law. After the accession of the EU
to the ECHR, the EU institutions, including the ECJ, will be bound by the
standards of the ECtHR. Since the ECtHR has increasingly flexed its muscles in
protecting rights during times of emergency, it seems clear that any new judicial
decision akin to the CFI’s ruling in Kadi, would not pass muster before the
ECtHR. As such, I suggested that the interaction between the EU and the
ECHR and the judicial dialogue between their respective courts would prevent
any future risk of a possible watering-down of the EU standards of protection for
due process rights of suspected terrorists. In fact, in the July 2013 decision in Kadi
II, the ECJ disavowed the opinion of the AG—who had advised the EU courts to
limit their review in order to ensure the success of the global counter-terrorism
strategy—and reaffirmed its commitment toward the effective protection of due
process rights as a necessary condition for the preservation of freedom in the
European multilevel human rights architecture.
3
The Right to Vote for Non-Citizens
1. Introduction
The right to vote and to participate in political life is an essential component of any
democracy.1 As Thomas Jefferson famously wrote in the 1776 Declaration of
Independence, “governments are instituted among men deriving their just powers
from the consent of the governed.”2 Who ought to be considered as “the governed”
has nonetheless remained a largely unsettled question in legal practice and political
theory ever since.3 Historically, the boundaries of the franchise have been the object
of contestation in almost every constitutional system and it is only through gradual
and uneven developments that disenfranchised groups such as the poor, women,
minorities, and the young have obtained the right to participate in the body
politic.4
This chapter analyzes the protection of the right to vote for non-citizens in the
European multilevel human rights architecture. Its aim is to explore the constitutional
dynamics that emerge from the interaction between the standards for the enfranchise-
ment and political inclusion of non-citizens existing in the legal systems of the member
states and those developing within the framework of the European Union (EU) and of
the European Convention on Human Rights (ECHR). To clarify the terminology,
the terms “non-citizens” (or “aliens” or “foreigners”) refer here both to what in the
EU legal jargon are defined as “second-country nationals” and “third-country nation-
als”: the first category identifies the citizens of one of the EU member states
characterized by five standards: “1. effective participation 2. equality in voting 3. gaining enlightened
understanding 4. exercising final control over the agenda 5. inclusion of adults”).
2 For an historical account of the philosophical underpinnings of the Declaration of Independence,
see Gordon Wood, The Creation of the American Republic (Norton 1993) 181.
3 See Cristina Rodriguez, “Noncitizen Voting and the Extraconstitutional Construction of the
Polity” (2010) 8 International Journal of Constitutional Law 30; Rainer Bauböck, “Stakeholder
Citizenship and Transnational Political Participation: A Normative Evaluation of External Voting”
(2007) 75 Fordham Law Review 2392.
4 See Michel Troper, “The Concept of Citizenship in the Period of the French Revolution” in
Massimo La Torre (ed), European Citizenship: An Institutional Challenge (Kluwer 1998) 27 (empha-
sizing how, since the French Revolution, a distinction has been drawn between “citizenship” and
“nationality” precisely for the purpose of defining that privileged class of individuals who, among the
nationals of a state, enjoy full political rights: i.e. the citizens). See also Benoit Guiget, “Citizenship and
Nationality: Tracing the French Roots of the Distinction” in Massimo La Torre (ed), European
Citizenship: An Institutional Challenge (Kluwer 1998) 95.
Introduction 97
who reside in another EU member state, while the second defines the citizens of a non-
EU country who permanently reside in one of the member states of the EU.
The chapter argues that the emergence in Europe of layers for the protection of
voting rights for non-citizens beyond the member states have created complex
dynamics. Whereas the EU member states differ widely in their regulation of the
extension of voting rights to non-citizens who are long-term residents, trans-
national law has steadily advanced rules for the political empowerment of foreigners
inspired by an open and inclusive vision of the polity. The interaction between
domestic laws and developing supranational standards has thus revealed a number
of tensions, putting under pressure those state regimes which constrain the electoral
entitlements of second-country nationals and tout court exclude third-country
nationals from the franchise. Most notably, EU primary and secondary law has
raised the floor for the protection of voting rights for non-citizens, challenging the
consistency of those state regimes embracing a very restrictive notion of the political
community, while letting states with more liberal standards for aliens’ enfranchise-
ment free to go beyond the transnational minimum.
As the chapter claims, a challenge of inconsistency somehow comparable to the
one at play in Europe has historically characterized the experience of the United
States (US), due to the interaction between state and federal rules on voting rights.
Whereas originally the US states were sovereign in defining the boundaries of their
citizenship and suffrage—and had widely diverging laws on the enfranchisement of
both citizens of other US states and non-US aliens—since the aftermath of the Civil
War the federal government has also acquired competences in the field of electoral
rights: as a result, a number of tensions emerged between the standards of enfran-
chisement advanced at the federal level and the rules in force in a number of US
states. Over time, however, legislative action and court rulings removed obstacles to
the full enfranchisement of US citizens moving from one state to another. At the
same time, while the states have remained autonomous in deciding whether to
extend voting rights to non-US citizens, the issue of political inclusion of non-US
citizens has been increasingly addressed in the US through the adoption of a federal
naturalization law, which has made access to US citizenship (and thus voting rights)
uniform throughout the US.
As such, while a comparative analysis of the US example reveals the existence of
historical dynamics analogous to those in Europe, it also underlines a trend of
development which differs from, and goes beyond, the one thus far experienced in
Europe. The chapter, however, considers a number of recent decisions by the EU
Court of Justice (ECJ) and assesses their impact on the protection of voting rights for
non-citizens in Europe. In several cases the ECJ has affirmed the relevance of EU
citizenship as a status carrying substantive rights,5 and has simultaneously reviewed
state legislation regulating access to the franchise for the European Parliament. In this
case law, the ECJ struck down state laws disenfranchising EU citizens6 and upheld
nationals across the EU. To this end, the chapter concludes with a discussion of
several Treaty reforms which could be envisioned to achieve this end.
9 In his celebrated sociological theory of citizenship Thomas Marshall, Citizenship and Social Class
(CUP 1950) argued that political rights (i.e. voting rights) were the second wave of entitlements that
the people obtained vis-à-vis the state during the course of the 19th century, after the acquisition of
civil rights in the 18th century liberal revolutions and before the conquest of social rights during the
20th century.
10 See Virginie Giraudon, “Citizenship Rights for Non-Citizens” in Christian Joppke (ed), Chal-
lenge to the Nation-State (OUP 1998) 272 and Christian Joppke, “The Evolution of Alien Rights in the
United States, Germany and the European Union” in Alexander Aleinikoff and Douglas Klusmeyer
(eds), Citizenship Today: Global Perspectives and Practices (Carnegie Endowment for International
Peace 2001) 36.
11 See Ulrich Preuß et al, “Traditions of Citizenship in the European Union” (2003) 7 Citizenship
Studies 3, 8 and Linda Bosniak, “Constitutional Citizenship Through the Prism of Alienage” (2002)
63 Ohio State Law Journal 1285.
12 For an assessment of the legislation of the member states on alien suffrage in the broader context
of the process of European integration, see Jo Shaw, The Transformation of Citizenship in the European
Union: Electoral Rights and the Restructuring of the Political Space (CUP 2007) 76 ff.
13 See Heather Lardy, “Citizenship and the Right to Vote” (1997) 17 Oxford Journal of Legal
16 Article 26 of the Constitution and in the Matter of the Electoral (Amendment) Bill 1983, In re
[1984] 1 I.R. 268 (Irish Supreme Court declaring unconstitutional a legislative bill extending voting
rights to non-citizens).
17 See Ko-Chih Tung, “Voting Rights for Alien Residents: Who Wants It?” (1985) 19 Inter-
least some classes of) non-EU citizens: Belgium, Denmark, Estonia, Finland, Hungary, Ireland,
Lithuania, Luxembourg, the Netherlands, Portugal, Slovakia, Slovenia, Spain, Sweden, and the
UK. For a detailed examination of the issue, see Giovanna Zincone and Simona Ardovino, “I diritti
elettorali dei migranti nello spazio politico e giuridico europeo” [2004] Le Istituzioni del Federalismo
741 and Kees Groenendijk, Local Voting Rights for Non-Nationals in Europe: What We Know and What
We Need to Learn (Migration Policy Institute 2008).
20 Art B 3(2) Kieswet, 28.09.1989 (Ne.) (consolidated version of the electoral Act) (official English
translation).
21 Loi du 19 mars 2004 visant à octroyer le droit de vote aux élections communales à des étrangers,
F. 2004–1386 (Be.).
22 See Section 1 Bekendtgrelse af lov om kommunale og regionale valg (Dk.) (consolidated version
attained eighteen years of age, has the right to vote in municipal elections and
municipal referendums, as provided by an Act. Provisions on the right to otherwise
participate in municipal government are laid down by an Act.”24
On the other hand, a third group of EU states do not currently extend voting
rights to non-citizens at the local level although nothing would prevent them from
doing so by enacting appropriate legislation. This seems to be the case, for example,
in Italy where Article 48 of the Italian Constitution states that “all citizens have the
right to vote.”25 Academics debate whether the provision should be interpreted
restrictively or as authorizing the legislature to enfranchise other residents besides
citizens.26 In a series of rulings reviewing regional laws extending voting rights at
the local level to non-citizens, the Corte Costituzionale declared these provisions
purely programmatic (i.e. deprived of any legally binding force) as the Constitution
expressly reserves exclusive competence in the field of electoral law to the national
legislature.27 The Corte Costituzionale, however, did not interpret Article 48 of
the Italian Constitution as prohibiting the national Parliament from enacting a
bill enfranchising third-country nationals at the local level, if it so wished.
A similar situation exists in Poland, where Article 16 of the Polish Constitution
defines local self-government as the political association of its inhabitants,28 and the
Trybunał Konstytcyjny has confirmed that an extension of local voting rights to
foreign residents would be constitutional.29 However, the legislature has never
followed suit.
In a final group of member states, on the contrary, voting rights are constitu-
tionally restricted to citizens and any expansion of the franchise to non-citizens
requires a burdensome process of constitutional amendment. In Germany, in
particular, the Bundesverfassungsgericht has closed all doors to the possibility of
extending by legislative means voting rights to non-citizens, even at the local level,
by equating the space of democratic participation with the idea of nationhood.30 In
the late 1980s, in fact, the attempt by two Länder to extend voting rights to foreign
residents in local and Land elections was declared unconstitutional by the Bundes-
verfassungsgericht, which affirmed that the constitutional concept of “Volk” ought
dell’integrazione politica degli stranieri” [2003] Federalismi.it 11 (arguing that “nothing prohibits
the extension by ordinary law to non-citizens of the subjective rights granted by the Constitution to
citizens” (my translation: “nulla impedisce che dei diritti soggettivi attribuiti dalla Costituzione al
cittadino siano riconosciuti anche allo straniero mediante una legge ordinaria”)) with Tommaso
Giupponi, “Stranieri extracomunitari e diritti politici. Problemi costituzionali dell’estensione del diritto
di voto in ambito locale,” Forum Costituzionale Paper, 2006, 6 (defending a restrictive construction of
the provision).
27 C. Cost n. 372/2004 (statute of Region Tuscany); C. Cost n. 379/2004 (statute of Region
Emilia-Romagna).
28 Art 16.1 Const. Pl.
29 Trybunał Konstytucyjny, decision of 11 May 2005, K 18/04.
30 See Gerald Neuman, “ ‘We Are the People’: Alien Suffrage in German and American Perspective”
(1992) 13 Michigan Journal of International Law 259 and Ruth Rubio Marin, “Equal Citizenship and
the Difference that Residence Makes” in Massimo La Torre (ed), European Citizenship: An Institutional
Challenge (Kluwer 1998) 201, 210 ff.
102 The Right to Vote for Non-Citizens
to be interpreted as restricting electoral rights only to German nationals, and made
clear that any expansion of the franchise to non-citizens required a constitutional
change.31 A similar stance was also adopted by the Austrian Verfassungsgerichtshof,
which in 2004 declared a Land bill allowing third-country nationals to participate
in local elections unconstitutional for violation of the principle of homogeneity
of the electoral body.32 More recently, the Greek Symvoulio tis Epikrateias, citing
decisions by the German and Austrian courts, ruled that the extension of the
franchise at local level to non-citizens violated the constitutionally enshrined
principle of the sovereignty of the Greek people.33
As this short outline makes clear, therefore, the legislation of EU member states
differs greatly on the question of voting rights for non-citizens: whereas some states
enfranchise several groups of aliens even for national elections, others deem any
extension of the suffrage beyond the citizenry as unconstitutional. At the same
time, state laws regulating access to the suffrage intersect with very different regimes
on access to citizenship. In the abstract, it would be conceivable that a state restricts
voting rights only to citizens but provides, through an open nationality law, a
means for the inclusion of long-term resident-aliens into the polity. In fact, the
enfranchisement of foreigners and access to citizenship constitute complementary
instruments to ensure the involvement of aliens in the political life of the state in
which they reside.34 However, since each state’s nationality law “is simultaneously
based on juridical traditions, nation-State building, international influences and the
role played by migration”35 EU countries also differ significantly in the specificities
of the criteria necessary to acquire national citizenship. In addition, there is no
absolute correlation between the openness of a state’s voting rights regime and the
inclusiveness of a state’s nationality law.
Generally, “citizenship can be acquired in any one of four ways: by descent ( jus
sanguinis), by birthplace ( jus soli), by naturalisation or by registration.”36 Without
entering into the detail, it should be stressed that the inclusiveness of a legal regime
depends on the combination of these criteria.37 A first group of EU member states
have extremely inclusive regulation of citizenship: traditionally, in Ireland and
Belgium unconditional jus soli applied38—although recent legislative reforms
31 BVerfGE 63, 37 (1990) (statute of Land Schleswig-Holstein); BVerfGE 63, 60 (1990) (statute
of Land Hamburg).
32 VfSlg 17.264/2004 [2004].
33 Symvoulio tis Epikrateias, 460/2013, decision of 4 February 2013, para 12.
34 See Rainer Bauböck, “Expansive Citizenship: Voting Beyond Territory and Membership”
Alexander Aleinikoff and Douglas Klusmeyer (eds), Citizenship Today: Global Perspectives and Practices
(Carnegie Endowment for International Peace 2001) 17, 18.
36 Atsushi Kondo, “Comparative Citizenship and Aliens’ Rights” in Atsushi Kondo (ed), Citizen-
ship in a Global World: Comparing Citizenship Rights for Aliens (Palgrave 2001) 225, 227.
37 For a comparative assessment of nationality laws in Europe, see the detailed database of the
to every person born in the country) and Code de la nationalité belge (Be.) (same).
Context 103
have now restricted the automatic granting of citizenship only to infants born of
parents who have lived in the country for a number of years prior to the birth.39 In
other member states, such as France, a mitigated jus soli exists.40 Similar legislation
was also introduced in Germany in 1999.41 Conversely, in a last group of states a
rigid abidance to the principle of jus sanguinis severely restricts the possibility for
aliens to obtain citizenship. This is the case, among others, for Italy,42 Austria,43
and Denmark.44 At the same time, naturalization is available in all member states
but the number of years of residence required and the additional conditions (e.g.,
knowledge of history or language, loyalty oath, good character, and renunciation of
prior nationality) vary considerably between the EU countries.45 As a consequence,
for foreigners the acquisition of citizenship can turn out to be extremely difficult in
several EU member states while being quite straightforward in others.
By combining state variations on franchise rules for non-citizens with state
variations in access to citizenship, it has been recently suggested in a report for
the European Parliament that EU member states can be re-classified “into four
regime types according to the combination of the relative inclusiveness of the local
franchise and citizenship: exclusive, inclusive, citizenship-based and denizenship-
based.”46 At one end of the spectrum are state legal systems that offer both liberal
voting rules for non-citizens and open rules on access to citizenship. At the opposite
end are state legal systems that instead unite an exclusive franchise, reserving
the right to vote only to citizens, with restrictive regulation of access to citizenship.
Between these two extremes one can place state systems that do not extend
voting rights to aliens but have relatively open nationality laws—following a
citizenship-based model of enfranchisement; and state systems that offer exclusion-
ary rules for the acquisition of citizenship, but are relatively liberal in extending
suffrage to non-citizens—following a denizenship logic. In the end, therefore, an
overview of state standards in the field of voting rights for non-citizens reveals an
39 See Irish Nationality and Citizenship Act 2004 (Act No. 38/2004) (Ir.), s 3 (excluding the
application of jus soli for children born in Ireland of non-Irish citizens who had not been resident for at
least four years) and Loi du 4 decembre 2012 modifiant le Code de la nationalité belge afin de rendre
l’acquisition de la nationalité belge neutre du point de vue de l’immigration, F. 2012–79998 (Be.),
Art 6 (granting citizenship to persons born in the country only if at least one of their parents had also
been born there and had been resident there for five years).
40 See Benoit Guiget, “Citizenship Rights for Aliens in France” in Atsushi Kondo (ed), Citizenship
in a Global World: Comparing Citizenship Rights for Aliens (Palgrave 2001) 71, 73.
41 See Kai Hailbronner, “Citizenship Rights for Aliens in Germany” in Atsushi Kondo (ed),
Citizenship in a Global World: Comparing Citizenship Rights for Aliens (Palgrave 2001) 100, 111.
Before the 1999 reform, Germany was considered as one of the countries with the strictest legislation
worldwide in the attribution of citizenship to aliens. See Merih Anil, “No More Foreigners? The
Remaking of German Naturalization and Citizenship Law, 1990–2000” (2005) 29 Dialectical
Anthropology 453.
42 See Legge 5 febbraio 1992, n. 91 (G.U. 15 febbraio 1992, n. 38) (It.).
43 See Staatsbürgerschaftgesetz, Bundesgesetzblatt No. 311/1985 (Aust.).
44 See Lov om dansk indfdsret (Dk.) (consolidated version of the Danish Nationality Act).
45 See also Liav Orgad, “Illiberal Liberalism: Cultural Restrictions on Migration and Access to
European Union and of European Citizens Residing in Third Countries,” commissioned by the
Constitutional Affairs Committee of the European Parliament, PE 474.441 (2013) 67.
104 The Right to Vote for Non-Citizens
intricate picture.47 The laws of the EU member states, however, are increasingly
subject to supranational influences.
Need for More Guidance” (2009) 5 European Constitutional Law Review 464.
52 Hirst v. United Kingdom, ECHR [2005] App. No. 74025/01 (GC) (ECtHR ruling that the UK was
in violation of Art 3 of the 1st Additional Protocol to the ECHR for depriving prisoners of voting rights).
As is well known, the decision produced a very strong negative reaction in the UK. See the debates in the
House of Commons: House of Commons, 10 February 2011, col 493 (David Davis MP asking: “is the
requirement to give prisoners the vote sensible, just, right and proper? Secondly, who should decide?
Should it be the European Court of Human Rights, or this House on behalf of the British people?”).
53 Matthews v. United Kingdom, ECHR [1999] App. No. 24833/94 (GC).
54 The literature on the decision is wide and mostly focuses on the issue of the authority of the
ECtHR to review a measure adopted by a contracting party to the ECHR in its capacity as a member
state of the EU. See Iris Canor, “Primus Inter Pares. Who is the Ultimate Guardian of Human Rights in
Europe” (2000) 25 European Human Right Review 1, 3. For an analysis of the electoral issues involved
in the decision, see Henry Schermers, “Case Note: Matthews v. UK ” (1999) 36 Common Market Law
Review 673.
55 For a discussion on the admissibility of the case, see Chapter 2.
Challenge 105
Albania, Denmark, Finland, Iceland, Italy, the Netherlands, Norway, and Sweden. See Zincone and
Ardovino (n 19) 743.
63 The Parliamentary Assembly is one of the statutory bodies of the Council of Europe. It is
composed of representatives from each of the contracting parties who are elected or appointed by
national parliaments. It exercises advisory functions. See Tony Joris and Jan Vandenberghe, “The
Council of Europe and the European Union: Natural Partners or Uneasy Bedfellows?” (2009) 15
Columbia Journal of European Law 1, 5.
64 See Council of Europe Parliamentary Assembly Recommendation 1625(2003) } iv.c.
65 See Heather Lardy, “The Political Rights of Union Citizenship” (1996) 2 European Public Law
Review 611. See also Maria Fraile Ortiz, “Citizenship in Europe—Consequences of Citizenship”
(2007) 19 European Review of Public Law 125.
66 Act concerning the election of the representatives of the European Parliament by direct universal
suffrage, annexed to Decision 76/787/EEC, OJ 1976 L 278/5. The decision did not introduce voting
106 The Right to Vote for Non-Citizens
the enactment of the Maastricht Treaty in 1992 that electoral rights for non-
citizens experienced a novel expansion under the concept of EU citizenship.67
Article 17 of the then European Community Treaty (TEC) affirmed that “every
person holding the nationality of a Member State shall be a citizen of the Union.
Citizenship of the Union shall complement and not replace national citizenship,”
and today (with similar but somewhat innovative language)68 Article 9 EU Treaty
(TEU)—inserted by the Lisbon Treaty—states that “every national of a Member
State shall be a citizen of the Union. Citizenship of the Union shall be additional to
national citizenship and shall not replace it.” Among the privileges attached to
the possession of EU citizenship electoral rights feature prominently, together with
the right of free movement.69 Citizens of EU member states, in particular, have the
right to vote and stand as candidates at both municipal elections and European
Parliament elections in their member state of residence, when this differs from their
member state of nationality.70 As currently enshrined in Article 20(2)(b) Treaty on
the Functioning of the European Union (TFEU)—and subsequently repeated in
the same terms in Article 22 TFEU (ex Art 19 TEC)—EU citizens have “the right
to vote and to stand as candidates in elections to the European Parliament and in
municipal elections in their Member State of residence, under the same conditions
as nationals of that State.”
The detailed arrangements and derogations for the exercise of the right to vote
and stand in European Parliament and local elections for EU citizens residing in a
member state of which they are not nationals are contained in Directives 93/10971
and 94/8072 adopted unanimously by the Council after consulting the European
Parliament, as specified by then Article 19 TEC (now Art 22 TFEU). As the recitals
of the two directives acknowledge, electoral rights are part of the EU task to
“organize, in a manner demonstrating consistency and solidarity, relations between
the peoples of the Member States”73 and are “a corollary of the right to move and
rights to European Parliament elections for citizens of an EU member state residing in another member
state. However, some EU countries (e.g., Italy) autonomously extended to all residents holding the
nationality of another EU member state the right to stand in elections for the European Parliament. See
Legge 18 gennaio 1989 n. 9 (G.U. 23 gennaio 1989, n. 18) (It.).
67 See Flora Goudappel, “From National Citizenship to European Union Citizenship: The
Re-Invention of Citizenship?” (2007) 19 European Review Public Law 21; Dora Kostakopoulou,
“European Union Citizenship: Writing the Future” (2007) 13 European Law Journal 623.
68 See n 219.
69 See George Bermann, “European Citizenship at Center-Stage: Introduction” (2009) 15 Co-
lumbia Journal of European Law 165; Siofra O’Leary, “The Relationship Between Community
Citizenship and the Protection of Fundamental Rights in Community Law” (1995) 32 Common
Market Law Review 519. The literature on free movement rights of EU citizens is very broad. See
among many, Norbert Reich, “The Constitutional Relevance of Citizenship and Free Movement in an
Enlarged Union” (2005) 11 European Law Journal 675; Siofra O’Leary, “Developing an Ever Closer
Union Between the Peoples of Europe? A Reappraisal of the Case Law of the Court of Justice on the
Free Movement of Persons and EU Citizenship” (2008) 27 Yearbook of European Law 167.
70 See Dimitry Kochenov, “Ius Tractum of Many Faces: European Citizenship and the Difficult
Relationship Between Status and Rights” (2009) 15 Columbia Journal of European Law 169, 197 ff.
71 Council Directive 93/109/EC, OJ 1993 L 329/34.
72 Council Directive 94/80/EC, OJ 1994 L 368/38.
73 Directive 93/109, recital 1; Directive 94/80, recital 1.
Challenge 107
reside freely enshrined in [the Treaties].”74 The aim of these provisions “is es-
sentially to abolish the nationality requirement to which most Member States
currently make the exercise of the right to vote and to stand as a candidate subject.”75
Their operation, however, is without prejudice “for the right to vote and to stand as
a candidate in the Member State of which the citizen is a national.”76 On technical
grounds,77 the two directives specify that EU citizens can exercise the right to vote
in the member state of residence if they have expressed the wish to do so simply by
producing a formal declaration. Appropriate measures can be adopted by member
states to prevent the individual concerned from voting twice and to ensure that he
has not been deprived of the right to vote in his home state. Applications to stand as
a candidate are subject to the same conditions that apply to national candidates.
However, to address the specific concerns of some EU countries the directives
recognize that the right to stand as the head of a local government unit can be
restricted to nationals only.78 Voting rights both in local and EU elections may
additionally be subject to specific residency requirements in those states in which
the proportion of non-national citizens of the EU of voting age exceeds one-fifth of
the electoral population.79
Therefore, as EU primary and secondary legislation makes clear, the progressive
steps taken to enhance European political integration have had relevant conse-
quences for the issue of voting rights for non-citizens.80 By being awarded the status
of EU citizens, nationals of the EU member states have acquired a supplementary
voice in the electoral process. Although the EU provisions dealing with voting
rights in municipal and European Parliament elections are technically framed as
non-discrimination clauses, their effect is to endow second-country nationals with
the right to vote and to stand for elections at the local as well as supranational level
in their country of residence.81 Moreover, these rights are directly effective in all
member states (subject to the arrangements and the derogations set out in the
directives mentioned above) and prevail over contrary national law, including
Cartabia, “Cittadinanza europea” in Enciclopedia Giuridica (Treccani 1995) vol. 6 ad vocem 8 ff and
Epaminondas Marias, “European Citizenship in Action: From Maastricht to the Intergovernmental
Conference” in Massimo La Torre (ed), European Citizenship: An Institutional Challenge (Kluwer
1998) 293.
78 See Directive 94/80, Art 5. This provision was specifically adopted to address the concerns of
France. See Bertand Mathieu and Michel Verpeaux, Droit contitutionnel (PUF 2004) 460 and further
n 112. According to Marias (n 77) 300, however, such derogation is “contrary to the case law of the
ECJ . . . which prohibits any discrimination based on nationality” (quoting Case C-92/92 Collins
[1993] ECR I-5145).
79 See Directive 93/109, Art 14 (and, with similar language, Directive 94/80, Art 12). These
provisions were specifically adopted to address the concerns of Luxembourg. See, however, the critical
comments of Kochenov (n 70) 204.
80 See Cartabia (n 77) 7; Lardy (n 66) 612; Shaw (n 12) 25 ff.
81 See Kochenov (n 70) 201–3; Shaw (n 12) ch 5. This interpretation was confirmed by AG
Tizzano in his Joint Opinion in Case C-145/04 Spain v. United Kingdom and Case C-300/04 Eman
and Sevinger [2006] ECR I-7920, paras 67–8.
108 The Right to Vote for Non-Citizens
constitutional law. EU law has introduced a new standard for the protection of
voting rights for non-citizens, which enlarges the pre-existing boundaries of the
franchise with the aim of achieving greater political inclusion across Europe. Yet, by
recognizing that each member state must open its electoral process up to individuals
who do not hold its nationality, EU law has put under pressure those member states
with restrictive laws and practices in the field of voting rights. As has been argued:
Within the EU, tensions arise because EU citizens can vote in certain elections (municipal,
European) regardless of residence, but not in all elections, notably rarely in national
elections. In addition, there are uneven patterns of coverage of voting rights for third
country citizens in the EU Member States, and they, in turn, will have different rights in
relation to their states of origin. This gives rise to complex and sometimes confusing patterns
of entitlement based upon variables of nationality and residence that citizens find hard to
navigate.82
The interplay between supranational and domestic law generates several tensions
with regard to the electoral rights of second-country nationals.83 As previously
mentioned, EU citizens who reside in an EU state of which they are not nationals
are granted in the member state of residence “the right to participate in politics by
way of elections (both actively and passively) at two of at least three vital levels of
political representation.”84 By creating a common core of fundamental privileges
for the nationals of EU member states anywhere they reside within the EU,85
EU law has empowered second-country nationals to vote in municipal and
supranational elections—but not national elections—in their member state of
residence.86 However, “in the absence of a universal Community law definition of
‘municipal’, the practical application of Article 19(1) TEC [now Art 22(1) TFEU]
de facto results in numerous inconsistencies, since what some Member States view
as ‘municipal’ can easily fall within the meaning of ‘national’ in others.”87 For
example, the UK as one of the states with a tradition of non-citizen enfranchise-
ment, extends to EU citizens a right to cast a ballot for the devolved legislatures of
Scotland, Wales, and Northern Ireland,88 whereas Germany and Austria, as states
with a very restrictive understanding of suffrage, disenfranchise EU citizens from
I-1191, para 47 stating that “a Community national [is] . . . entitled to assume that, wherever he goes to
earn his leaving in the European Community, he will be treated in accordance with a common code of
fundamental values, in particular those laid down in the ECHR . In other words, he is entitled to say
‘civis europeus sum’ and to invoke that status in order to oppose any violation of his fundamental rights.”
86 See Lardy (n 66) 626; Ortiz (n 65) 128; Shaw (n 12) 195.
87 Kochenov (n 83) 209. Note that recital 7 of Directive 94/80 acknowledges that “the term
‘municipal election’ does not mean the same thing in every Member State” and Annex I to the directive
contains a list of the local government units which according to the electoral laws of the member states
fall within the scope of application of Art 22(1) TFEU (ex Art 19(1) TEC).
88 See Scotland Act 1998, 46 Eliz. 2, c. 46, s 11(1)(a); Government of Wales Act 1998, 46 Eliz. 2,
c. 38, Sch 1 para 10(1); Northern Ireland (Election) Act 1998, 46 Eliz. 2, c. 12, s 2(2) (UK).
Challenge 109
the elections of those municipalities which are also Länder.89 Hence, the develop-
ment of a floor for the protection of voting rights for second-country nationals at
the EU level has left states with a liberal conception of the franchise free to extend
even more electoral rights to EU citizens (including voting rights in regional
elections). On the other hand, the emergence of standards of legal entitlement at
the supranational level which aim to achieve inclusion of immigrants who are long-
term residents in the EU has put under pressure restrictive state voting rules thus
revealing the existence of “notable discrepancies between the rights enjoyed by
European citizens in different Member States.”90
Moreover, the recognition of electoral rights at the supranational level highlights
points of tension with state provisions denying expatriate voting at national level.
As previously indicated, the national level of political representation in the member
state of residence is currently left uncovered by EU law.91 Hence, while some
European countries (notably the UK and Ireland) have autonomously decided to
go beyond the transnational minimum and enfranchise some classes of foreigner
even for parliamentary elections, the vast majority of EU states restrict voting rights
for aliens at the local level or exclude them tout court.92 As long as EU member
states allow expatriate voting, the lack of EU provisions establishing a right to vote
in national elections in the member state of residency for individuals who reside
abroad might be seen as compensated for by the possibility for them to take part in
the choice of the legislature in their member state of nationality.93 With the aim of
emphasizing the link which should exist between an individual and the community
mainly affecting his interests, it has been claimed that “the country of residence
[should be] primarily responsible for the inclusion of its resident population [and
that] the country of origin should arguably not bear the obligation to make up for it
by allowing emigrants . . . to decide the political future of those who stayed
behind.”94 Nonetheless, as unsatisfactory as it may be, the possibility of casting
an absentee vote at least allows the persons concerned to express their voice in the
election of one national legislature.95
A problem arises, though, for those EU member states which disenfranchise
voters who no longer reside in the state or who have not been resident for a number
of consecutive years.96 Certainly, the decision of states to withhold the right to vote
89 See VfGH B3113/96, B3760/97 [1997] (Austrian Verfassungsgerichtshof holding that disen-
franchisement in the election for the municipality of Vienna of non-Austrian EU citizens residing in
Vienna was admissible because the right to vote for local elections in the country of residence granted
by EU law does not include the right to vote for a municipality which is also a Land in a federal system
of government).
90 Kochenov (n 83) 209. 91 See Kochenov (n 70) 199.
92 See Section 1. 93 See Shaw (n 12) 197.
94 Ruth Rubio Marin, “Transnational Politics and the Democratic Nation-State: Normative
Challenges of Expatriate Voting and Nationality Retention of Immigrants” (2006) 81 NYU Law
Review 117, 130–1.
95 See Shaw (n 12) 197.
96 According to Kochenov (n 83) 201, seven EU countries currently deny expatriate voting (some,
after a number of years abroad): Cyprus, Greece, Hungary, Ireland, Malta, Slovakia, and the UK.
110 The Right to Vote for Non-Citizens
from their citizens who live abroad is closely linked to the history and political
culture of a given state.97 Countries which have traditionally been a place of
emigration, or which have large minority groups located outside their national
borders, may be more favorable toward preserving ties with their overseas commu-
nities than would states of immigration.98 Hence, for instance, although Italy does
not recognize voting rights for foreign residents even at the local level, its Con-
stitution has recently been amended to ensure greater representation in both
chambers of Parliament of “Italians living abroad.”99 The opposite rule exists, for
example, in the UK where citizens lose their voting rights after 15 years of
continuous residence outside British territory.100 The legal or factual impossibility
of casting an absentee vote in several EU member states however generates an
unsatisfactory situation: EU citizens who move to reside in a host member state,
while gaining the right to vote at the municipal and supranational level there, are
disenfranchised from voting in national elections.101 This situation seems at odds
with the logic of the EU internal market: “instead of benefiting from both free-
movement and national political representation rights, [EU citizens] are facing an
impossible choice.”102 However, national rules disenfranchising EU citizens
expatriated in another member state also appear in tension with the new supra-
national normative arrangement and “the creation of a new form of citizenship
under the auspices of the [EU].”103 Since the purpose of EU electoral rights is to
allow EU citizens to participate in political life and express their voice in elections
even when they reside outside their country of nationality in Europe, the impos-
sibility of casting a vote in general elections “highlights the . . . tension between
national constitutional models and the models of democratic inclusion required by
the goal of European citizenship.”104
Furthermore, the interaction between supranational and domestic law also
generates a number of tensions with regard to the electoral rights of third-country
nationals permanently resident in the EU. It was highlighted in the previous section
that, while some EU countries have adopted legislation or ratified international
agreements (such as the CPFPL) that enfranchise non-citizens in local elections,
(constitutional revision bill modifying Arts 56 and 57 Const. It. to ensure that 12 deputies and six
senators are elected by Italians leaving abroad). See Valerio Onida, “Relazione Introduttiva” in Atti del
Convegno Annuale dell’Associazione Italiana dei Costituzionalisti: “Lo statuto costituzionale del non
cittadino” (Jovene 2010) 3, 6.
100 See Kochenov (n 83) 213.
101 See Lardy (n 66) 622; Kochenov (n 83). 102 Kochenov (n 83) 223.
103 Sujit Choundhry and Cheryl Saunders, “Symposium of Citizenship: Foreword” (2010)
other EU member states still restrict suffrage to citizens only.105 Nevertheless, the
arguments advanced in these countries to disenfranchise aliens—either based on an
ethnic concept of “people”106 or on a republican ideal of citizenship107—lose much
of their strength and become difficult to justify in light of the impact of EU law.108
Indeed, “once a Member State has opened its polling stations to Union citizens
who lack its legal citizenship, what principled ground can it advance for refusing to
consider the claims of other non-[]citizens to be admitted?”109 Certainly, the
provisions granting voting rights to EU citizens in their country of residence
introduced by the Maastricht Treaty were of such significance that constitutional
amendments were required in a number of member states in order to ratify the
treaty.110 Hence, for example, Germany expressly introduced a clause allowing EU
citizens to vote in local elections in its Basic Law111 and France did the same in
Article 88–3 of its Constitution (where specific arrangements were also made to
ensure that foreigners would neither be allowed to “exercise the role of major or
deputy nor to participate in the designation of the senatorial electors or to the
election of senators”).112 Still, by extending the franchise to a certain class of non-
citizens (second-country nationals), those countries have compromised the claim in
favor of the purity of the electoral body and opened the door for the extension of
suffrage to other classes of non-citizen.113
In addition, on the basis of the provisions of former Title V TEC, Directive
2003/109 on the status of third-country nationals who are long-term residents was
adopted in 2003.114 This framework legislation extends to third-country nationals
many of the rights enjoyed by EU citizens—although with some exceptions,
including voting rights115—on the assumptions that “both experience similar
forms of dislocation when they reside in a State where they lack the nationality.”116
The principle underpinning the Directive “is that domicile generates entitlements
la désignation des électeurs sénatoriaux et à l’élection des sénateurs”). The constitutional revision was
required by Conseil Constitutionnel Décision 92–308 DC, paras 26–7 (holding that the ratification of
the TEU required a constitutional amendment). See also Décision 92–312 DC (French Conseil
Constitutionnel upholding the law authorizing the ratification of the TEU). In the literature, see
Mathieu and Verpeaux (n 78) 318.
113 See Kochenov (n 70) 227–8; Horvath and Rubio Marin (n 106) 87.
114 Council Directive 2003/109/EC, OJ 2004 L 16/44. In the literature, see Dora Kostakopoulou,
“ ‘Integrating’ Non-EU Migrants in the European Union: Ambivalent Legacies and Mutating Para-
digms” (2002) 8 Columbia Journal European Law 181.
115 See Samantha Besson and André Utzinger, “Introduction: Future Challenges of European
Citizenship—Facing a Wide-Open Pandora’s Box” (2007) 13 European Law Journal 573, 580;
Goudappel (n 67) 41.
116 Shaw (n 12) 236.
112 The Right to Vote for Non-Citizens
both in the forms of equalization of the treatment of third country nationals with
nationals of the host Member State in socio-economic life and enhanced protection
against expulsion as well as rights of mobility within the EU.”117 In light of these
developments at EU level, the disenfranchisements of permanent-resident
third-country nationals in some EU member states generates asymmetries across
Europe:118 citizens of non-EU countries who have resided for five years in an EU
member state are automatically entitled to obtain long-term residence status, they
enjoy a common core of rights, but they can vote in local elections only if they
happen to reside in an EU state which accords them such a right.119 Undoubtedly,
EU law only sets a floor for the treatment of aliens, and states are free to go beyond
this by extending more rights (including voting rights) to third-country nationals.
However, the emergence of standards of legal entitlement at the supranational level
which aim to achieve inclusion of immigrants who are long-term residents in the
EU put restrictive state voting rules under pressure.120
On the other hand, with the purpose of emphasizing the link between citizen-
ship and voting rights, several authors have argued that instead of stressing the need
for alien suffrage, citizenship should be made more easily available to third-country
nationals permanently residing in the EU.121 However, the EU currently has no
direct power to grant EU citizenship to third-country nationals,122 and states differ
widely on the matter.123 A tenet of international law is, after all, that the states are
the sole authorities to decide on what basis to grant their nationality,124 and the
ECJ has confirmed that member states enjoy wide autonomy in the field.125 The
variations between EU member states on access to citizenship, however, also
reverberate on the question of voting rights for third-country nationals.126 Once
a third-country national can acquire relatively easily the citizenship of one of the
EU member states—for instance, because nationality is automatically granted as a
consequence of birth in the territory of the state127—he or she obtains EU
117 Kostakopoulou (n 114) 198. 118 See Lardy (n 66) 627; Kochenov (n 70) 228.
119 See Besson and Utzinger (n 115) 580; Kostakopoulou (n 67) 643 ff.
120 See Kochenov (n 70) 229.
121 See Lardy (n 66) 628; Besson and Utzinger (n 115) 581; Kostakopoulou (n 67) 644.
122 See Álvaro Castro Oliveira, “The Position of Resident Third-Country Nationals: Is it too Early
to Grant Them Union Citizenship?” in Massimo La Torre (ed), European Citizenship: An Institutional
Challenge (Kluwer 1998) 185.
123 See text accompanying n 35.
124 See International Court of Justice, Nottebohm (Lichtenstein v. Guatemala), I.C.J. Reports 1955,
p. 4. In the literature, see Rainer Hofmann, “Overview of Nationality and Citizenship in International
Law” in Siofra O’Leary and Teija Tiilikainen (eds), Citizenship and Nationality Status in the New
Europe (Sweet & Maxwell 1998) 5, 7 ff.
125 See Case C-369/90 Micheletti v. Delegacion del Gobierno en Cantabria [1992] ECR I-4258. For
a thorough analysis of the impact of EU law on domestic nationality laws see, however, Gerard René de
Groot, “Towards a European Nationality Law” (2004) 8 Electronic Journal of Comparative Law 3.
126 See Karolina Rostek and Gareth Davies, “The Impact of Union Citizenship on National
Citizenship Policies” (2007) 22 Tulane European and Civil Law Forum 89, 115.
127 The Irish nationality law is a case in point. See text accompanying n 38. The existence (prior to
2004) of an unconditional jus soli rule for the acquisition of nationality generated significant compli-
cations as the alien parents of children born in Ireland (and, thus, Irish and EU citizens) were able to
exercise free movement, as the parents of their children, to other member states and this right was
Challenge 113
citizenship, and with it also the right to free movement and to political participation
in other EU member states, including those with very restrictive rules on access to
citizenship or voting rights.128 In other words, because of the interdependence
between EU member states “Granting national citizenship no longer concerns only
one country, but also affects other members of the [EU].”129 As a result, several
tensions arise in the interaction between states’ regimes defining conditions for
access to the polity and the new rules of EU law that promote territorial inclusive-
ness and cross-border mobility.
In conclusion, the incremental expansion of the regulation of electoral rights at
the supranational level has produced major consequences. While the CPFPL
offered “a template of incremental steps towards enhancing the political participa-
tion rights of non-nationals,”130 the EU added a new layer of complexity131 to the
legal framework of voting rights for non-citizens by recognizing that citizens of each
of the EU member states may vote and stand for local and European Parliament
elections in their country of residence (even) when this is not their country of
nationality. In particular, the development in the EU of a substantive body of law
enfranchising EU citizens who reside in an EU member state of which they are not
nationals has significantly increased the protection of the right to vote for non-
citizens in the European legal space. At the same time, EU law “has given rise to
some inconsistencies and disruptions in national franchise systems.”132 Notably,
while the emergence of a new standard of electoral entitlement at the transnational
level has left untouched those state regimes which were already at the vanguard of
recognition of electoral rights for non-citizens, the legal developments which
occurred within the legal framework of the EU have put under pressure those
state regimes which lagged behind, by tailoring the boundaries of the franchise in a
very restrictive fashion.133
This state of affairs reflects a challenge of inconsistency, as defined in Chapter 1.
A new Europe-wide floor for the protection of voting rights for non-citizens is now
in place thanks to EU law. The establishment of a minimum standard of protection
of voting rights for non-citizens at the transnational level in Europe, inspired by an
open and inclusive concept of the polity, has challenged those national laws and
practices which instead circumscribed access to the suffrage only to resident
protected by the ECJ. See Case C-200/02 Kunqian Catherine Zhu and Man Lavette Chen v Secretary of
State for the Home Department [2004] ECR I-9925.
128 See also Marie-José Garot, “A New Basis for European Citizenship: Residence?” in Massimo La
Torre (ed), European Citizenship: An Institutional Challenge (Kluwer 1998) 229, 232 (emphasizing “the
risk of a certain amount of inequality where the access to Union citizenship derives from a naturaliza-
tion process according to the law of one or another Member State”).
129 Rostek and Davies (n 126) 119.
130 Shaw (n 12) 65.
131 See Edoardo Chiti, “Consequences of Citizenship in Europe: Are New Layers of Complexities
States: Federalism and Constitutional Rights” (2003–04) 152 University of Pennsylvania Law Review
1745 (who uses it describe the “most protective” and “least protective” regimes for the protection of
fundamental rights at the state level in the US federal system of government).
114 The Right to Vote for Non-Citizens
citizens. Historically, the EU member states were sovereign in deciding the bound-
aries of their citizenship and electorates. Yet, the emergence of a substantive body of
law at the supranational level introducing EU citizenship and extending voting
rights to EU citizens residing outside their country of nationality has placed new
limits on member states’ autonomy.134 Whereas “the exclusion of foreign residents
and citizens residing abroad has, until recently in most countries, been regarded as
nearly self-evident and unproblematic . . . electoral rights in Europe have been
significantly extended across both territorial and citizenship boundaries.”135 The
interaction between the new supranational standards and the pre-existing national
ones has, however, produced complex constitutional dynamics, calling into ques-
tion domestic arrangements that, on the one hand, produce asymmetries in the
electoral entitlement of second-country nationals or restrain their freedom to take
full advantage of the voting rights benefits stemming from EU law and, on the
other, fragment the treatment of third-country nationals permanently residing in
the EU or persistently exclude them from the franchise, even at the local level.
134 See also Miriam Aziz, The Impact of European Rights on National Legal Cultures (Hart Publishing
2004) 67.
135 Parliamentary Report (n 46) 19.
136 Christoph Schönberger, “European Citizenship as Federal Citizenship: Some Citizenship
Lessons of Comparative Federalism” (2001) 19 European Review of Public Law 61, 64.
137 See Vincenzo Lippolis, La cittadinanza europea (Il Mulino 1994) 75 and Christoph Schönber-
ger, Unionsbürger, Europas föderales Bürgerrecht in vergleichender Sicht (Mohr Siebeck 2005). See also
Jeremy Bierbach, “Who’s Afraid of Union Citizenship? (book review of Christoph Schönberger,
Unionsbürger, Europas föderales Bürgerrecht in vergleichender Sicht)” (2009) 5 European Constitutional
Law Review 517.
138 See Vicki Jackson, “Citizenship and Federalism” in Alexander Aleinikoff and Douglas Klus-
meyer (eds), Citizenship Today: Global Perspectives and Practices (Carnegie Endowment for Inter-
national Peace 2001) 127.
Comparative assessment 115
between state and federal voting rules and by the competition between a local and a
transnational vision of citizenship and the polity. Whereas in the early phase of the
federation, the constituent states were largely independent in defining who their
peoples were and in regulating access to the franchise (both for state and federal
elections), over time the federal government was granted increasing powers in the
field of electoral rights to remedy perceived shortcomings in the regulation of the
right to vote and to ensure greater consistency, especially in the electoral entitle-
ment of US citizens moving from one US state to another.
From the methodological point of view, therefore, a comparison of the consti-
tutional experience of the US federal system may be particularly useful in order to
understand the dynamics and the developments at play in the field of citizenship
and voting rights in the European multilevel architecture.139 Moreover, the US
constitutional experience can provide some cautionary tales to discuss the possible
scenarios that might open up in the future in the area of non-citizen voting in
Europe.140 However, important caveats must surround this comparative exercise.
Although “In addition to issues of citizenship, federalist systems, such as the United
States and the European Union, face related issues concerning how to determine
state and local residency for purposes of allocating the right to vote,”141 a compari-
son of the regulation of electoral rights for non-citizens in the European multilevel
and the US federal systems should account for the profound differences that exist—
and that are likely to remain—between the two systems. The US experience has
taken place over a much longer period of history, and has been influenced by
specific domestic constitutional concerns. Yet, the purpose of a comparative
approach is precisely to underscore both the similarities and the differences that
exist between legal systems and to draw from the experience of other systems
insights in order to better understand the processes that characterize our legal
regime. In what follows, therefore, I will examine the US constitutional experience
with the purpose of shedding light on the complex constitutional dynamics that
arise when multiple layers of norms on political membership and electoral entitle-
ment interact.142
The US Constitution of 1787 “originally left voting rights, even in federal
elections, in the hands of the states.”143 Consistent with the idea of a republican
139 For a comparison of citizenship, free movement, and social rights in the US and Europe, see
Anna Van der Mei, “Freedom of Movement for Indigents: A Comparative Analysis of American
Constitutional Law and European Community Law” (2002) 19 Arizona Journal of International and
Comparative Law 803; Francesca Strumia, “Citizenship and Free Movement: European and American
Features of a Judicial Formula for Increased Comity” (2006) 12 Columbia Journal of European
Law 713.
140 See generally Ernest Young, “Protecting Member State Autonomy in the European Union:
Some Cautionary Tales from American Federalism” (2002) 77 NYU Law Review 1612.
141 Richard H. Pildes, “Election” in Michel Rosenfeld and András Sajó (eds), The Oxford Handbook
144 See Leslie Friedman Goldstein, Constituting Federal Sovereignty. The European Union in Com-
parative Context (Johns Hopkins UP 2001) and Jeffrey Goldsworthy, “The Debate About Sovereignty
in the United States: A Historical and Comparative Perspective” in Neil Walker (ed), Sovereignty in
Transition (Hart Publishing 2003) 423.
145 See Neuman (n 143) 63.
146 See Virginia Harper-Ho, “Noncitizen Voting Rights: The History, the Law and Current
Prospects for Change” (2000) 18 Law and Inequality 271, 287; Elise Brozovich, “Prospects for
Democratic Change: Non Citizen Suffrage in America” (2002) 23 Hamline Journal of Public Law
and Policy 403, 411.
147 See Earl Maltz, “Citizenship and the Constitution: A History of the Supreme Court’s Alienage
369. Bear in mind that in the US the term “national” refers to the federal level of government.
149 See Gary Simson, “Discrimination Against Nonresidents and the Privileges and Immunities
Clause of Article IV” (1979) 128 University of Pennsylvania Law Review 379.
150 See Schönberger (n 136) 68.
151 See Jamin Raskin, “Legal Aliens, Local Citizens: The Historical, Constitutional and Theoretical
Meanings of Alien Suffrage” (1993) 141 University of Pennsylvania Law Review 1391, 1395.
Comparative assessment 117
participating in elections there.152 On the other hand, in other states voting rights
were even extended by legislative or judicial means to non-US residents (what
would in Europe be called “third-country nationals”).153 As Jamin Raskin argued,
“as a chapter in the history of American federalism, the period of alien suffrage
reflected a conception of states as sovereign political entities. The states with alien
suffrage allowed non-US citizens to participate in voting at all levels of American
government, thereby turning them, explicitly, into ‘citizens’ of the state itself.”154
The original US constitutional arrangement began to reveal its limitations in the
second half of the 19th century in connection with the thorny question of slavery.
Since the 1770s a number of Northern states had granted state citizenship and
voting rights to African-Americans,155 and it had remained largely unsettled
whether the slave-states could challenge the privileges and immunities granted to
freed slaves by free-states.156 In its infamous Dred Scott decision,157 however, the
US Supreme Court destroyed this fragile compromise by stating that “negro[es] of
African descent, . . . who were brought into this country and sold as slaves”158 could
never be part of the US polity. The decision of the Court contributed to the
explosion of the Civil War, which eventually—after the victory of the Union—led
to the abolition of slavery and to the adoption of two constitutional amendments
that profoundly reshaped the relationship between the states and the federal
government in the fields of citizenship and electoral rights.159
The Fourteenth Amendment—by establishing that “all persons born or natu-
ralized in the US . . . are citizens of the US and of the state wherein they reside” and
by prohibiting the states from abridging the privilege and immunities of the citizens
of the US or depriving them of due process and the equal protection of the laws—
“made state citizenship a matter of federal constitutional law, defining it simply as
residence in a state”160 and simultaneously mandated the application of a federal
standard of fundamental rights protection throughout the US.161 The Fifteenth
152 See David Cocanower and David Rich, “Residency Requirement for Voting” (1970) 12 Arizona
(Pa. 1809) 25 (Pennsylvania Supreme Court holding that resident aliens are entitled to vote as a matter
of state law); Spragins v. Houghton, 3 Ill. (2 Scam.) 377, 408 (1840) (Illinois Supreme Court affirming
that the state constitution extended “the right of suffrage to those who, having by habitation and
residence, identified their interests and feelings with the citizenry . . . although they may be neither
native nor adopted citizens”).
154 Raskin (n 151) 1397.
155 See Pamela Karlan, “Ballots and Bullets: The Exceptional History of the Right to Vote” (2003)
the case, the ruling, and its effects, see Paul Finkelman, Dred Scott v. Sandford. A Brief History with
Documents (Bedford/St.Martin’s 1997).
158 Dred Scott (n 157) at 404.
159 Compare Bruce Ackerman, We the People. Vol. 2: Transformations (Harvard UP 1998) and
Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (Yale UP 2000).
160 Peter Schuck, “Citizenship in Federal Systems” (2000) 48 American Journal of Comparative
(Harvard UP 1988).
118 The Right to Vote for Non-Citizens
Amendment—by barring the states from denying or abridging the right to vote of
US citizens on “account of race, color, or previous condition of servitude” and by
granting to Congress the power to enforce the provision by appropriate
legislation—“marked the first time since the constitutional Convention in Phila-
delphia that the national government of the US grappled directly and extensively
with the issues of voting rights.”162 Yet, if the so-called Reconstruction Amend-
ments sanctioned the involvement of the federal government in the field of
electoral rights, they did not effectively prevent many states from continuing to
enforce restrictive electoral laws, disenfranchising large parts of their population
throughout the Jim Crow Era.163 At the same time, in the 1904 case of Pope v.
Williams,164 the US Supreme Court confirmed that the states still enjoyed
autonomy in regulating suffrage of “second-country nationals,” since “the privilege
to vote in a state is within the jurisdiction of the state itself, to be exercised as
the state may direct and upon such terms as to it may seem proper, provided,
of course, no discrimination is made between individuals in violation of the
Federal Constitution.”165 States, moreover, also retained the power to enfranchise
non-US citizens and the US Supreme Court upheld this practice in Minor
v. Happerset:166 “all but ten states allowed non-citizens to vote for at least some
time period before the 20th century.”167 By the 1920s, however, the tradition had
virtually disappeared.168
The tilt “toward the nationalization of the right to vote”169 only occurred in the
US during the 20th century. The Nineteenth, Twenty-Fourth, and Twenty-Sixth
Amendments to the US Constitution successively forbade the states from denying
or abridging the right to vote of US citizens by reason of sex, failure to pay poll
taxes, or age.170 Moreover, in 1965, finally relying on the enforcement powers set
by the Fifteenth Amendment, Congress enacted the Voting Rights Act (VRA)
aiming at ensuring effective participation at the polls for all US citizens.171 The
VRA (originally enacted for five years, but ever since periodically renewed by
162 Alexander Keyssar, The Right to Vote (Basic Books 2000) 94.
163 Since the purpose of this work is to examine the regulation in the US of the right to vote for
non-citizens (“second-country nationals” or “third-country nationals”), I will not address here the
dramatic history of domestic disenfranchisement of African-Americans and other minority groups
who, despite clearly being citizens of the US and of the state in which they resided, were deprived of
their electoral rights at home because of racial motives. It must be acknowledged, however, that the
struggle to solve the problem of African-American disenfranchisement has been the driving force of
voting rights’ reforms in the US. See Lawrence M. Friedman, Law in America (Modern Library
2002) 69.
164 Pope v. Williams, 193 U.S. 621 (1904) (upholding a state law that required a US citizen who
enters the state to make a declaration of his intention of becoming a citizen of the state before he can be
registered as a voter).
165 Pope (n 164) at 632.
166 Minor v. Happerset, 88 U.S. 162 (1874) (affirming that citizenship has not in all cases been
}} 1971 ff. See also Gerald Gunther and Kathleen Sullivan, Constitutional Law (13th ed Foundation
Press 1997) 984.
Comparative assessment 119
172 Peyton McCray, “Bringing Equality to Power: How the Federal Courts Transformed the
means for carrying out the mandate of the XV Am.); Harper v. Virginia Board of Elections, 383
U.S. 663 (1966) (upholding the provision of the VRA 1965 prohibiting polling taxes as a condition
to vote); Katzenbach v. Morgan, 384 U.S. 641 (1966) (upholding the provision of the VRA
prohibiting English-language literacy tests as a condition to vote). On this significant page in the
US Supreme Court’s history, see Alexander Bickel, “The Voting Rights Cases” [1966] Supreme
Court Review 79.
175 See Baker v. Carr, 369 U.S. 186 (1962) (reviewing apportionment of state legislative seats in
Tennessee under the Equal Protection Clause of the XIV Am.); Reynolds v. Sims, 377 U.S. 533 (1964)
(striking down the Alabama district system for the state legislature). For a more recent overview of the
case law of the US Supreme Court in the field of electoral law, see Pamela Karlan, “The Supreme
Court’s Voting Rights Trilogy” [1993] Supreme Court Review 245.
176 Dunn v. Blumstein, 405 U.S. 330 (1972). See also Carrington v. Rush, 380 U.S. 89 (1965)
(striking down a Texas law that prevented members of the military stationed in the state from
establishing residence there for electoral purposes).
177 On the right of interstate travel see the decisions of the US Supreme Court in Edwards
v. California, 314 U.S. 160 (1941) (declaring unconstitutional a Californian law prohibiting the
bringing of non-resident indigent persons into the state) and Shapiro v. Thompson, 349 U.S. 618
(1969) (declaring unconstitutional a Connecticut law reserving welfare benefits only to citizens who
had resided in the state for one year).
178 Dunn (n 176) at 342. 179 Dunn (n 176) at 345.
120 The Right to Vote for Non-Citizens
responsibility”180 in guaranteeing voting rights for US citizens did not directly
benefit aliens (“third-country nationals”) as the power to enfranchise non-US
citizens has remained within the purview of the US states.181 Yet, although recent
trends have highlighted a renewed interest in immigrant suffrage at the local
level,182 the issue of voting rights for non-US citizens was mainly dealt with
indirectly through the adoption by Congress of uniform federal naturalization
rules that facilitate the acquisition of US citizenship—and, with it, of electoral
rights.183 Whereas citizenship in the US has always been ensured for second-
generation immigrants by the application of unconditional jus soli,184 since 1952
the requirements for naturalization have been eased and made non-discriminatory
for all permanent resident aliens.185 On the other hand, the centralization of voting
rights has faced opposing political and judicial pressures inspired by the aim of
returning more authority to the states.186 In a striking demonstration of this
decentralizing trend, in June 2013 the US Supreme Court struck down the
provision of the VRA which singled out those states which were subject to
enhanced federal supervision due to their history of previous discrimination,
holding that the evidence collected by Congress to justify its decision was insuffi-
cient and reflected an understanding of the state of electoral rights at odds with the
changing reality of the nation.187 According to the Supreme Court, “Not only do
States retain sovereignty under the [US] Constitution, there is also a fundamental
principle of equal sovereignty among the States.”188 As the decision of the US
Supreme Court confirms, therefore, even today the tensions between local identity
and voters’ equality characterize the relationship between the states and the federal
government in the field of electoral rights.
the Shifting Scale of Citizenship and Suffrage in the United States” (2005) 9 Space and Polity 113.
183 See Neuman (n 30) 310; Rubio Marin (n 30) 216. See also Peter Schuck, “The Treatment of
Aliens in the United States” in Peter Schuck and Reiner Münz (eds), Paths to Inclusion (Berghahn
Books 1998) 203, 237.
184 Even before the introduction of the US Const. Am. XIV (constitutionalizing the principle that
people born in the US are US citizens). See Weil (n 35) 20. The Supreme Court confirmed that all
persons born in the US are US citizens in United States v. Wong Kim Ark, 169 U.S. 649 (1898)
(denying that the nationality and racial origin of the parents may deprive a child born on US soil from
US citizenship). See Thomas Heller, “Changes and Convergence: Is American Immigration still
Exceptional?” in Atsushi Kondo (ed), Citizenship in a Global World: Comparing Citizenship Rights for
Aliens (Palgrave 2001) 196.
185 See Immigration and Nationality Act, Pub. L. 82–414 (1952), codified as 8 U.S.C. } 1427. In
the literature, see also Peter Schuck, “The Re-Evaluation of American Citizenship” in Christian Joppke
(ed), Challenge to the Nation-State (OUP 1998) 191.
186 See Nathaniel Persily, “The Promise and Pitfalls of the New Voting Rights Act” (2007) 117
189 See Lippolis (n 137) 83–4. 190 See Keyssar (n 162) 282.
191 See Alexander Aleinikoff, “American Citizenship: An Introduction” (2001) 5 Citizenship
Studies 5.
192 See Raskin (n 151) 1419.
193 See Gerald Neuman, “Nationality Law in the United States and Germany: Structure and
Current Problems” in Peter Schuck and Reiner Münz (eds), Paths to Inclusion (Berghahn Books
1998) 247, 254.
122 The Right to Vote for Non-Citizens
states in the field. Yet, in the US after the Reconstruction Amendments, the area of
voting rights was subject to overlapping regulation by the federal and state govern-
ments, as occurred in the EU after 1992. Moreover, both in the US and in Europe,
a challenge of inconsistency has arisen due to the interaction between federal and
state standards in the field of voting rights for non-citizens. The tensions between
the federal promise to ensure greater equality in suffrage throughout the US and the
restrictive voting regulations in force in many states mirror to some extent the
challenges the EU is currently facing, as EU law and its inclusive conception of
the franchise interplays with state regulations, which often constrain the electoral
entitlements of second- and third-country nationals.
Yet, important differences distinguish the historical experience of the US from
that currently existing in Europe. Besides the peculiar link that exists in the US
between electoral reforms and the struggle for African-Americans’ emancipation
and enfranchisement,194 there are structural diversities between the US and the
European systems that can hardly be minimized. For instance, whereas in Europe
member states are still sovereign in defining their nationality laws, the US
Constitution—as the basic text of a newly founded community made up of
immigrants—has since the very beginning given Congress the power to adopt a
uniform naturalization rule: this significantly changed the context in which the
demands for alien suffrage took place, as state differences in the regulation of voting
rights for third-country nationals were compensated for by a single legislative
framework for access to citizenship.195 Moreover, the Reconstruction Amendments
in the US introduced federal norms on the regulation of voting rights but
simultaneously overturned the original constitutional settlement in the field of
citizenship by explicitly making federal citizenship primary and state citizenship
subordinate: this differs from the situation brought about in the EU by the
Maastricht Treaty, where supranational rules on voting rights for EU citizens
were introduced without undermining the primacy of state citizenship.196
As a result, the US voting rights regime has been transformed in ways which are
unknown in Europe. Despite the enactment of the Fourteenth and Fifteenth
Amendments in the 1860s, it was only in the 1960s that Congress and the federal
courts took a decisive step in the field of voting rights. Since then, a much more
consistent framework for the regulation of electoral rights has been in place in the
US: while these transformations did not benefit the right of third-country nationals
to vote, they made sure that the right to vote for US citizens would not be
194 On the struggle for African-American enfranchisement in the South of the US, see Richard
Valelly, The Two Reconstructions (Chicago UP 2004) and the discussion at n 163.
195 See Neuman (n 30) 310 (arguing that the existence of a federal naturalization rule “available as
of right . . . probably explain[s] why so little effort has been made . . . to revive alien suffrage in the
[US].”) Although inferring a direct causality in the social sciences is always difficult, it seems plausible
to argue that the relative ease with which foreigners can become US citizens changes the stakes of alien
suffrage and dilutes some of the tensions that I have instead described as a characteristic feature of the
voting rights regime for third-country nationals in Europe. See also Laurent Gilbert, “National Identity
and Immigration Policy in the US and the European Union” (2008) 14 Columbia Journal of European
Law 99, 138.
196 See Schönberger (n 136).
Recent developments 123
207 See Maria E. Gennusa, “La Cedu e l’Unione Europea” in Marta Cartabia (ed), I diritti in azione
produce long-term effects in the regulation of electoral rights at the EU level which
are capable of affecting the challenge discussed previously in this chapter.
A second line of ECJ case law with potential relevance for the protection of
voting rights for non-citizens deals instead with the status of EU citizenship.215
More than ten years ago the ECJ began to state that EU citizenship “is destined to
be the fundamental status of nationals of the Member States.”216 The Lisbon
Treaty, in addition, has retained an amendment to the definition of EU citizenship,
originally proposed during the Constitutional Convention,217 which could result
in change in this field.218 As already mentioned,219 Articles 9 TEU and 20 TFEU
(replacing ex Art 17 TEC) now state that EU citizenship “shall be additional
to . . . national citizenship”—with the wording “shall be additional to” replacing
“shall complement.” “This seems a very small and cosmetic amendment. It was
however done for a reason and it is submitted that this modification supports a
move towards a more independent Union citizenship.”220 Whereas a complemen-
tary EU citizenship cannot exist in the absence of a national citizenship,221 “if EU
citizenship is additional to national citizenship, then there might one day be EU
citizenship without national citizenship.”222 This innovation has potential rele-
vance for the regulation of electoral rights for EU citizens since an expanded
concept of EU citizenship could be the basis for future decisions by the ECJ
increasing the degree of protection of voting rights for EU citizens resident in
another member state.
A number of very recent judicial pronouncements suggest that the ECJ appears
willing to make use of the status of EU citizenship in order to expand its oversight of
national laws. In Rottmann,223 the ECJ was asked to rule on whether the decision
by the German Land Bayern to deprive the applicant of his nationality, and
215 On the development of the ECJ’s case law in the field of EU citizenship, see Dora Kostako-
poulou, “Ideas, Norms and European Citizenship: Explaining Institutional Change” (2005) 68
Modern Law Review 233; John Mather, “The Court of Justice and the Union Citizen” (2005) 11
European Law Journal 722.
216 See Case C-184/99 Grzelczyk v Centre public d’aide sociale [2001] ECR I-6193, para 31; Case
C-224/98 D’Hoop [2002] ECR I-6191, para 28; Case C-148/02 Garcia Avello [2004] ECR I-11613,
para 22.
217 See Clemens Ladenburger, “Fundamental Rights and Citizenship of the Union” in Giuliano
Amato et al (eds), Genesis and Destiny of the European Constitution (Bruylant 2007) 311, 318.
218 See Annette Schrauwen, “European Union Citizenship in the Treaty of Lisbon: Any Change at
All?” (2008) 15 Maastricht Journal of European and Comparative Law 55, 63. See also Daniel Thym,
“Towards ‘Real’ Citizenship? The Judicial Construction of Union Citizenship and its Limits” in
Maurice Adams et al (eds), Judging Europe’s Judges. The Legitimacy of the Case Law of the European
Court of Justice Examined (Hart Publishing 2013) 155.
219 See n 68. 220 Schrauwen (n 218) 59.
221 See Sabino Cassese, “La cittadinanza europea e le prospettive di sviluppo dell’Europa” [1996]
Rivista italiana di diritto pubblico comunitario 869, 870 and Ana Maria Guerra Martins, “Citi-
zenship of the European Union: Conditions of Citizenship” (2007) 19 European Review of Public
Law 83, 86.
222 Schrauwen (n 218) 60 (emphasis in original).
223 Case C-135/08 Rottmann v. Freistaat Bayern [2010] ECR I-1449.
126 The Right to Vote for Non-Citizens
therefore of his EU citizenship, was compatible with EU law.224 Mr. Rottmann,
was an Austrian-born citizen who subsequently acquired German nationality. After
obtaining the latter, he automatically lost the former. Nevertheless, during the
process of naturalization, in contravention of German law he omitted to inform the
German authorities that he was subject to a criminal investigation in Austria.
When, subsequently, the German authorities discovered this, they adopted an
administrative decision depriving Mr. Rottmann of German nationality on the
basis that it had been obtained by fraud. Mr. Rottmann challenged the German
decision, arguing that it would deprive him of his status of being a EU citizen. The
ECJ found the case admissible, holding that:
the situation of a citizen of the Union who, like the applicant in the main proceedings, is
faced with a decision withdrawing his naturalisation, adopted by the authorities of one
Member State, and placing him, after he has lost the nationality of another Member State
that he originally possessed, in a position capable of causing him to lose the status conferred
by Article 17 [TEC] and the rights attaching thereto falls, by reason of its nature and its
consequences, within the ambit of European Union law.225
As Jo Shaw has argued, “Rottmann opens the way for further potential incursions in
the sphere of nationality sovereignty, as aspects of nationality laws are held up for
scrutiny against the standards inherent in EU law.”226
The most prominent example of the ability of the ECJ to exploit EU citizenship
with the aim of securing broad protection of fundamental rights is offered,
however, by the recent Zambrano judgment.227 The case concerned a Colombian
national who was the father of two children born in Belgium, and who therefore
held Belgian and EU citizenship.228 The Belgian government served Mr. Zam-
brano with an order for expulsion on immigration grounds, which the petitioner
challenged arguing that his expulsion would deprive his children of their rights as
EU citizens, despite the fact that they had never exercised free movement between
Belgium and other EU member states.229 In the case, Advocate General (AG)
Sharpston provided a very detailed and sophisticated motivation to conclude that
the rights connected to the EU citizenship status had to be recognized even for
individuals who had not exercised their free movement rights.230 In a rather short
decision, the ECJ reached a similar conclusion, holding that Article 20 TFEU:
224 For comments on the case, see Hans U. Jessurun d’Oliveira, “Decoupling Nationality and
Union Citizenship” (2011) 7 European Constitutional Law Review 138 and Gerard René de Groot
and Anja Seling, “The Consequences of the Rottmann Judgment on Member States Autonomy”
(2011) 7 European Constitutional Law Review 150.
225 Rottmann (n 223) para 42.
226 Jo Shaw, “Setting the Scene: The Rottmann Case Introduced” in Jo Shaw (ed), “Has the
European Court of Justice Challenged Member States Sovereignty in Nationality Law?,” EUI Working
Paper RSCAS, No. 62, 2011, 4.
227 Case C-34/09 Zambrano, judgment of 8 March 2011, nyr.
228 See text accompanying n 38.
229 For a comment on the case, see Anja Lansbergen and Nina Miller, “European Citizenship
231 Zambrano (n 227) para 42. 232 Zambrano (n 227) para 44.
233 Zambrano (n 227) para 44. 234 Kochenov (n 83) 219.
235 Among the ECJ’s decisions reviewing state measures which burden EU citizens’ freedom of
movement, see Case C-192/95 Tas-Hagen en Tas [2006] ECR I-10451 (declaring contrary to EU free
movement rights a Dutch law which granted a pension to Dutch civilian war victims only if they
resided in the Netherlands); Joined Cases C-11/06 and C-12/06 Morgan [2007] ECR I-9161
(declaring contrary to EU free movement rights a German law which set as a condition for obtaining
an educational grant for studying in another member state that the studies were a continuation of the
educational activity pursued for at least one year in the home member state).
236 See Peter Van Elsuwege, “European Union Citizenship and the Purely Internal Rule Revisited”
provisions do not apply to a citizen who has not exercised free movement rights and has always resided
in the member state of nationality).
238 See, for a more in depth assessment of the decision of the ECJ, Federico Fabbrini, “La Corte di
239 Rottmann (n 223), para 54. Interestingly, in his theoretical assessment of the limits imposed by
the general principles of EU law on the autonomy of member states in the field of nationality laws, de
Groot (n 125) 17 fn 80 had anticipated a Rottmann-like hypothesis and advanced a solution opposite
to that chosen by the ECJ on the understanding that it would be “remarkable that a European citizen
loses this status as a consequence of criminal behaviour, in spite of the fact that he continues to reside
within the territory of the Union.” See also Stephen Hall, “Loss of Union Citizenship in Breach of
Fundamental Rights” (1996) 21 European Law Review 129, 143.
240 See also Dennis-Jonathan Mann and Kai Purnhagen, “The Nature of Union Citizenship
drawbacks [because] while it makes it possible to affect the Member States’ policy vis-à-vis expatriate
enfranchisement, . . . it makes it impossible to introduce Community-wide voting in national elections
in the host Member State”). See also Rubio Marin (n 94) 130.
242 Following the well-known expression of Siofra O’Leary, “Putting Flesh on the Bones of EU
Zambrano held that the member states cannot deprive EU citizens of the substance
of the right conferred by this status, including the right to vote in elections for the
European Parliament. Yet these cases did not compel member states to grant
external voting to non-resident citizens and enfranchise them beyond local and
supranational elections. At the same time, despite Gibraltar and Rottmann, it is still
up to the member states whether to enfranchise third-country nationals and to
decide the requirements for acquiring (and loosing) citizenship. The points of
tension which were described in section 3 as resulting from the overlap and
interplay between multiple standards of electoral rights still remain. The question
now is whether this state of affairs ought to be changed, and how.
244 For an assessment of the problematic recognition of the principle of equality in EU law, see
Dimitry Kochenov, “Citizenship Without Respect: The EU’s Troubled Equality Ideal,” Jean Monnet
Working Paper No. 8, 2010.
245 See Dahl (n 1) 78 (defending the principles of coercion and of all affected interests as the criteria
determining the right to vote); and Bauböck (n 3) 2422 (defending the principle of stakeholding as the
basis for granting voting rights).
246 See also Frank Michelman, “Conceptions of Democracy in American Constitutional Argument:
Voting Rights” (1989) 41 Florida Law Review 443 (contrasting liberal and republican conceptions of
democracy).
130 The Right to Vote for Non-Citizens
become a party to the ECHR and negotiations are currently proceeding to achieve
this result.247 It has been argued that the accession of the EU to the ECHR may
allow disenfranchised citizens to seek a remedy before the ECtHR,248 but the latest
decision by the Grand Chamber of the ECtHR in Sitaropoulos & Giakoumopoulos v.
Greece,249 casts a shadow on the willingness of the ECtHR to subject to strict
scrutiny state laws reducing access to the franchise in the EU. In its decision,
assessing whether the impossibility for Greek expatriates to vote for national
elections was compatible with Article 3 of Protocol 1 ECHR, the ECtHR remarked
how “there are numerous ways of organising and running electoral systems and a
wealth of differences, inter alia, in historical development, cultural diversity and
political thought within Europe which it is for each Contracting State to mould
into its own democratic vision.”250 The ECtHR hence approached the question
“whether Article 3 of Protocol No. 1 places States under an obligation to introduce
a system enabling expatriate citizens to exercise their voting rights from abroad”251
by considering “the relevant international and comparative law . . . [and] the domes-
tic law of the country concerned.”252 After a comprehensive survey of these
transnational sources, however, the ECtHR affirmed that “none of the legal
instruments examined . . . forms a basis for concluding that, as the law currently
stands, States are under an obligation to enable citizens living abroad to exercise the
right to vote,”253 and concluded that “there ha[d] been no breach of [the
ECHR].”254 This ruling suggests that the ECtHR is ready, as long as no clear
consensus exists in the field of voting rights, to leave a wide margin of appreciation
to the member states—hence reducing the potential transformative effects of the
accession of the EU to the ECHR in the area of voting rights.
Rather, what I will suggest in this section is that reforms beyond the Lisbon Treaty
might be needed to achieve greater equality in voting rights for second- and third-
country nationals Europe-wide. De jure condendo, it might be advisable for the
member states and EU institutions to tackle the democratic challenge posed by
the disenfranchisement of non-citizens by devising further changes to the structure
247 The negotiation process on the accession of the EU to the ECHR has been finalized in a Draft
Accession Agreement. Fifth Negotiation Meeting Between the CDDH Ad Hoc Negotiation Group
and the European Commission, Final Report to the CDDH, 5 April 2013, 47 + 1 (2013)008. See also
Council of the European Union, 6–7 June 2013, Doc. 10461/13, p. 15 (indicating that once the ECJ
has had the opportunity to give an opinion on the agreement, the Commission will propose a Council
decision authorizing signature of the agreement). For a comment on the effect of the accession
agreement on the protection of fundamental rights in Europe, see Federico Fabbrini and Joris Larik,
“The Accession of the EU to the ECHR and its Effects” (2014) forthcoming.
248 Andrew Duff, “EU accession to the ECHR requires ensuring the franchise for EU citizens
tary Assembly Resolution 1459 (2005), } 3 (encouraging states to give “due regard . . . to the voting of
citizens living abroad”).
254 Sitaropoulos (n 249) para 81.
Future prospects 131
of EU law.255 In particular, I submit that the most consistent way to protect voting
rights for non-citizens would be by amending the EU Treaties in two directions.
First, to address the challenge generated by the overlap between state and EU
provisions on the enfranchisement of second-country national, residence should
become the basis for the exercise of electoral rights at the national level: a citizen of
one EU member state who resides in another EU member state should have the
right to vote (also) in general elections in the member state of residence. Secondly,
to address the challenge posed to the enfranchisement of third-country nationals,
either a minimum level of harmonization of the national laws on local elections
should be undertaken or the power to make laws on naturalization should be
shifted to the EU: a third-country national should either benefit from voting rights
(at least) at the local level in any EU member state or have the chance to acquire EU
citizenship through a uniform, EU-governed, process.
While EU law has already demanded that member states enfranchise second-
country nationals in local and EU elections, regardless of their nationality, the
member states have retained their power to decide on the additional electoral
entitlements of non-citizens. If this arrangement allowed for the preservation of
state identities, it also “g[a]ve rise to inequalities in democratic representation.”256
As has been explained, the disenfranchisement of non-citizens challenges the
quality of democracy at the state level.257 In the case of EU citizens, however,
limitations on the suffrage also challenge the quality of democracy at EU level:
since the EU Council of Ministers represents the governments of the member
states, each responsible before its national Parliament, the inability to cast a
ballot in national elections reduces the capacity of EU citizens to influence the
decisions of the Council, which is a key (and often exclusive) law-making body
at the EU level.258 This state of affairs represents a democratic challenge which
should be addressed.259 However, because the political process at state level is
skewed by a majoritarian bias, it is unlikely that reform will be achieved in
individual member states.260 In fact, the electoral game at national level is incapable
of internalizing the interests of insular minorities—even more so when those
255 See Ruth Rubio Marin, Immigration as a Democratic Challenge (CUP 2000). See also Massimo
La Torre, “Citizenship, Constitution and the European Union” in Massimo La Torre (ed), European
Citizenship: An Institutional Challenge (Kluwer 1998) 435, 437 (arguing that since the concept of EU
citizenship is “not yet permanent and allows for evolution, an evolutive interpretation of it and even a
de lege ferenda approach are legitimate”).
256 Parliamentary Report (n 46) 16.
257 See Rodriguez (n 3) 30; Rubio Marin (n 94) 117.
258 See Rainer Bauböck, “EU Citizens Should Have Voting Rights in National Elections, but in
which Country?” in Rainer Bauböck et al (eds), “Should EU Citizens Living in Other Member States
Vote There in National Elections?,” EUI Working Paper RSCAS, No. 32, 2012, 3, 4 (stating that free
movers should not “lose their indirect representation in EU legislation through the vote of their
national government in the Council”).
259 See Parliamentary Report (n 46) 17.
260 See Neil Komesar, Imperfect Alternatives: Choosing Institutions in Law, Economics and Public
Policy (Chicago UP 1994) ch 3 (suggesting a comparative institutional analysis and discussing the
problems of majoritarian and minoritarian bias). See also Miguel Poiares Maduro, The European Court
of Justice and the European Economic Constitution (Hart Publishing 1998) (applying these notions in the
context of EU law).
132 The Right to Vote for Non-Citizens
minorities are non-citizens who are not even able to cast a vote in elections.261 As a
result, greater protection for the voting rights of aliens can be achieved only through
action at the EU level, where the power-hold of local majorities is counterbalanced
by the interests of other states and citizens.
In this regard, a comparative analysis of the US constitutional experience provides
food for thought. In the US, over time it became “abundantly clear to both Congress
and the courts that universal suffrage would not be achieved by the decentralized
actions of the fifty states, each with its own historical legacy, its own political
conflicts, its own minorities, and special issues. If the polity was going to be
democratized, it would require action by the [federal] government.”262 Indeed, it
was through the adoption of a series of revisions to the 1787 Constitution263 and
through the incremental involvement of the federal government in those domains—
citizenship and electoral law—that were originally believed to be the states’ preroga-
tive that the challenge of voting rights was historically addressed in the US.264 On the
other hand, within the federal government—notwithstanding the key role that courts
have played, especially since the 1960s, in ensuring the exercise of the right to
vote265—it has been the political branches of government which have led the efforts
in the promotion of electoral rights.266 Indeed, for long periods in US history “the
voteless fared much better appealing to the people and to the legislative, as opposed to
the judicial, process. The Supreme Court gave us Dred Scott . . . but Congress and
two-thirds of the states gave us the Fifteenth Amendment and women’s suffrage.”267
Otherwise, as was made clear in the recent decision of the US Supreme Court in
Shelby County v. Holder, where the decision of Congress to renew the pre-clearance
requirement of the VRA was struck down as irrational, concerns for consistent
protection of electoral rights may be running stronger in the legislature than in the
courts.268
Correspondingly, in designing proposals for reform of the European multilevel
system, emphasis will be placed on the potential role of supranational institutions:
the inconsistencies in the field of electoral law for non-citizens and the fragmented
answers of the member states suggest that coherent action can be taken only at EU
level.269 Otherwise, although the role of the ECJ should not be diminished, it will
be claimed that the EU’s pouvoir constituant should be directly at the forefront of
261 See Bruce Ackerman, “Beyond Carlone Products” (1985) 98 Harvard Law Review 713 (discuss-
(defending judicial review as instrumental to the effective well-functioning of the political process).
266 See Keyssar (n 162) 166; Neuman (n 30) 334. 267 Raskin (n 151) 1440.
268 See also John Paul Stevens, “The Court and the Right to Vote: A Dissent” (2013) 60 New York
principle of subsidiarity, and the advantages of coordinated action at EU level, but affirming that
“the impetus for change seems more likely to come from the national level rather than the EU
level”).
Future prospects 133
270 See also Augustin José Menéndez, “The European Democratic Challenge: The Forging of a
on residence and emphasizing how already “in the American Declarations of Rights, we find that the
fundamental justification of citizenship is a common concern in the commonwealth as instantiated by
permanent residence”) (emphasis in original).
279 See text accompanying n 176.
134 The Right to Vote for Non-Citizens
affecting voting rights for EU citizens resident in another EU country would be
overcome. EU citizens residing in another EU member state would not risk being
deprived of the opportunity to express their voice in the choice of national
legislature in cases where their home country denies expatriate voting: instead,
they would be entitled to full political participation anywhere in the EU, no matter
what their national origin is.
These ideas have recently been embraced in a proposal for a European Citizens’
Initiative (ECI) “To strengthen the rights listed in article 20(2) TFEU by granting
EU citizens residing in another Member State the right to vote in all political
elections in their country of residence, on the same conditions as the nationals of
that State.”280 Pursuant to the new Article 11(4) TEU and its implementing
regulation,281 no less than one million EU citizens from at least seven EU member
states can take the initiative “of inviting the European Commission, within the
framework of its powers, to submit any appropriate proposal on matters where
citizens consider that a legal act of the Union is required for the purpose of
implementing the Treaties.” In advancing an ECI to allow voting rights at the
national level for second-country nationals in their EU member state of residence,
the proponents of the ECI sought to prompt the Commission to implement Article
25 TFEU, which allows for the possibility of extending the rights of EU citizens
listed in Article 20(2) TFEU.282 In the view of the proponents, the goal of the ECI
is to develop the political dimension of the European project by reinforcing citizens’
awareness that they share a common destiny and—according to its sponsors—
would have the following effects: “To enhance the concept of European Citizen-
ship; To facilitate freedom of movement within the EU; In addition, it could
contribute to remedying the loss of voting rights presently experienced by a
significant number of EU citizens who are long-term residents of other Member
States.”283
The proposal of the ECI moves in the direction outlined in this chapter to
address inequalities in the electoral entitlements of EU citizens by empowering
them to vote in all elections in the EU member state in which they reside.284 At the
same time, while exploiting the potentials of a bottom-up instrument such as the
ECI, the proposal would essentially lead to a simplified amendment to the EU
Treaties. Under Article 25 TFEU, in fact, any decision to strengthen or add to the
rights listed in Article 20(2) TFEU must be adopted by “the Council, acting
unanimously in accordance with a special legislative procedure and after obtaining
the consent of the European Parliament . . . [and] shall enter into force after the[]
ongoing/details/2013/000003/en>.
281 See Regulation of the European Parliament and the Council 211/2011/EU, OJ 2011 L 65/1.
282 See Philippe Cayala and Catriona Seth, “Concluding Remarks: Righting Democratic Wrongs”
in Rainer Bauböck et al (eds), “Should EU Citizens Living in Other Member States Vote There in
National Elections?,” EUI Working Paper RSCAS, No. 32, 2012, 41.
283 See n 280.
284 The ECI was registered by the European Commission on 28 January 2013 as ECI(2013)
000003. To be valid, the ECI must collect at least 1 million votes throughout the EU by 28 January
2014.
Future prospects 135
285 For a commentary on the regulation of the ECI, as formulated in the Constitutional Treaty, see
Andreas Auer, “The European Citizens Initiative” (2005) 1 European Constitutional Law Review 79.
286 Cayala and Seth (n 282) 41.
287 See Hannes Swoboda, “Don’t start with Europeans first. An initiative for extending voting
rights should also promote access to citizenship for third country nationals” in Rainer Bauböck et al
(eds), “Should EU Citizens Living in Other Member States Vote There in National Elections?,” EUI
Working Paper RSCAS, No. 32, 2012, 23.
288 For support see also Lardy (n 66) 627; Rubio Marin (n 30) 222; Besson and Utzinger (n 115)
580; Shaw (n 12) 236; Kochenov (n 70) 228–9. See also Mark Bell, “Civic Citizenship and Migrant
Integration” (2007) 13 European Public Law 311.
289 For support see also Lardy (n 66) 628; Besson and Utzinger (n 115) 581; Kostakopoulou (n 67)
644; Kochenov (n 40) 227. See also Castro Oliveira (n 122) 196 (explaining that this solution would
imply separating EU citizenship from state citizenship and making acquisition of the former a priority
for long-term resident third-country nationals).
290 Granting voting rights as an alternative to naturalization should be provided especially in the
Peter Spiro, “Dual Citizenship as Human Rights” (2010) 8 International Journal of Constitutional
Law 111.
291 For an articulate defense of the extension of voting rights to third-country nationals also for the
European Parliament, see Annette Schrauwen, “Granting the Right to Vote for the European
Parliament to Resident Third-Country Nationals: Civic Citizenship Revisited” (2013) 19 European
Law Journal 201 (arguing that an extension of voting rights to non-EU citizens could be achieved
within the framework of Art 223 TFEU, without the need for further Treaty amendment).
292 See Schuck (n 183) 234; Neuman (n 193) 251.
293 See, however, Joel Fetzer, “The Evolution of Public Attitude Toward Immigration in Europe
and the United States, 2000–2010,” Robert Schuman Center for Advanced Studies—Migration Policy
Institute Working Paper, 2011 (documenting trends in anti-immigration opinion in the EU and the
US).
294 See Mersiha Nezic, “Des Britanniques expatriés veulent en finir avec la restriction de leur droit
de vote,” Le Monde, 15 April 2010 (discussing complaints by British citizens resident in France of their
inability to vote in general elections); Francesco Gravetti, “ ‘L’Italia sono anch’io’: 200 mila firme per
dare il voto agli immigrati,” Il Corriere della Sera, 6 March 2012 (discussing a legislative proposal
presented pursuant to the national citizens legislative initiative to grant voting rights for third-country
nationals at the local level).
295 See also Kochenov (n 83) 202; Besson and Utzinger (n 115) 590; Shaw (n 12) 232. See also Jorg
Monar, “A Dual Citizenship in the Making: The Citizenship of the European Union and its Reform”
in Massimo La Torre (ed), European Citizenship: An Institutional Challenge (Kluwer 1998) 167, 183
(arguing that “there is little indication so far that the Member States are willing to go significantly
beyond the status quo in the area of democratic participation. . . . Yet some progress on the Citizenship
of the Union is clearly needed”).
296 For a reflection on the European political ethos and its legitimacy, see Miguel Poiares Maduro,
“The Importance of Being Called a Constitution: Constitutional Authority and the Authority of
Constitutionalism” (2005) 3 International Journal of Constitutional Law 332 and Mattias Kumm,
Future prospects 137
of the purpose of the European integration project and the choice between them
will determine which path the EU voting rights regime will follow.297 One vision
considers the European project exclusively as an international arrangement of
limited scope. For those who agree with this view, there are valuable arguments
in sacrificing further consistency in the regulation of electoral rights for non-citizens
on the shrine of national sovereignty and identity. Another vision, on the contrary,
conceives the ultimate goal of the European experiment to be the creation of a
borderless polity in which EU citizens can enjoy equal rights. Those who support
this alternative idea regard it, for instance, as “arguably wholly inconsistent for the
EU and the Member States to [enfranchise, EU citizens] in relation to local and
European [elections] whilst ignoring the impact upon democratic participation in
national elections.”298 In this view, in fact, “eligibility to vote and stand as
candidates at the national elections in the Member State of residence . . . should
logically be the ultimate goal of the development of European citizenship.”299 Since
these visions are based on conflicting understandings of the finality of European
integration, the remedies that they advance to manage the challenge of inconsist-
ency in the field of citizenship and electoral rights shape opposite prospects for the
future of states’ identities and voters’ equality in the European system of trans-
national governance.
In conclusion, this section has suggested that a number of further reforms would
be needed, beyond the Lisbon Treaty, to address the democratic challenge posed by
non-citizens’ disenfranchisement in the EU. In the European multi-layered human
rights system, state identities still heavily influence the rules on access to the ballot
box. Yet, in the field of elections and democratic participation, there are strong
normative arguments for ensuring to the greatest extent possible equality in
suffrage. Moreover, in light of a comparative institutional analysis of the US
constitutional experience, it appears that the EU is in a relatively better position
than the member states to address this democratic challenge appropriately. For this
reason, the section has proposed additional amendments to the EU Treaties
aimed at strengthening the electoral entitlements of non-citizens in the EU, by
empowering second-country nationals to vote in every election (including national
elections) in the member state in which they reside and third-country nationals to
vote in local elections in all EU countries—or, alternatively, to become EU citizens
through a uniform EU-based naturalization process. While the first proposal is now
“To Be a European Citizen? The Absence of Constitutional Patriotism and the Constitutional Treaty”
(2005) 11 Columbia Journal of European Law 481.
297 For a discussion of the competing visions of the European integration project, see Robert Howse
and Kalypso Nicolaïdis, “Introduction: The Federal Vision, Levels of Governance and Legitimacy” in
Robert Howse and Kalypso Nicolaïdis (eds), The Federal Vision: Legitimacy and Levels of Governance in
the United States and the European Union (OUP 2001) 1. On the importance that the emergence of the
self-conception of being “one nation” (rather than simply “a states’ compact”) has played in the US in
developing a political-constitutional identity, see Michel Rosenfeld, “The European Treaty-Constitu-
tion and Constitutional Identity: A View From America” (2005) 3 International Journal of Consti-
tutional Law 316.
298 Shaw (n 12) 195 (emphasis in original). 299 Kochenov (n 70) 201.
138 The Right to Vote for Non-Citizens
also the object of an ambitious ECI, the section has underlined the difficulties that
any initiative aimed at expanding voting rights for non-citizens would face in Europe
today. The success of any reform of the EU electoral rights regime, in fact, remains
inextricably linked to the future political prospects of the EU. As an early observer
of the US constitutional system noted, however, “there is no more invariable rule in
the history of society: the further electoral rights are extended the greater is the need for
extending them: for after each concession the strength of democracy increases and its
demands increases with its strength.”300 The choice for proponents of the extension
of the suffrage is to challenge state identitarian oppositions by advancing arguments
for greater democracy and equality in voting rights throughout the EU polity.
7. Conclusion
This chapter has analyzed the regulation of electoral rights for non-citizens in the
European multilevel human rights architecture. Its purpose has been to examine
the constitutional dynamics that emerge in the field of electoral rights for non-
citizens from the complex interaction between national and transnational law in
Europe, in comparative perspective with the US federal experience. The chapter has
argued that the overlap and the interplay between domestic and supranational law
has produced a challenge of inconsistency. In section 2, a summary review of
national laws regulating voting rights for non-citizens revealed the existence of
significant horizontal differences between the EU member states on the issue
of alien suffrage. Whereas some countries have adopted a broad conception of
the franchise, extending voting rights to non-citizens even in national elections, in
other member states an extremely restrictive approach has traditionally prevailed,
preventing any extension of the suffrage to aliens. At the same time, wide variations
exist between the member states on the rules for access to citizenship, often
interacting in intricate ways with national franchise laws.
As underlined in section 3, despite these differences between the EU countries,
since the 1990s member states have lost full sovereignty on the issue of electoral
rights for non-citizens as a consequence of the growing impact of supranational law.
While the CPFPL has enhanced the right of political participation for third-country
nationals at the local level, the EU Treaties have established a right for second-
country nationals who permanently reside in another EU member state to vote in
local and EU elections in their member state of residence. The emergence of a
transnational substantive body of law extending the boundaries of the franchise,
especially at the EU level, has created tensions with national voting rights regimes,
notably by placing under strain those domestic laws and practices constraining
the electoral entitlements of second-country nationals or disenfranchising third-
country nationals tout court. By setting a floor for the protection of the right to vote
for non-citizens at the supranational level inspired by an inclusive conception of
political participation, EU law has called into question domestic arrangements that
fall under the transnational minimum, while leaving unaffected states with even
more advanced standards for aliens’ suffrage.
Section 4 underlined how the complex constitutional dynamics nowadays at play
in the European multilevel human rights architecture can be compared with the
federal experience of the US. In the original US constitutional arrangement,
competence on electoral rights for non-citizens was reserved to the states, which
had widely diverging laws both on the enfranchisement of citizens of other US
states and of non-US aliens. Through a series of constitutional, legislative, and
judicial reforms, however, the federal government gradually acquired powers in
the regulation of voting rights. For almost a century—between the First Recon-
struction of the 1860s and the Second Reconstruction of the 1960s—tensions
occurred in the fabric of voting rights in the US because of the interplay between
federal rules, premised on an open conception of the franchise, and state laws,
often restricting access to the suffrage. Ultimately, during the Civil Rights Era
important measures were taken to ensure that US citizens moving from one US
state to another could enjoy voting rights for all elections in the state in which
they resided. The power to extend voting rights to third-country nationals,
instead, still today belongs to the states, but the federal government has been
empowered since the Founding to enact a general naturalization Act that allows
aliens to become US citizens, and acquire electoral rights, by following a uniform
procedure.
In light of the US example, section 5 examined a number of recent decisions by
the ECJ dealing with electoral rights and EU citizenship to assess whether they
open up new prospects for a more consistent protection of non-citizen voting rights
in the EU. In cases such as Zambrano and Aruba, the ECJ made clear that the status
of EU citizenship has a substance, which includes the right to vote for the European
Parliament; and in cases such as Gibraltar the ECJ signaled its openness toward
the extension of electoral rights to the European Parliament to third-country
nationals. Drawing on these lines of case law, several scholars have demanded
greater scrutiny by the ECJ of state electoral laws. Nevertheless, it was explained
that the case law of the ECJ must be taken with some caveats, which qualify its
capacity to bring about fundamental change in the interaction between EU and
national voting rules. Because the EU Treaties set several boundaries for the scope
of EU voting rights, and maintain the priority of state citizenship over EU
citizenship, it was argued that the potential of the ECJ to push for further reforms,
while not negligible, is limited. Yet, section 6 emphasized how further legal reforms
would be needed to assuage the discriminations that affect access to the franchise
for non-citizens across Europe.
As a result of the overlap and interplay between multiple domestic and supra-
national standards, the same mobile second-or third-country-national may be
subject to totally different bundles of electoral rights, depending on the state to
which they go, and the state from which they come from. In the field of electoral
rights, however, there are strong normative claims in favor of securing equality in
access to the suffrage. For this reason, it was conclusively suggested that several
140 The Right to Vote for Non-Citizens
additional amendments to the EU Treaties would be advisable in order to address
the democratic challenge that discriminations in non-citizen voting produces at the
national and supranational level in Europe. To this end, a proposal was sketched
to amend the EU Treaties to extend to national elections the right to vote of
second-country nationals residing in another EU member state and to enfranchise
in local elections third-country nationals who are long-term residents in the EU—
or, alternatively, to allow them to obtain EU citizenship through a uniform
EU-based naturalization process. While noting how similar ideas have now been
embraced in an innovative ECI, the difficulties of achieving a more consistent
enfranchisement of non-citizens in the EU were also stressed. In the field of voting
rights for non-citizens, whether the challenge of inconsistency produced by the
overlap between state and supranational rules will be resolved more to the benefit
of voters’ equality ultimately depends on the future prospects of the process of
political integration in Europe.
4
The Right to Strike
1. Introduction
In a celebrated chapter of the Integration Through Law series, Mauro Cappelletti
and David Golay explained how, both in the United States (US) and in the then
European Communities (EC)—now the European Union (EU)—the federal/
supranational judiciary played a major role in the creation of a free common
market.1 In another chapter of the same volume it was also emphasized how:
free trade and judicial review appear to be natural allies in federal systems of government,
just as the reality of judicial review tends to be associated with federalism. Judicial review, as
the American and European Founders realized, is potentially a powerful tool in the creation
of any integrated economy. It seems uniquely capable of filling in the gaps of a constitution
whose ostensible purpose is to break down trade barriers among states.2
For more than 20 years since these words were written, the EU Court of Justice
(ECJ) has continued contributing to fostering economic integration in Europe.3
Nevertheless, increasingly in the last few years, the free market jurisprudence of the
ECJ has come under scrutiny for the significant challenges that it poses to the
protection of social and labor rights at the state level.4 Although the ECJ has
committed itself to protecting social rights,5 its case law has been criticized for
striking an inadequate balance between economic freedoms and labor rights and for
undermining the protection that workers enjoy within the legal systems of several
EU member states.6
1 Mauro Cappelletti and David Golay, “The Judicial Branch in the Federal and Transnational
Union: Its Impact on Integration” in Mauro Cappelletti et al (eds), Integration through Law: Europe
and the American Federal Experience. Vol. 1, Book 2 (de Gruyter 1986) 261.
2 Donald Kommers and Michael Waelbroeck, “Legal Integration and Free Movement of Goods:
The American and European Experience” in Mauro Cappelletti et al (eds), Integration through Law:
Europe and the American Federal Experience. Vol. 1, Book 3 (de Gruyter 1986) 165, 168.
3 See Miguel Poiares Maduro, We the Court: The European Court of Justice and the European
Ideal and the Conditions for its Realization” (2008) 45 Common Market Law Review 1335.
6 See Tonia Novitz, “The Impact of Viking and Laval. Contesting the Social Function and Legal
Regulation of the Right to Strike” in Edoardo Ales and Tonia Novitz (eds), Collective Action and
Fundamental Freedoms in Europe: Striking the Balance (Intersentia 2010) 251.
142 The Right to Strike
The purpose of this chapter is to analyze the complex interaction between free
market principles and guarantees for the protection of the right to strike in Europe,
in comparative perspective with the federal system of the US.7 In particular, the
chapter explores the tensions that arise from the overlap and interplay between state
and EU standards for the protection of the right to strike and its possible develop-
ments.8 As I argue, EU member states have traditionally devised diverse regimes for
the protection of the right to strike. The emergence of a judge-made standard for
the protection of the right to strike at the EU level has, however, significantly
challenged national regulations in the field, highlighting points of friction between
the conceptions of industrial action permitted at the supranational and domestic
levels. Recently, the ECJ acknowledged the existence of a fundamental right to
strike at the EU level.9 Yet, the ECJ has balanced the right to strike with the need to
ensure a free market throughout Europe in which commerce can flow unhindered.
This has led to a more restrictive standard for the protection of the right to strike at
EU level than that of many EU member states. Due to the growing impact of EU
law in the regulation of the right to strike, the effectiveness of the protection of
collective labor rights in a significant number of EU member states has been
challenged.
As this chapter claims, the difficulties that Europe is currently experiencing in
protecting collective labor rights are not sui generis. A comparative perspective
reveals that tensions between competing fundamental rights standards are a recur-
rent feature of federal arrangements premised on the establishment of a free market.
Hence, dynamics analogous to those at play in Europe have also historically
characterized the US because of the interplay between state and federal law. In
the early 20th century, industrial action in the US was entirely regulated at state
level as the federal government lacked regulatory powers in the area of welfare.
Nevertheless, federal courts scrutinized collective action for compliance with federal
principles of freedom of commerce and antitrust. Although the Supreme Court
ruled that the US Constitution protected a right to strike, it placed serious
restrictions on the effective exercise of that right. This state of affairs changed
dramatically during the New Deal when, in the effort to address an unprecedented
economic crisis, the federal government embraced new powers in the field of labor
7 Note that in this chapter I will use the terms “strike,” “collective action,” and “industrial action”
state law, EU law, and the ECHR and will not consider the international legal instruments of the
International Labour Organization (ILO). This is not to deny the substantive relevance of ILO
provisions in the protection of the right to strike; in fact, as will be seen later in the chapter, both
the ECJ and the ECtHR have acknowledged the importance of ILO instruments and used them as a
source of inspiration in their case law on the right to strike. The focus in this chapter on the
“constitutional” instruments for the protection of the right to strike in Europe is, however, consistent
with the constitutional law approach I use in the book and with the goal of developing a comparison
with the constitutional system of the US. On the international protection of labor rights, see Philip
Alston (ed), Labour Rights as Human Rights (OUP 2005).
9 See Case C-438/05 Viking [2007] ECR I-10779; Case C-341/05 Laval [2007] ECR I-11767.
Introduction 143
legislation. A major piece of the New Deal puzzle was represented by the Wagner
Act,10 a statute which overhauled the regulation of industrial relations by setting a
federal standard for the protection of the right to strike. Technically drafted as an
instrument to foster interstate commerce, the Wagner Act was a successful attempt
to address the tensions resulting from state labor laws and federal free market
principles. Although subsequently weakened by congressional amendments and
judicial constructions, the Wagner Act originally struck a revolutionary balance
between social rights and the free market in the US, introducing a legislative
standard for the protection of industrial action at the federal level.
In light of the comparative examination of the US experience in the field of strike
law, this chapter examines whether, and how, the challenge taking place in the
European multilevel system could be addressed. To this end, I consider the most
recent transformations taking place within the framework of the European Con-
vention on Human Rights (ECHR). In two milestone decisions, the European
Court of Human Rights (ECtHR) recently recognized that collective bargaining
and collective action are fundamental rights protected under the ECHR.11 This
development in the case law of the ECtHR, coupled with the entry into force of the
Lisbon Treaty in 2009, may represent a major force for change in the protection of
the right to strike at the supranational level in Europe. The Lisbon Treaty, in fact,
established an obligation for the EU to accede to the ECHR and, once accession is
completed, EU institutions will be subject to review by the ECtHR. This may
incentivize the ECJ to revise its right to strike jurisprudence in a way that is more
protective of labor rights along the lines drawn by the ECtHR. Yet, a number of
uncertainties surround the effect of the accession agreement and it is difficult to
predict whether the transformations taking place in the ECHR will offer a com-
pletely satisfactory answer to the challenge of ineffectiveness that currently charac-
terizes the field of labor law governing the right to strike.
As a consequence, the chapter explores what additional developments at the EU
level might be advisable if Europe intends to address the dilemma of how to balance
free market rules and social rights guarantees in a more legitimate way.12 To this
end, I also discuss the March 2012 Commission proposal for a regulation on the
exercise of the right to strike in the single market and its subsequent unfortunate
withdrawal.13 The decisions of the ECJ have made clear that, in a free market of
continental size, labor protection at the domestic level cannot be insulated from
review by the supranational judiciary. Yet, a lesson that emerges from the analysis of
the US constitutional experience is that the tension between transnational free
10 National Labor Relations Act, 49 Stat. 452 (1937), codified as amended at 29 U.S.C. }} 151–69.
11 See Demir & Baykara v. Turkey (No. 2), ECHR [2008] App. No. 34503/97 (GC); Enerji Yapi-
Yol Sen v. Turkey, ECHR [2009] App. No. 68959/01.
12 On the difficulties of balancing fundamental social rights and free market principles in the EU
system of governance and for proposals on how to frame the debate on possible reforms in this field, see
also Miguel Poiares Maduro, “Europe’s Social Self: ‘The Sickness unto Death’ ” in Jo Shaw (ed), Social
Law and Policy in an Evolving European Union (Hart Publishing 2000); Stefano Giubboni, Social Rights
and Market Freedom in the European Constitution. A Labour Law Perspective (CUP 2006).
13 COM(2012) 130 final.
144 The Right to Strike
market principles and state social rights guarantees can be addressed by enacting
legislation protecting labor rights at the supranational level. The Commission
proposal acknowledged this state of affairs and recommended setting up a
framework—albeit one in need of perfecting—to reconcile the supremacy of EU
law with the need to protect the right to strike in transnational labor disputes.
However, reflecting the important differences in the law-making process in the EU
and the US, the Commission proposal eventually derailed under political oppos-
ition. If the fate of the Commission proposal reveals the difficulties of balancing the
laissez-faire trends inherent in an interstate common market, it also underlines the
need to continue searching for a way to assuage the tensions between state and
supranational standards in the field of labor law governing the right to strike.
The chapter is structured as follows. Section 2 outlines the national regimes for
the protection of the right to strike in Europe, identifying the main regulatory
models and the relevant differences that exist between member states in the
protection of industrial action. Section 3 highlights the growing impact of EU
law on the regulation of collective action and analyzes the critical implications of
the case law of the ECJ. The ECJ has recognized a fundamental right to strike at the
EU level but has subjected it to significant limitations in the name of free market
principles, thereby placing the protection of industrial action existing in many
domestic regulatory models under strain. Section 4 undertakes a comparative
examination of the US federal experience in the field of labor law governing the
right to strike and emphasizes how the US constitutional system has been histori-
cally characterized by friction between state labor laws and the federal push to
ensure a free common market. At the same time it explains how the US has
addressed this situation over time by shifting the protection of strike action at the
federal level via the enactment of New Deal legislation. The study then returns to
the current European situation and, in section 5 it assesses the effect of the recent
transformations taking place within the framework of the ECHR. Here it examines
the recent case law of the ECtHR and discusses how it could influence the
protection of the right to strike at the EU level after the accession of the EU to
the ECHR. Finally, section 6 reflects on how legislative reforms may be envisaged
in the constitutional system of the EU to strengthen the protection of industrial
action vis-à-vis free market principles and how the US experience can inform
responses to the challenge the EU is currently facing.
A preliminary caveat is in order: it should be pointed out that this chapter adopts
a comparative constitutional law perspective and not a comparative labor law
perspective. The right to strike is a labor law right, and many of the most inspiring
sources that I will be using in my analysis are the work of labor lawyers. However,
my intention here is to offer a different perspective on the status of industrial
relations law in Europe and in the US, one which focuses on the constitutional
dynamics at play in the two systems and aims to explain the challenges that emerge
from the interaction between state and supranational laws in multilevel constitu-
tional arrangements. Readers will therefore forgive me if technical features of
national or supranational collective labor regulations are omitted or over-generalized.
In this chapter I will, rather, attempt to explain how the complex tensions that are
Context 145
emerging in the field of collective labor rights in Europe are part of a broader
constitutional pattern. As explained in Chapter 1, the European multilevel human
rights architecture is subject to a number of synchronic challenges and diachronic
transformations, due to the overlap and interplay between multiple human rights
standards. Labor law, and specifically the protection of the right to strike, appears to
be subject to the same dynamics.
14 Antoine Jacobs, “Collective Self-Regulation” in Bob Hepple (ed), The Making of Labour Law in
Europe: A Comparative Study of Nine Countries up to 1945 (Hart Publishing 1986) 193.
15 Antoine Jacobs, “Collective Labour Relations” in Bob Hepple and Bruno Veneziani (eds), The
Tranformations of Labour Law in Europe: A Comparative Study of Fifteen Countries 1945–2004 (Hart
Publishing 2009) 201.
16 See text accompanying nn 72–96. 17 See text accompanying nn 55–65.
18 Karl Abelshausen et al, “Belgium” in Arabella Stewart and Mark Bell (eds), The Right to Strike:
Decreto-Ley 17/1977, de 4 de marzo 1977 (Sp.) which was, however, enacted prior to the adoption of
the Constitution. The Act was later re-interpreted in an important judgment by the Tribunal
Constitucional which made it compatible with the new Constitution. See STC Sentencia 11/1981.
See also Joaquín García Murcia et al (eds), Legislación histórica sobre huelga y conflict colectivo de trabajo
(Thomson Reuters 2011).
20 See Art 57, Const. Port. 21 See Jacobs (n 15) 201.
22 HR 30 May 1986, NJ 1986, 688. For an assessment of the Dutch regulation governing strikes,
see Sarah Rook et al, “The Netherlands” in Arabella Stewart and Mark Bell (eds), The Right to Strike:
A Comparative Perspective (The Institute of Employment Rights 2008) 80 (explaining that protection
of the right to strike under Dutch law is based on the recognition that Art 6 of the European Social
Charter, which protects a right to strike, has direct application in the Netherlands).
146 The Right to Strike
constitutionally protected in Poland23 and other Central and Eastern European
countries only after the collapse of the Communist regime in the early 1990s.24
The historical experience of each European country has largely shaped the way in
which the right to strike is protected at national level.25 Hence, a broad constitu-
tional protection of the right to strike is quite common in the new democracies of
Southern and Eastern Europe—largely in reaction to the repressive practices of the
fascist and communist regimes.26 Northern European states, instead, often protect
the right to strike exclusively through ordinary legislation and subject it to more
severe restrictions. At the same time, the nature of the social and political forces
prevailing in each Western European country in the post-World War II period
explains the major regional variations. For instance, Western democracies that
had powerful Communist parties (such as Italy and France) codified the right to
strike in an attempt to strengthen the role of the labor movement and to enshrine
new principles of social justice in their constitutions.27 This need was less
compelling where the labor movement was integrated within the political process
(as in the UK) or where a tradition of social partnership already existed (as in
Scandinavia).
Although there are relevant differences in the degree of protection the right to
strike enjoys in the legal systems of the EU member states, it may be useful for
analytical purposes to classify the various national regimes into several regulatory
models. Many classifications of the European legislations are possible in the
abstract,28 but for this work I will identify four models of protection of the right
to strike that can be ideally placed along a continuum that runs from more liberal to
more restrictive regimes. To evaluate the nature of each model, I consider several
specific criteria. A first element is whether the right to strike is recognized as a
fundamental constitutional right rather than a statutory entitlement or a simple
common law liberty. A second element is whether the right to strike is an individual
right or a collective right, to be exercised only by trade unions. Another element
concerns the procedures that must be followed to exercise the right to strike, as well
as the limitations that apply to the right to strike and the substantive conditions for
necessary in our times, the following political, economic and social principles”); Art 3(2) Const. It.
(stating that it is the duty of the Republic “to remove the social and economic obstancle that, by
limiting de facto the liberty and equality among citizens, prevent the full development of the human
person and the effective participation of all workers to the political, economic and social organization of
the Country”).
28 See Arabella Stewart, “A Comparative Perspective on the Right to Strike” in Arabella Stewart and
Mark Bell (eds), The Right to Strike: A Comparative Perspective (The Institute of Employment Rights
2008) 5; Wiebke Warnek, Strike Rules in the EU27 and Beyond. A Comparative Overview (European
Trade Union Institute for Research, Education and Health and Safety 2007).
Context 147
justifying it. A final element concerns the consequences of exercising the right to
strike, that is, the implications of strike action on individual employment contracts.
France and Italy offer a first model of regulation characterized by enhanced
protection of the right to strike. The Preamble to the French Constitution of 1946
(which is recalled by the Preamble to the Constitution of 1958) recognizes “the
right to strike . . . within the framework of the laws that regulate it” and, with almost
identical wording, Article 40 of the 1948 Italian Constitution affirms that “the
right to strike is exercised within the framework of the laws that regulate it.” In both
legal systems, the right to strike has a solid constitutional foundation and can be
counted as a fundamental right of the individual to be exercised collectively (and
not as a right of the trade unions).29 Moreover, both in France and in Italy, the
constitutional provisions on the right to strike have not been implemented through
ordinary legislation (except in the field of public services):30 domestic courts have
therefore assumed the task of giving direct application to these constitutional
clauses and of defining the scope and the limits of the right to strike. As such, in
France the Cour de Cassation has strictly enforced the constitutional guarantee of
the right to strike, excluding that it can be restricted by collective agreement or an
obligation to maintain industrial peace.31 According to the case law of the French
labor courts, a strike must express a professional claim (including in the form of
solidarity action) and therefore purely political strikes should be regarded as
unlawful. Nevertheless, the Cour de Cassation has acknowledged the legitimacy
of strikes which have a “macro-social goal,”32 de facto sanctioning the lawfulness of
strikes which “aim at influencing the social and economic policy of the government
which has a direct impact on working conditions.”33
A very wide understanding of the meaning of the right to strike has also been
adopted in Italy by the Corte di Cassazione:34 the Court affirmed that the
motivation for a strike is immaterial in deciding its legitimacy and recognized
the admissibility of all forms of protest considered by the workers themselves as
the most effective means to achieve their desired goal (including sympathy strikes,
articulate strikes, and politico-economic strikes).35 At the same time, the Corte
Costituzionale derived from Article 40 of the Italian Constitution the legitimacy of
political strikes, except in cases where they were organized with the intention of
overthrowing the constitutional order.36 Being a fundamental individual right, the
right to strike can be freely exercised—without any a priori need for mediation or to
comply with other procedural requirements and without any consequences a
posteriori for individual contracts of employment. In addition, since the enactment
29 Marc Moreau, La grève (Chêne 1998); Gino Giugni, Diritto sindacale (Il Mulino 2003).
30 See text accompanying n 40.
31 Cass Soc. 7 June 1995 (RJS 8–9/95 no. 933).
32 Jean-Emmanuel Ray, Droit du travail , droit vivant (16th ed Liaisons 2007).
33 Loredana Carta et al, “France” in Arabella Stewart and Mark Bell (eds), The Right to Strike:
(Giappichelli 2003).
42 Art 1(2), Legge 146/1990 (my translation: “contemperare l’esercizio del diritto di sciopero con il
focusing mostly on positive social rights, see Martin Scheinin (ed), Welfare State and Constitutionalism-
Nordic Perspectives (Nord 2001).
47 See Torgeir Aarvag Stokke, “Conflict Regulation in the Nordic Countries” (2002) 8 European
and blockades.48 At the same time, collective agreements usually provide for peace
obligations which prevent strikes unless the objective of the industrial action falls
outside the scope of the collective agreement. The right to strike is centralized in the
trade unions. Under the 1976 Codetermination Act,49 unions must notify their
decision to cease work at least seven working days before commencing strike action,
in order to ensure the possibility of mediation.50
Similarly, in Finland the right for unions to strike is derived from freedom of
association and to conduct collective bargaining enshrined in section 13 of the
Constitution, and has been interpreted by the courts as being “permitted for a wide
range of reasons and in a wide variety of forms.”51 Under Finnish law, workers and
employers are even entitled to take secondary action and to strike for political
purposes. As in Sweden, however, collective agreements include peace obligations
which prohibit industrial action during the period a collective contract is in force,
except when the strike concerns an issue which is not regulated in the collective
agreement.52 Also in Finland, the legislation and the agreements between national
trade unions and the employers’ association require “anyone intending to com-
mence a strike . . . to give written notice—stating the reasons for the strike, its
starting time and the extent of the stoppage—to the opposed party and to the
Office of the National Conciliation Officers at least 14 days beforehand.”53 Hence,
in the Nordic countries solid protection of the right to strike is coupled with wide
room for collective autonomy, based on the assumption that social partners are
capable of adopting a responsible and cooperative stance in the resolution of
industrial disputes.54
A third model of regulation of the right to strike exists in Germany. The German
system is characterized by the fact that the right to strike does not enjoy any formal
constitutional protection.55 Article 9(3) of the Basic Law recognizes the constitu-
tional freedom of association to safeguard and improve working and economic
conditions. In this context, it has been left to the highest domestic courts to derive
from this provision a protection of the right to strike.56 Already in 1955, the
Bundesarbeitsgericht recognized a right to strike in the German legal system as an
essential component of the right to collective bargaining for employers and
employees.57 Nevertheless, in Germany the right to strike has traditionally been
surrounded “with numerous limitations, such as the peace obligation during the
term of a collective agreement and a prohibition on striking for conflicts of rights, as
UP 2007).
53 See Warnek (n 28) 29.
54 See generally Nikklaas Bruun et al, The Nordic Labour Relations Model (Dartmouth 1992).
55 See Franziska Klaß et al, “Germany” in Arabella Stewart and Mark Bell (eds), The Right to Strike:
1975) 236.
150 The Right to Strike
distinct from conflicts of interests.”58 The German system, in fact, takes a strictly
contractual view of industrial conflict by legitimizing only those strikes which aim
at enhancing the bargaining position of employees: instead, it prohibits political
and solidarity strikes. In addition, in Germany the right to strike has never been
interpreted as an individual right but rather as a trade unions’ right.59 “Only those
associations which are allowed to conclude collective agreements have the right to
call a strike.”60
The most characteristic feature of the German regulatory model is represented
by the so-called principle of ultima ratio. This principle represents the application
in the field of labor law of the general constitutional principle of Verhältnis-
mäßigkeit, or proportionality.61 According to this principle, “a strike is only legal
if it is necessary and the ultimate measure to solve the industrial conflict.”62 As a
consequence, trade unions do not enjoy an unconditional right to pursue collective
action even when, in their view, a strike would be the most effective tool to
strengthen their bargaining position. “In keeping with the principle of last resort,
all possibilities of a peaceful negotiation for settlement must have been exhausted”
before a trade union can go on strike.63 Labor courts are empowered to assess
the proportionality of industrial action undertaken by trade unions and can, if
necessary, sanction illegal strikes and condemn the trade unions to pay damages.
Historically, in Germany industrial relations between employees’ unions and
employers’ associations have been very cooperative and this has kept industrial
action to a minimum.64 Yet, by permitting strikes only when they are proportion-
ate, German law has designed a somewhat restrictive model of regulation for the
right to strike which ensures wide protection for other constitutional values (e.g.,
the right to property and freedom of enterprise).65
A system of regulation of strike action akin to that in Germany also exists in
Poland. In the Polish system, the right to strike is formally enshrined as a trade
unions’ prerogative in Article 59(3) of the Constitution, which affirms that “trade
unions shall have the right to organize workers’ strikes or other forms of protest
subject to limitations specified by statute.” Detailed regulation of the permitted
limits of industrial action is provided in the 1991 Act on the settlement of collective
labor disputes.66 As in Germany, industrial action is permitted in Poland only for
disputes over interests, rather than rights: “Strikes of political or more generally
Canadian and German Constitutional Jurisprudence” (2007) 57 University of Toronto Law Review 383.
62 Klaß et al (n 55) 56. 63 Warnek (n 28) 33. 64 See Klaß et al (n 55) 54.
65 The existence of the principle of proportionality in the German system is what makes that
model more restrictive than the Nordic model. See Stokke (n 47) 683 (explaining that “principles
concerning proportionality do not play any important role in the Nordic countries”).
66 Ustawa z dnia 23 maja 1991 r. o rozwiązywaniu sporów zbiorowych (Dz. U. z dnia 26 czerwca
socio-economic nature are not included in th[e statutory] definition.”67 The law, in
addition, sets up an obligation for trade unions to engage in negotiations and
mediations with employers prior to taking strike action.68 Finally, under Polish
law the “strike is treated by the legislator (as well as in jurisprudence . . . ) as a last
resort measure, only to be organized when all other possibilities to solve the conflict
have failed.”69 According to the 1991 Act, in fact, the choice of trade unions to go
on strike must be the ultima ratio.70 Hence, the Polish legal regulation of the right
to strike also appears to be based on a strict “proportionality rule: when taking the
decisions to call a strike, the party representing employee interests shall ensure that
demands are commensurate with the losses that the strike entails, not only in
relation to the parties in dispute but also to third parties.”71
The most restrictive regulation of the right to strike can be seen in the UK
model. Traditionally, under English common law voluntary stoppage of work by
employees did not enjoy any protection and was, in fact, punishable by the courts
as a tort and a breach of contract.72 In the early years of the 20th century, and again
after the end of World War II, several statutes were enacted in the UK to allow
workers to take industrial action:73 however, “the statutory provisions which permit
the organization of industrial action and participation in such action are framed in
terms of immunities from the tortuous and criminal liability that would otherwise
attach.”74 As such, it can be argued that “there is no fundamental right to strike” in
the UK.75 In the British legal system, strike action is rather a freedom “regulated by
statute and common law.”76 The legislative framework for the exercise of the
freedom to strike has been the object of several subsequent reforms, especially
during the 1980s, under pressure brought to bear by Conservative governments.
Currently, it is condensed in Part V of the Trade Union and Labour Relations
(Consolidation) Act 1992 (TULRCA).77
According to the TULRCA, an “act done by a person in contemplation or
furtherance of a trade dispute is not actionable in tort on the ground only—(a) that
it induces another person to break a contract or interferes or induces another person
to interfere with its performance.”78 The definition of a “trade dispute” for the
purposes of the TULRCA is to be found in the so-called “golden formula,” that is,
67 Joanna Unterschütz and Krzysztof Woźniewski, “Industrial Relation within the Polish Legal
System—Why the CJEU Judgments Have Little Effect on Poland” in Andreas Bücker and Wiebke
Warnek (eds), Reconciling Fundamental Social Rights and Economic Freedoms After Viking, Laval and
Ruffert (Nomos 2011) 159, 167.
68 See Warnek (n 28) 56. 69 Unterschütz and Woźniewski (n 67) 168.
70 Art 17(3), Ustawa. 71 Unterschütz and Woźniewski (n 67) 169.
72 See Taff Vale Railway Co. Ltd. v. Amalgamated Society of Railway Servants [1901] AC 426 (UK
House of Lords holding trade unions liable under the common law for damage caused by industrial
action).
73 See Jacobs (n 15) 212.
74 Ruth Dukes, “The Right to Strike under UK Law: Not Much More than a Slogan?” (2010) 39
79 TULRCA, s 244:
In this Part a “trade dispute” means a dispute between workers and their employer which
relates wholly or mainly to one or more of the following—(a) terms and conditions of
employment, or the physical conditions in which any workers are required to work; (b)
engagement or non-engagement, or termination or suspension of employment or the duties
of employment, of one or more workers; (c) allocation of work or the duties of employment
between workers or groups of workers; (d) matters of discipline; (e) a worker’s membership
or non-membership of a trade union; (f) facilities for officials of trade unions; and (g)
machinery for negotiation or consultation, and other procedures, relating to any of the
above matters, including the recognition by employers or employers’ associations of the
right of a trade union to represent workers in such negotiation or consultation or in the
carrying out of such procedures.
80 TULRCA, s 222. 81 TULRCA, s 225. 82 TULRCA, s 224(1).
83 Barrett et al (n 76) 101. 84 TULRCA, s 226. 85 TULRCA, s 226A.
86 TULRCA, s 226A. 87 TULRCA, ss 231 and 231A.
88 TULRCA, s 234. 89 See Barrett et al (n 76) 102.
90 Miles v. Wakefield Metropolitan District Council [1987] AC 539 (per Templeman LJ).
91 47 Eliz. 2, c. 26 (Eng.).
92 TULRCA, s 238A(1) introduced by the ERA 1999, s 16, Sch 5.
93 52 Eliz. 2, c. 24 (Eng.). 94 TULRCA, s 237.
Challenge 153
to have been unfairly dismissed, they cannot be reinstated against the wishes of the
employer and so the only remedy is compensation.”95 As a consequence, the UK
legal system provides a rather hostile environment for workers willing to go on
strike and can be described as the most restrictive model of regulation of the right to
strike Europe-wide.96
In conclusion, a quick overview of the regulation of the right to strike in the
European legal systems reveals that there exist “marked differences between the
specific regulations on strikes existing in the various [EU] States.”97 Many EU
member states such as France, Italy, Spain, and Portugal, ensure very advanced
protection of the right to strike, enshrining it in their constitutions. In some states,
social partners have no role in the regulation of the right to strike, while in others—
notably the Nordic countries—collective bargaining represents a core component
of the legal framework in which industrial action can be taken. Countries such as
Germany and Poland have instead a legislative framework for protecting the
right to strike which empowers labor courts to exercise a pervasive proportionality
analysis to verify the lawfulness of collective action. Finally, the UK has an
extremely restrictive legislation, which refuses to recognize strike action as a right
and treats it, rather, as a statutory freedom subject to strict substantive and
procedural requirements. Above this pluralism of state laws operates, however, an
increasingly important supranational law.
Novitz, International and European Protection of the Right to Strike (OUP 2003).
99 See Antonio Baldassarre, “I diritti sociali” in Enciclopedia Giuridica (Treccani 1989) vol. 11 ad
vocem.
100 It is well known that in the post-World War II period, the political elites of the six founding
member states of the EC were powerfully committed to the protection of social rights, as evidenced by
the strong recognition that labor rights enjoyed in the national constitutions adopted at that time. In
the view of the member states, moreover, the creation of a free common market under the aegis of the
EC was conceived as an instrument for the economic and social progress of the European societies,
which in the mid to long run would have benefitted workers with better wages and working conditions.
See Preamble, TEC (affirming “as the essential objective of [the member states’] efforts the constant
improvement of the living and working conditions of their peoples”).
154 The Right to Strike
the EU legal order. First, the founding Treaties of the EC did not include any
provision encompassing the right to strike.101 Rather, when in 1997 the Amster-
dam Treaty expanded the competences of the EC in the field of social policy, a
provision was inserted in the Treaties—Article 137(5) EC Treaty (TEC), now
renumbered by the Lisbon Treaty as Article 153(5) Treaty on the Functioning
of the European Union (TFEU)—to exclude the application of the new EC
competences from “the right of association, the right to strike or the right to
impose lock-outs.” Secondly, in 1989 the EC proclaimed a Community Charter
of Fundamental Social Rights of Workers (CCFSRW) which, inter alia, protected a
right to resort to collective action.102 The CCFSRW, however, was not signed by
all the (then) 12 member states, since the UK abstained from any commitment to
the instrument.103 The CCFSRW also lacked binding force, being intended as a
political declaration to be implemented by the member states according to the
principle of subsidiarity. Lastly, the ECJ showed great “judicial circumspection”104
in protecting the right to strike. Although the ECJ acknowledged that the EC
institutions’ staff enjoyed a right to form trade unions and to act for the protection
of their interests,105 for many years it did not officially endorse the opinion of
Advocate General (AG) Jacobs in Albany International 106 that “the right to take
collective action in order to protect occupational interests . . . is also protected by
[EC] law.”107
At the same time, “the lack of a fundamental social right in [EC] sources [was]
not totally compensated for by [the] references to the ECHR”108 and the European
Social Charter (ESC) contained in the EU Treaties.109 Indeed, major obstacles
toward the protection of a right to strike also seemed to exist in the legal framework
of the Council of Europe.110 On the one hand, the 1950 ECHR only enshrined a
catalogue of civil and political liberties, with almost no attention paid to social and
Labor” (1991) 44 Industrial and Labour Relations Review 626. Note that Art 151 TFEU (ex Art 136
TEC), as amended by the Amsterdam Treaty, now makes express reference to the CCFSRW as an
inspiration for the EU in the exercise of its competence in the sphere of social policy.
104 Novitz (n 98) 246.
105 See Case 175/73 Union Syndacale, Massa and Kortner v. Commission [1974] ECR 917 (holding
that EC officials have the right to form organizations of their own choosing and that these associations
are free to do anything lawful to protect the interest of their employees) and Case 18/75 Syndacat
Général du Personnel Organismes Européens v. Commission [1974] ECR 933 (same).
106 Case C-67/96 Albany International [1999] ECR I-5751 (holding that collective agreements fall
Social Rights Policy” in Philip Alston et al (eds), The EU and Human Rights (OUP 2000) 483, 484.
109 As it is well known, Art 6 TEU, as introduced by the Maastricht Treaty, included a reference to
the ECHR. In addition, Art 151 TFEU (ex Art 136 TEC), as amended by the Amsterdam Treaty,
makes express reference to the ESC as an inspiration for the EU social policy competences.
110 See Stefan Clauwaert, “Transnational Primary and Secondary Collective Action: An Overview
of International, European and National Legislation” (2002) 8 European Review of Labour and
Research 624.
Challenge 155
economic rights. Article 11 ECHR affirms that “Everyone has the right to
freedom of peaceful assembly and to freedom of association with others, includ-
ing the right to form and to join trade unions for the protection of his interests.”
Yet the ECtHR denied, until recently,111 that Article 11 could be interpreted as
protecting a right to strike.112 The ECtHR repeatedly held that Article 11
imposed a duty on the contracting parties to set up domestic mechanisms to
enable trade unions to represent their members113 but that this did not include a
right to collective bargaining114 or collective action.115 On the other hand, the
ESC—enacted in 1961 and revised in 1996—did include an explicit provision,
Article 6(4), protecting “the right of workers and employers to collective action in
case of conflicts of interest, including the right to strike.” The ESC, however, did
not include any effective mechanism for enforcing this right.116 Compliance by
the signatory states is ensured through periodic reviews and only in 1995 was an
optional protocol adopted to allow trade unions and employers’ organizations to
bring a complaint before the European Committee of Social Rights (ECSR).117
Compared to the supervision of the ECtHR, review by the ECSR appears
extremely weak, as it is “hampered by State control.”118 Hence, neither the
ECHR nor the ESC worked as an effective bulwark for the protection of the
right to strike at the European level from which the EU institutions could draw
inspiration.
Nevertheless, over the last decade a number of legal and jurisprudential devel-
opments have reshaped the framework for the protection of the right to strike at the
supranational level, highlighting a growing influence of EU law in the regulation of
industrial action. First, in 2000 the EU institutions proclaimed a Charter of
(holding that Art 11 ECHR attributes to trade unions a right to be heard but not a right to be
consulted).
114 See Swedish Engine Drivers’ Union v. Sweden, ECHR [1979] App. No. 5614/72 (holding that
Art 11 does not attribute to trade unions a right to conclude collective agreements); Wilson and others v.
United Kingdom, ECHR [2002] App. No. 28212/95 (holding that Art 11 does not include a right to
collective bargaining but that the state has a positive obligation to secure enjoyments of the right under
Art 11).
115 See Schmidt and Dahlström v. Sweden, ECHR [1976] App. No. 5589/72 (upholding a Swedish
restriction on the right to strike on the understanding that a strike is an important means by which
union members can protect their interests but that there are also other avenues); UNISON v. United
Kingdom, ECHR [2002] App. No. 53574/99 (upholding a British restriction on the right to strike as
justified under Art 11).
116 Under the 1961 ESC contracting parties were required exclusively to submit reports on the
extent of their compliance with the ESC to a Committee of Independent Expert nominated by the
Council of Europe’s Committee of Ministers. For a description of the original supervisory system of
the ESC, see Alexandre Berenstein, “The System of Supervision of the European Social Charter” in
Lammy Betten et al (eds), The Future of European Social Policy (Kluwer 1989) 42.
117 On the new supervisory mechanism, see Robin Churchill and Urfan Khaliq, “The Collective
Complaints System of the European Social Charter: An Effective Mechanism for Ensuring Compli-
ance with Economic and Social Rights?” (2004) 15 European Journal of International Law 417.
118 Novitz (n 98) 241.
156 The Right to Strike
Fundamental Rights (Charter). The Charter pursued the goal of restating the case
law of the ECJ in the field of fundamental rights. In fact, the Charter included a
number of innovative provisions and quite remarkably merged in the same cata-
logue a set of both civil and political rights and social and economic rights.119
Hence, Article 28 (which is located in Title IV of the Charter, entitled “Solidarity”)
codifies a right of collective bargaining and action and reads: “Workers and
employers, or their respective organisations, have, in accordance with Union law
and national laws and practices, the right to negotiate and conclude collective
agreements at the appropriate levels and, in cases of conflicts of interest, to take
collective action to defend their interests, including strike action.” Until the entry
into force of the Lisbon Treaty, the Charter was not vested with binding force.120
Yet, drawing, inter alia, on the Charter, in two joint decisions delivered on 3
December 2007—International Transport Workers’ Federation v. Viking121 and
Laval un Partneri Ltd. v. Svenska Byggnadsarbetareförbundets122—the Grand Cham-
ber of the ECJ held that the right to strike is a fundamental right of the EU
constitutional order.123 In these decisions, however, the ECJ drew up a standard for
the protection of the right to strike which differs from that in force in a number of
EU member states.124
In Viking, the ECJ was faced with a preliminary reference from the Court of
Appeal for England and Wales. The case in the main proceedings concerned a
Finnish company, Viking Lines, which operated ferry services between Helsinki,
Finland and Tallinn, Estonia. Viking ran its business at a loss and wished to relocate
its place of establishment to Estonia in order to benefit from lower wages. Viking’s
plan to reflag its vessels was met with opposition by the Finnish Seamen’s Union
(FSU) and its international partner, the London-based International Transport
Workers’ Federation (ITWF). To prevent the relocation, the FSU threatened to
take industrial action against Viking and the ITWF requested that its Estonian
affiliates refuse to enter into negotiations with Viking. Viking brought a case before
a UK tribunal to enjoin the FSU and ITWF from striking. In its complaint, Viking
argued that the industrial action taken by the FSU, with the support of the ITWF,
was preventing Viking from relocating its vessels to Estonia and was thus interfering
with its freedom of movement under EU law. The Court of Appeal therefore asked
119 On the Charter and the protection of labor rights, see Bernard Ryan, “The Charter and
Collective Labour Law” in Tamara Hervey and Jeff Kenner (eds), Economic and Social Rights under
the EU Charter of Fundamental Rights. A Legal Perspective (Hart Publishing 2003) 67.
120 See Section 6. 121 Case C-438/05 Viking [2007] ECR I-10779.
122 Case C-341/05 Laval [2007] ECR I-11767.
123 For comments on the decisions, see among others Alicia Hinarejos, “Laval and Viking : The
Right to Collective Action versus EU Fundamental Freedoms” (2008) 8 Human Rights Law Review
714; Judy Fudge, “Constitutionalizing Labour Rights in Europe” in Tom Campbell et al (eds), The
Legal Protection of Human Rights. Sceptical Essays (OUP 2011) 244.
124 See generally Anne Davies, “One Step Forward, Two Steps Back? The Viking and Laval Cases in
the ECJ” (2008) 37 Industrial Law Journal 126; Norbert Reich, “Free Movement v. Social Rights in an
Enlarged Union—the Laval and Viking Cases Before the ECJ” (2008) 9 German Law Journal 125.
Challenge 157
the ECJ whether the collective action by the FSU and ITWF fell outside the scope
of EU law or, if not, whether it was justified or, rather, constituted an unwarranted
restriction of the free movement rules enshrined in Article 43 TEC (current Art 49
TFEU). In his opinion, AG Maduro acknowledged that the case presented the ECJ
with an issue of “great socio-political sensitivity . . . [touching] on the relationship
between social rights and the rights to freedom of movement.”125
The ECJ answered the first question of the referring judge by stating that
collective action by trade unions “falls, in principle, within the scope of Article
43 TEC”126 and it consequently rejected a number of observations that had been
raised by the main parties to the proceedings and by the intervening governments.
First, the ECJ discarded the submission of the Danish government that Article 137
(5) TEC excluded the competence of the EU in this field. The ECJ argued that “the
fact that Article 137 TEC does not apply to the right to strike or to the right to
impose lock-outs is not such as to exclude collective action . . . from the application
of Article 43 TEC.”127 Secondly, the ECJ refused to apply by analogy the Albany
International doctrine, underlining that Albany concerned the application of com-
petition rules whereas Viking concerned freedom of movement. Most importantly,
the ECJ rejected the idea that industrial action fell outside the scope of EU law
because the right to strike was a fundamental right. In a remarkable paragraph, the
ECJ affirmed instead that:
the right to take collective action, including the right to strike, is recognised both by
various international instruments which the Member States have signed or cooperated in,
such as the European Social Charter . . . —to which, moreover, express reference is made
in Article 136 TEC—and Convention No 87 concerning Freedom of Association and
Protection of the Right to Organise, adopted on 9 July 1948 by the International Labour
Organisation—and by instruments developed by those Member States at Community
level or in the context of the European Union, such as the Community Charter of
the Fundamental Social Rights of Workers . . . and the Charter of Fundamental Rights
of the European Union.128
The ECJ thus held that “the right to strike, must . . . be recognised as a fundamental
right which forms an integral part of the general principles of Community law the
observance of which the Court ensures.”129
Having recognized for the first time in its jurisprudence that the right to strike is
part of the constitutional principles of the EU legal order, the ECJ underlined how
the exercise of that right may nonetheless be subject to limitations to ensure the
protection of other fundamental EU freedoms. Hence, the ECJ moved to examine
whether the collective action by the FSU and ITWF represented a restriction of the
right of free movement and whether it could be regarded as justified. According to
the ECJ, it could not be disputed that “collective action such as that envisaged by
FSU ha[d] the effect of making less attractive, or even pointless . . . Viking’s exercise
130 Viking (n 121) para 72. 131 Viking (n 121) Opinion of AG Maduro, para 59.
132 Viking (n 121) para 78 (quoting Art 3(1)(c) and (j) TEC).
133 It should be noted that the Court of Appeal for England and Wales which had referred the
preliminary question to the ECJ did not actually decide the case because, after the decision of the ECJ,
the parties settled the dispute.
134 Viking (n 121) para 84. 135 Viking (n 121) para 87. 136 Viking (n 121) para 90.
Challenge 159
In Laval, the Arbetsdomstolen, the Swedish Labor Court, had requested a prelim-
inary ruling from the ECJ in the context of proceedings between Laval, a company
incorporated under Latvian law, and three Swedish trade unions operating in the
construction industry. Pursuant to EU provisions on freedom to provide services,
Laval concluded a contract with a Swedish developer to build a school in the city of
Vaxholm, Sweden. To complete the works, Laval posted a number of Latvian
workers to Sweden. These workers were members of the Latvian construction
industry’s trade union and Laval was bound by the conditions set in the Latvian
collective agreement for that sector. Soon after beginning work in Sweden, Laval
was requested by the Swedish trade unions to conclude the Swedish collective
agreement for the construction industry, which required Laval to pay higher wages
to its Latvian workers. Refusal by Laval to enter into an agreement triggered
industrial action by the Swedish unions which mounted a blockade and organized
a sympathy strike, de facto preventing Laval from continuing its construction work.
Laval brought a case before the Swedish labor court to obtain, first, a declaration
that the collective action by the Swedish unions affecting Laval’s worksite was
unlawful; second, an order that such action should cease; and, third, an order that
the trade unions pay compensation for the loss suffered by Laval. In its reference,
the Arbetsdomstolen asked the ECJ whether the industrial action by the trade
unions in the case at hand could be regarded as compatible with the freedom to
provide services enshrined in Article 49 TEC (current Art 56 TFEU). As such,
Laval raised a problem analogous to that of Viking, requiring the ECJ “to weigh the
exercise by trade unions of their right to resort to collective action to defend
workers’ interests . . . against the exercise, by an undertaking established in the
Community, of its freedom to provide services, a fundamental freedom guaranteed
by the [T]EC.”137
The ECJ approached the issue of the right to strike in Laval just as it had in
Viking:138 it rejected the argument that collective action fell outside the scope of
Article 49 TEC and restated the fundamental nature of the right to strike in the EU
legal order. The ECJ remarked that “the exercise of that right may nonetheless be
subject to certain restrictions.”139 Hence, it began its review of whether the
industrial action at hand constituted a restriction on the freedom to provide
services, and, if so, whether it could be justified. The ECJ held that the strike by
the Swedish trade unions was “liable to make it less attractive, or more difficult, for
[Laval] to carry out construction work in Sweden, and therefore constitute[d] a
restriction on the freedom to provide services.”140 The ECJ assessed whether the
restriction was proportionate. It recognized that “in principle, [industrial] action by
141 Laval (n 122) para 107. 142 Laval (n 122) para 108. 143 Laval (n 122) para 111.
144 In response to the preliminary ruling of the ECJ, the Swedish Arbetsdomstolen awarded Laval
compensation for damages totalling € 50,000 plus costs of € 200,000. See Katherine Apps, “Damages
Claims Against Trade Unions After Viking and Laval ” (2009) 34 European Law Review 141.
145 Catherine Barnard, “Viking and Laval: an Introduction” (2007–08) 10 Cambridge Yearbook of
Industrial Relations Systems: Understanding the Laval Case from a Swedish and Nordic Perspective”
(2007–08) 10 Cambridge Yearbook of European Legal Studies 493.
Challenge 161
the broad constitutional reading that countries such as Italy and France accord to the
right to strike.149 However, the solution envisaged by the ECJ to recognize a right to
strike only inasmuch as its exercise complies with the principle of proportionality is
not without basis in domestic law. Indeed, this solution reflects the rule in force in the
industrial relations systems of countries such as Germany and Poland. As mentioned
previously, in Germany the right to strike is permitted only as an ultima ratio and
courts routinely subject industrial action by the trade unions to a strict proportionality
test.150 From this point of view, therefore, it would appear that the ECJ introduced at
the EU level a protection for the right to strike which lies somewhere in the middle
between the vanguard and laggard models for the regulation of industrial action
identified in section 2.151 The standard for the protection of the right to strike
developed by the ECJ in Viking and Laval is less protective than, say, the Swedish
standard.152 However, it is as protective as the German standard.153 And, perhaps,
more protective than the British standard:154 technically speaking, no fundamental
right to strike exists under UK law, even though, of course, UK courts “have never
subjected industrial action to a proportionality test considering whether the harm
caused to the employer is proportionate to the union’s objectives in taking industrial
action.”155
Whatever the appropriateness of these considerations on the compatibility of the
constitutional standards of the EU and the member states,156 it is nonetheless clear
149 See Edoardo Ales et al, “Collective Action in Italy: Conceptualizing the Right to Strike” in
Andreas Bücker and Wiebke Warnek (eds), Reconciling Fundamental Social Rights and Economic
Freedoms after Viking, Laval and Rüffert (Nomos 2011) 119.
150 See text accompanying nn 61–5.
151 I draw the expressions “vanguard” and “laggard” from Ann Althouse, “Vanguard States, Laggard
States: Federalism and Constitutional Rights” (2003–04) 152 University of Pennsylvania Law Review
1745 (who uses it describe the “most protective” and “least protective” regimes for the protection of
fundamental rights at the state level in the US federal system of government).
152 See Niklas Bruun et al, “Consequences and Policy Perspectives in the Nordic Countries as a
Result of Certain Important Decisions of the Court of Justice of the EU” in Andreas Bücker and
Wiebke Warnek (eds), Reconciling Fundamental Social Rights and Economic Freedoms after Viking,
Laval and Rüffert (Nomos 2011) 19.
153 This, of course, does not mean that there is complete and general correlation between German
labor standards and EU law. For a contrary view, see Eva Kocher, “Fundamental Social Rights in
Community Law and in the German Constitution—Equivalent Rights?” (2008) 24 International
Journal of Comparative Labour Law and Industrial Relations 385 (explaining that there are divergences
between EU law and German constitutional law on the interpretation of the negative right of
association). See also Case C-271/08 Commission v. Germany [2010] ECR I-7091 (holding that
Germany had violated EU public procurement law because German local authorities had entered
into a collective agreement with the relevant workers’ unions pursuant to the German law on industrial
relations and selected pension providers for their workforce without opening the selection process to
competitive tender from other EU firms).
154 See Rebecca Lisa Zahn, “I casi Viking e Laval: tra problemi di allargamento e soluzioni poco
fortunate” in Marta Cartabia (ed), Dieci casi sui diritti in Europa (Il Mulino 2011).
155 Barnard (n 145) 489.
156 On this issue, see also Nicole Lindstrom, “Service Liberalization in the Enlarged EU: A Race to
the Bottom or the Emergence of Transnational Political Conflict?” (2010) 48 Journal of Common
Market Studies 1307 (outlining the position of the member states before the ECJ in the Viking and
Laval cases and underlining the difference in approach between the more “labor-friendly” position of
EU member states of Western Europe and the more “market-friendly” position of the new EU member
states of Central and Eastern Europe).
162 The Right to Strike
that Viking and Laval embody a major challenge to the domestic systems for the
protection of the right to strike.157 Recognition at supranational level of a right to
strike at the conditions set in Viking and Laval puts the states’ regulation of
industrial action under pressure and creates a number of tensions between national
and EU law. These tensions are particularly evident for those EU countries that
ensure a heightened and advanced system for the protection of the right to
strike158—although they might also emerge in other member states.159 The EU
standard for the protection of the right to strike does not displace national standards
tout court. Indeed, the ECJ’s right to strike rules only apply in cases of transnational
industrial action, that is, cases where the conflict between unions and employers
extends to more than one member state and calls into question the EU free
movement rules. However, as interstate commerce expands in the EU, industrial
disputes with a cross-border dimension increase. In this broadening field, the
interplay between EU law and domestic law threatens “to undermine the effect-
iveness with which labour standards, whether originating in law or in collective
agreement, can be applied at the national level.”160
As explained in Chapter 1, a challenge of ineffectiveness emerges in the Euro-
pean multilevel human rights architecture when supranational law sets a ceiling for
the protection of a given human right which prevents states from enforcing the
more protective standards existing in their legal systems. That dynamic emerges
here. For a number of years, in the absence of binding or enforceable standards for
the protection of the right to strike at the supranational level in Europe, the EU
member states were free to regulate the right to strike as they thought appropriate.
In the last decade, however, the autonomy of the member states has come under
increased pressure due to the impact of EU law over national law.161 Following the
enactment of the Charter, in Viking and Laval the ECJ recognized the existence of a
fundamental right to strike in the EU constitutional order. Yet, by framing the
exercise of the right to industrial action as a possible interference with the principles
of a free market, the ECJ developed a standard of protection for the right to strike
which is more restrictive than that existing in several EU member states. As a
consequence, the ECJ’s “express recognition to the right to strike as a fundamental
human right d[id] not lead to enhanced protection of that right.”162 The ECJ
designed a balancing test between free movement and social rights which ensures
157 See Silvana Sciarra, “Viking and Laval: Collective Labour Rights and Market Freedoms in the
Relations: The Nordic Case” in Jo Shaw (ed), Social Law and Policy in an Evolving European Union
(Hart Publishing 2000) 103.
159 See Barnard (n 145) 489 (arguing that “The application of the proportionality test [designed by
the ECJ in Viking and Laval ] has the possibility of profoundly changing British strike law”).
160 Simon Deakin, “Regulatory Competition After Laval ” (2007–08) 10 Cambridge Yearbook of
Aziz, The Impact of European Rights on National Legal Cultures (Hart Publishing 2004).
162 Barnard (n 145) 486.
Comparative assessment 163
protection of the right to strike only when industrial action is suitable, necessary,
and strictly proportional to the achievement of the workers’ desired goal.
This jurisprudence places the regulation of the right to strike in several EU
member states under pressure. As has been argued, “the ECJ’s case law recogniz-
ing a new fundamental social right, may, paradoxically, lead to new restrictions on
the right to strike in Member States guaranteeing a high level of protection of that
right. Thus the ECJ case law constitutes a challenge to national labour law
systems and its outcome may well be to limit collective autonomy rather than
strengthen it.”163 By setting a ceiling of protection for collective labor rights in
industrial disputes with a cross-border dimension, the case law of the ECJ has
called into question the effectiveness of the protection of the right to strike of
many EU member states. To the extent to which the tensions between state and
supranational laws are a consequence of the difficult balancing between free
market principles and social rights guarantees in a federalism-based system of
governance, however, the European experience does not seem to be unique.
Indeed, exploring in a comparative perspective the federal experience of the US
can provide useful points of reference to explain the dynamics currently at play in
Europe and possible lessons to discuss how the European legal regime may evolve
in the future.
163 Sophie Robin-Olivier, “Normative Interactions and the Development of Labour Law:
Recalibration of Economic and Social Rights in Europe” (2008) 14 Columbia Journal of European
Law 467.
164 The Right to Strike
A number of conventional arguments are generally put forward against the
feasibility and usefulness of a comparison between Europe and the US in
the field of social rights. These arguments commonly stress the exceptionalism of
the US constitutional system for the protection of social rights and underline the
existence of “a clear dividing line”166 between the European social model and the
limited guarantee that social and economic rights enjoy in the US. Cass Sunstein
has surveyed three main explanations for these differences.167 First, the US Con-
stitution dates back to the 18th century, and lacks the social and economic
guarantees that were largely a creation of the 20th century. Secondly, the US has
a distinctively libertarian and individualist culture that prizes the right to be free
from government intrusion. Thirdly, the US Constitution is enforced by courts and
there has been much reluctance in codifying a catalogue of social rights whose
enforcement the courts would not be able to handle properly. According to
Sunstein, however, none of these justifications is entirely satisfactory. Rather, his
explanation of why the US is not endowed with a strong system for the protection
of social rights centers on the judicial transformations that took place in the
US Supreme Court during the 1970s. Following the appointment of conservative
justices by the Republican Administrations the case law of the federal courts in the
field of social rights cooled and this prevented the codification of a second Bill of
Rights in the US.168
In this chapter I do not intend to engage in this debate. Indeed, it is plausible to
argue that significant differences exist in the constitutional protection of social
rights between the US and the European states. What I want to suggest, however, is
that these differences may be less pronounced when we compare the US with the
European system as a whole. Most comparative constitutional and labor lawyers
have explored the differences in the protection of social and labor rights that exists
between the US and the individual EU member states.169 The picture seems to
change significantly, instead, when we consider the European multilevel constitu-
tional architecture in its entirety as a multi-layered arrangement.170 As has been
argued, “the legal order of the [EU] seems closer to the American archetype than to
the European average.”171 The “tensions over whether the central government or
the states . . . are the most suitable jurisdictions for dealing with the relationship
between employers and unions” have existed for many years in the US federal
166 George Katrougalos, “European ‘Social States’ and the USA: An Ocean Apart?” (2008) 4
[2007] Journal of Comparative Economics 1 and Keith Ewing, “Economic Rights” in Michel
Rosenfeld and András Sajó (eds), The Oxford Handbook of Comparative Constitutional Law (OUP
2012) 1036.
170 For an analysis of the complexities arising in comparing the EU, see Renaud Dehousse,
“Comparing National and EC Law: the Problem of the Level of Analysis” (1994) 42 American Journal
of Comparative Law 761.
171 Katrougalos (n 166) 226.
Comparative assessment 165
172 Greg Patmore, “The Origins of Federal Industrial Relations Systems: Australia, Canada and the
Martin Vranken (eds), Federalism and Labour Law: Comparative Perspectives (Intersentia 2004) 101.
175 Mark Tushnet, Weak Courts, Strong Rights. Judicial Review and Social Welfare Rights in
178 Benjamin Aaron, “Labor Relations Law in the United States from a Comparative Perspective”
legal system, see Vicki Jackson, “Narrative of Federalism: Of Continuities and Comparative Consti-
tutional Experience” (2001) 51 Duke Law Journal 223, 258.
180 On the US experience during the so-called Lochner Era as an “anti-model” of comparative
constitutional law, see Sujit Choudhry, “The Lochner Era and Comparative Constitutionalism” (2004)
2 International Journal of Constitutional Law 1, 3.
181 See Ernest Young, “Protecting Member State Autonomy in the European Union: Some
Cautionary Tales from American Federalism” (2002) 77 NYU Law Review 1612.
182 Eliasoph (n 165) 507.
183 See generally Christopher Tomlins, The State and the Unions (CUP 1985).
184 See Gerald Gunther and Kathleen Sullivan, Constitutional Law (13th ed Foundation Press
prohibited as unlawful all industrial action which did not lead to immediate benefits
for workers.188
The protection that labor began to enjoy at state level throughout the Progressive
Era, however, was put under pressure by the federal courts.189 To begin with,
the US Supreme Court interpreted the provisions of the Federal Antitrust Act
(Sherman Act)190 broadly as prohibiting collective action by trade unions.191 In
Loewe v. Lawlor,192 the US Supreme Court ruled that concerted action by union
members in pursuit of their interests constituted an unlawful combination in
violation of the antitrust rules and an interference with “the liberty of a trader to
engage in business.”193 Secondly, in a series of decisions epitomized by Lochner
v. New York,194 the Supreme Court held that the US Constitution’s guarantee
that an individual shall not be deprived of liberty or property without “due
process of law”195 included a freedom to enter into private contracts without
government restriction.196 Under this substantive reading of the Due Process
Clause, federal courts enforced a laissez-faire theory of economics and struck
down as unconstitutional a host of state and federal legislation aiming to improve
the social and working conditions of employees and the relations between labor and
management.197
Ironically, at the height of the Lochner Era, the US Supreme Court held in a
1923 decision that the Due Process Clause of the Fourteenth Amendment to the
US Constitution protected a constitutional right to strike.198 In the case of Charles
Wolff Packing Co. v. Court of Industrial Relations,199 the Supreme Court invalidated
a Kansas law that banned strikes in essential industries and established an industrial
court to solve labor–management disputes, arguing that the state statute deprived
For a thorough historical examination of the Lochner case, see Sidney Tarrow, “Lochner v. New York:
A Political Analysis” (1964) 5 Labor History 277.
195 See US Const. Am. V (no person shall “be deprived of life, liberty, or property, without due
process of law”) and Am. XIV (nor “shall any State deprive any person of life, liberty, or property,
without due process of law”). On the Due Process Clause, see John Orth, Due Process of Law. A Brief
History (Kansas UP 2003).
196 On the so-called Lochner Era of the US Supreme Court, see, inter alia, Cass Sunstein, “Lochner’s
contract a Kansas statute prohibiting employers from requiring employees to refrain from joining trade
unions as a condition of employment); Adair v. United States, 208 U.S. 161 (1908) (striking down as a
violation of the Commerce Clause a federal statute prohibiting railway employers from discriminating
against employees because they had joined a trade union).
198 James Grey Pope, “Contract Race and the Freedom of Labor in the Constitutional Law of
200 Charles Wolff Packing (n 199) at 544. It is worth noting that in this case the challenge against the
state statute was brought by an employer. The US Supreme Court, however, in holding the Kansas
statute unconstitutional, placed weight on its restriction of labor’s ability to resort to strike action or
work stoppages, implying that such restrictions were incompatible with the Due Process Clause of the
US Constitution.
201 272 U.S. 306 (1926). 202 Dorchy (n 201) at 311.
203 Dorchy (n 201) at 311. 204 Eliasoph (n 165) at 471.
205 See generally Jeff Shesol, Supreme Power: Franklin Roosevelt vs the Supreme Court (Norton 2010).
206 Clayton Act, 38 Stat. 739 (1914) currently codified at 15 U.S.C. } 17; 29 U.S.C. } 52; Railway
Labor Act, 44 Stat. 577 (1926) currently codified at 29 U.S.C. }} 102, 104, 113.
207 See Sunstein (n 167) 35 ff.
208 Holly McCammon, “Legal Limits on Labour Militancy: US Labor Law and the Right to Strike
215 NLRB v. Jones and Laughlin Steel Corp., 301 U.S. 1 (1937).
216 See also New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552 (1938) (upholding the
constitutionality of the Norris–La Guardia Act).
217 29 U.S.C. } 151. 218 29 U.S.C. } 157.
219 29 U.S.C. } 163. 220 29 U.S.C. } 153. 221 29 U.S.C. } 152.
222 Archibald Cox, “Federalism in the Law of Labor Relations” (1954) 67 Harvard Law Review
1297, 1307.
223 Mason Doan, “State Labor Relations Acts” (1942) 56 Quarterly Journal of Economics 507.
224 See Cox (n 222) 1307.
225 Paul Hays, “Federalism and Labor Relations in the United States” (1954) 102 University of
226 See Harry Millis and Emily Clark Brown, From the Wagner Act to Taft–Hartley (Chicago UP
1950) 316.
227 Cox (n 222) 1312. 228 359 U.S. 236 (1959).
229 Barbara Fick, “Federalism and Labour Law: The American Experience” in Othmar Vanachter
and Martin Vranken (eds), Federalism and Labour Law: Comparative Perspectives (Intersentia 2004)
73, 80–1.
230 Julius Getman and Ray Marshall, “The Continuing Assault on the Right to Strike” (2001) 79
stated that the NLRB had no power to deter unfair labor practice and could only
remedy harms in proceedings brought before it by private parties. In NLRB v.
Fansteel Metallurgical,238 the Supreme Court held that workers did not have a right
of self-defense against employers who commit unfair labor practices. Then, in
1965, in Textile Workers Union v. Darlington,239 the Supreme Court ruled that
management could lawfully cease the operation of a factory in retaliation against
workers who chose to unionize. Finally, in Lechmere Inc. v. NLRB,240 the Court
affirmed that employers could bring an action for trespass against union organizers
thus preventing them from accessing their property. By elevating “the state
common-law rights of employers over the federal statutory rights of workers”241
these decisions confirm that although “US labor law since the New Deal has
undeniably empowered US workers by guaranteeing them the right to strike . . . the
manner in which the law has been interpreted and applied has constrained that
right and the power it implies . . . regulating workers’ collective action in ways
designed to protect the continuity of production.”242
Protection of the right to strike at the state level for employees not covered by the
federal NLRA, reveals instead a more varied picture. Since the federal courts never
accepted the idea that the US Constitution included a minimum level of protection
for the right to strike,243 with which states were bound to comply in their
jurisdictions,244 individual states remained free to enact very diverse regulations.
The core focus of state legislations has been the regulation of the right to strike for
public employees.245 A majority of states passed legislation that “forbid government
employees to strike. In most states whose statutes are silent on the subject, the
courts have ruled that strikes by government employees are illegal.”246 At the same
time, some states legalized strike action for public employees. In 1985, for instance,
in the case of County Sanitation District v. Los Angeles County Employee Associ-
ation,247 the Supreme Court of California “overturned the state’s common law ban
on public employees strike”248 as incompatible with the state constitution. The
recent events that occurred in Ohio—where a contentious total strike ban on
238 306 U.S. 240 (1939). 239 380 U.S. 263 (1965). 240 502 U.S. 527 (1992).
241 Pope (n 235) 519. 242 McCammon (n 208) 223.
243 This position has been persuasively advanced by several academics. See James Grey Pope, “The
Right to Strike Under the United States Constitution,” Rutgers Schools of Law Research Paper No. 66,
2007 (surveying the arguments in favor of constitutional protection of the right to strike to be enforced
against the states in the XIII Am. Involuntary Servitude Clause, in the XIV Am. Due Process Clause,
and in the I Am. principle of freedom of association). See also Archibald Cox, “Strikes, Picketing and
the Constitution” (1950–51) 4 Vanderbilt Law Review 574.
244 See U.A.W. Local 232 v. Wisconsin Employment Relations Board, 336 U.S. 245 (1949) (holding
that the XIII Am. did not prohibit the state of Wisconsin from outlawing intermittent unannounced
strikes); Lyng v. Auto Workers, 485 U.S. 360 (1988) (holding that the I Am. did not prohibit a federal
statutory provision denying food stamps to the families of workers on strike).
245 See Craig Olson, “Strikes, Strike Penalties and Arbitration in Six States” (1986) 39 Industrial
National Labor Relations Act Been a Good Model?” (1985–86) 38 Stanford Law Review 1097, 1109.
247 38 Cal. 3d 564 (1985) cert. denied 474 U.S. 995 (1985). 248 Pope (n 243) 28.
172 The Right to Strike
public employees was passed by the state legislature in March 2011249 and repealed
by popular referendum in November 2011250—make it clear that major contro-
versies still surround the regulation of the right to strike for public employees in
many US states.
In conclusion, the experience of the US in the protection of the right to strike
reveals an evolving pattern. The regulation of industrial action originally fell
under the general welfare powers of the states. For the first three decades of the
20th century, however, the free market jurisprudence of the federal courts
represented a major challenge to the effective protection of labor unions’ rights.
Ironically, in Wolff Packing the Supreme Court quashed a strike ban as incom-
patible with the Fourteenth Amendment to the US Constitution and today that
decision “remains available as authority for the proposition that there is a
constitutional right to strike [in the US].”251 The Wagner Act recognized the
right to strike as fundamental to the process of collective bargaining and—with
the goal of securing the “free flow of goods in [interstate] commerce”252—
introduced a heightened level of federal protection of industrial action. However,
over time the protection of the right to strike at the federal level has been
significantly watered down by congressional amendments and judicial rulings.
Steadily, “State common law rights of property and contract were elevated above
federal statutory rights of self-organization and collective action through Lochner-
era notions of economic due process and interstate commerce.”253 At the same
time, the Supreme Court interpreted federal law as pre-empting the field of
industrial relations and left states competent only to regulate strikes by public
employees and other workers not covered by the NLRA. Thus, nowadays the
right to strike enjoys a limited protection at the federal level, while states are
endowed with significantly diverging standards in the areas falling outside the
scope of federal law.
249 See 129 Senate Bill n 5 (Oh. 2011) (“An Act to make various changes to laws concerning public
employees, including collective bargaining, salary schedules and compensation, playoff procedures, and
leave”).
250 Sabrina Tavernise, “Ohio Turns Back a Law Limiting Unions’ Rights,” The New York Times,
strike, its jurisprudence has placed important limits on the effective protection of
industrial action. This situation presents “striking parallels”254 with the dynamics
that Europe has recently experienced due to the challenge posed by Viking and
Laval on the effective protection of the right to strike at the state level. At the same
time, both in the US and in Europe, the jurisprudence of the highest courts has
been influenced by the fact that, while the protection of social rights remained
primarily a competence for the member states, the US Constitution and the
EU Treaties mandated the economic project of the creation of an internal market
and secured the mobility of economic actors. Hence, while the US Supreme Court
and the ECJ recognized that their basic laws protected a form of industrial action,
they interpreted this right with the aim of securing simultaneously the successful
functioning of an interstate common market.
On the other hand, major differences exist between the historical experience
of the US and contemporary Europe. First, while it is fair to maintain that the
jurisprudence of the US Supreme Court in the first three decades of the 20th
century was driven by an ideological, laissez-faire interpretation of the economic
constitution of the US, it seems hard to argue that the same engine moves the
ECJ today. In fact, as emphasized in section 2, the jurisprudence of the ECJ in
the field of law governing the right to strike reflects a possible advancement
compared to a variety of state regimes, with low or no tradition of protection
of collective industrial action.255 More importantly, however, a comparison
between the US experience and that of contemporary Europe underlines how
in the former the challenge of ineffectiveness that characterized the protection of
labor rights has over time been addressed in the context of the evolution of the
US constitutional system. During the New Deal, the US Congress, in the
exercise of its commerce powers, enacted a major piece of federal legislation—
the NLRA—which set out a coherent framework for the protection of the right
to strike for employers and employees operating in the national market in lieu of
the standard set by the US Supreme Court. Over time, the Wagner Act was
weakened by judicial interpretations and congressional amendments, reflecting
the malleability of rights standards in a multi-layered system. Nevertheless, at
the time of its enactment the NLRA represented a successful way to address the
challenge of ineffectiveness raised by judicial review of social rights under free
movement rules.256
In this section I will consider whether a number of recent developments in the
legal systems of the EU and the ECHR could formulate a possible response to the
challenge of ineffectiveness in the protection of the right to strike raised by the case
law of the ECJ. However, the transformations that are taking place in Europe seem
to follow a path different from that of the US. Rather than being based on
254 Danny Nicol, “Europe’s Lochner Moment” [2011] Public Law 308, 329.
255 See Allan Rosas, “Finis Europae socialis?” in Mélanges en l’honneur de Jean Paul Jacqué (Dalloz,
2010) 591.
256 See also Gilles Trudeau, “La grève au Canada et aux Etats-Unis: d’un passé glorieux à un avenir
257 Demir & Baykara v. Turkey (No. 2), ECHR [2008] App. No. 34503/97 (GC).
258 Enerji Yapi-Yol Sen v. Turkey, ECHR [2009] App. No. 68959/01.
259 Demir & Bykara v. Turkey, ECHR [2006] App. No. 34503/97.
260 See Robin-Olivier (n 163) 384. 261 Demir (No. 2) (n 257) para 60.
Recent developments 175
262 Demir (No. 2) (n 257) para 76. 263 Demir (No. 2) (n 257) para 78.
264 Demir (No. 2) (n 257) paras 85–6. 265
Demir (No. 2) (n 257) para 97.
266 Demir (No. 2) (n 257) para 98. 267 Demir (No. 2) (n 257) para 107.
268 Demir (No. 2) (n 257) para 117.
176 The Right to Strike
a trade union.”269 The ECtHR thus concluded that there had been “a violation of
Article 11 of the Convention on account of the failure to recognise the right of the
applicants, as municipal civil servants, to form a trade union.”270
The ECtHR then moved to the second question raised by the applicants: the
compatibility with Article 11 ECHR of the decision by the Turkish Court of
Cassation to annul the collective agreement signed by the Tüm Bel Sen trade
union with the local municipality. The ECtHR reassessed its previous case law
on the substance of the right of association protected by Article 11 ECHR
and recalled that its jurisprudence had so far identified in Article 11 ECHR the
“following essential elements . . . : the right to form and join a trade union,
the prohibition of closed-shop agreements and the right for a trade union to
seek to persuade the employer to hear what it has to say on behalf of its
members.”271 In tune with a dynamic interpretation of the ECHR, however,
the ECtHR affirmed that:
This list is not finite. On the contrary, it is subject to evolution depending on particular
developments in labour relations. In this connection it is appropriate to remember
that the Convention is a living instrument which must be interpreted in the light of
present-day conditions, and in accordance with developments in international law, so as
to reflect the increasingly high standard being required in the area of the protection of
human rights.272
The ECtHR surveyed a number of international instruments concerning labor
standards and emphasized how the right to bargain collectively had gained increas-
ing protection under the International Labour Organization, Article 6(2) ESC,
as well as through relevant EU and domestic law and practice. Given these
developments, the ECtHR considered “that its case law to the effect that the
right to bargain collectively and to enter into collective agreements does not
constitute an inherent element of Article 11 should be reconsidered”273 and,
with a milestone statement, affirmed that: “having regard to the developments in
labour law, both international and national, and to the practice of Contracting
States in such matters, the right to bargain collectively with the employer has, in
principle, become one of the essential elements of the ‘right to form and to join
trade unions for the protection of [one’s] interests’ set forth in Article 11 of the
Convention.”274
In light of this ground-breaking conclusion, the ECtHR moved to examine
whether the interference with the applicants’ trade-union freedom resulting from
the annulment of the collective agreement by the Turkish Court of Cassation could
be regarded as justified under Article 11(2) ECHR. The ECtHR thus undertook a
new proportionality analysis of the action of the Turkish institutions. The ECtHR
accepted that, at the material time, the interference was prescribed by law and
269 Demir (No. 2) (n 257) para 120. 270 Demir (No. 2) (n 257) para 127.
271 Demir (No. 2) (n 257) para 145 (internal citations omitted).
272 Demir (No. 2) (n 257) para 146.
273 Demir (No. 2) (n 257) para 153 (internal citations omitted).
274 Demir (No. 2) (n 257) para 154.
Recent developments 177
281 Enerji (n 258) para 24. 282 Enerji (n 258) para 24.
283 Enerji (n 258) para 24. 284 Enerji (n 258) para 24.
285 Enerji (n 258) para 27. 286 Enerji (n 258) para 28.
287 Enerji (n 258) para 32. 288 Enerji (n 258) para 32.
289 Enerji (n 258) para 32.
Recent developments 179
Palmer, “Protecting Socio-Economic Rights Through the European Convention on Human Rights:
Trends and Developments in the European Convention on Human Rights” (2009) 2 Erasmus Law
Review 397.
293 See text accompanying n 111. 294 Barrow (n 291) 421.
295 See also Graziella Romeo, “Civil Rights v. Social Rights nella giurisprudenza della Corte europea
dei diritti dell’uomo: c’è un giudice a Strasburgo per i diritti sociali?” in Luca Mezzetti and Andrea
Morrone (eds), Lo strumento costituzionale dell’ordine pubblico europeo (Giappichelli 2011) 487.
296 Keith Ewing and John Hendy, “The Dramatic Implications of Demir and Baykara” (2010) 39
e.g., NURMT v SERCO, ASLEF v London and Birmingham Railway Ltd. [2011] EWCA Civ 226. For
an assessment of how this case took into account the new case law of the ECtHR, see Ruth Dukes,
“The Right to Strike under UK Law: Something More Than a Slogan?” (2011) 40 Industrial Law
Journal 302.
180 The Right to Strike
between the [ECJ] and the [ECtHR] case law concerning the right to collective
action.”299 Indeed, the ECJ and the ECtHR reached quite different conclusions in
their decisions, reflecting alternative understandings of the meaning of the right to
strike, of the scope of its protection, and of the limits to its exercise. However,
precisely the transformations that occurred in the case law of the ECtHR may lead
the ECJ to review its Viking and Laval jurisprudence on the right to strike.
The ECJ already recognizes the case law of the ECtHR as a guiding source of its
human rights jurisprudence.300 The impact of the decisions of the ECtHR on the
legal system of the EU would, in addition, increase after the entry into force of the
Accession Agreement of the EU to the ECHR.301 At the moment the EU “is not
yet . . . a party to the ECHR and therefore [is] not answerable directly to the
ECtHR.”302 Nevertheless, once the EU becomes a party to the ECHR, it seems
likely that the ECtHR will review the action of the EU institutions, including the
ECJ, for compatibility with the ECHR. By the same token, the ECtHR may
regard the standard for the protection of the right to strike developed by the ECJ
in Viking and Laval as falling short of the Enerji benchmark.303 As some have
argued, therefore, control by the ECtHR may force the ECJ into “aligning itself
to the [ECtHR] line.”304 If this were to happen, it seems clear that the trans-
formations that have taken place in the ECHR legal order could play a funda-
mental role in addressing the challenge of ineffectiveness produced by the
interaction between domestic laws and EU law in the field of the right to strike.
As Keith Ewing and John Hendy observed, Demir & Baykara and Enerji “provide
the best opportunity to clean up the mess left by the ECJ in the Viking and Laval
cases,”305 by strengthening labor rights vis-à-vis economic rules of free market
and competition.
Several caveats are in order, however, when anticipating the potential trans-
formative effect of the ECHR, and the dialogue between the ECJ and the ECtHR,
on the protection of the right to strike in the EU legal order.306 First, Enerji held
that Turkey (a non-EU member state) was in violation of the ECHR because its
legislation introduced a total ban on public employees taking strike action, hence
depriving the applicants of their rights under Article 11 ECHR tout court.
299 Jari Hellsten, “Trade Unions Rights Under the ECHR” in Niko Johanson and Matti Mikkola
(eds), Reforms of the European Social Charter 75 (Ministry for Foreign Affairs of Finland 2011) 75, 80.
300 See generally Sionaidh Douglas-Scott, “A Tale of Two Courts: Luxembourg, Strasbourg and the
Growing European Human Rights Acquis” (2006) 43 Common Market Law Review 629.
301 See generally Jean-Paul Jacqué, “The Accession of the European Union to the European
Convention on Human Rights and Fundamental Freedoms” (2011) 48 Common Market Law Review
995.
302 Ewing and Hendy (n 296) 40.
303 See Phil Syrpis, “The Treaty of Lisbon: Much Ado . . . But About What” (2008) 37 Industrial
with Laval and Viking” in Marie-Ange Moreau (ed), Before and After the Economic Crisis: What
Implications for the “European Social Model”? (Edward Elgar 2011) 217.
Future prospects 181
Nevertheless, Viking and Laval established a much less restrictive regime for the
exercise of the right to take industrial action. Workers were entrusted with a
fundamental right to strike but this was subject to a proportionality analysis, with
the goal of balancing the exercise of this right with other fundamental rights (e.g.,
freedom of movement). As such, it is not self-evident that the Viking and Laval
standard is necessarily incompatible with Article 11 ECHR. At the same time, in
Enerji the ECtHR acknowledged that the right to strike is not absolute—not to
mention the traditional margin of appreciation that the ECtHR recognizes to the
contracting parties in the application of the ECHR. Finally, the ECtHR classically
rules on the “vertical” obligations stemming from the ECHR: in Enerji the ECtHR
held that a state could not disproportionately restrict the Article 11 ECHR right of
a private party. It is uncertain, however, how Article 11 ECHR would operate in a
“horizontal” situation; that is, where a private party claims that its labor rights have
been restricted by another private party (e.g., a company) which also claims to be
exercising its fundamental rights (e.g., to pursue an economic activity).
In conclusion, in Demir & Baykara and in Enerji the ECtHR allowed the right to
bargain collectively and to take industrial action to become one of the essential
elements of the right to form and join a trade union for the protection of one’s
interests enshrined in Article 11 ECHR. These decisions represent a landmark
judicial development within the framework of the ECHR, with potentially far-
reaching consequences also for the EU. As Sophie Robin-Olivier has argued, “as a
result of the continuous extension of the rights granted to unions under Article 11,
in stark contrast to the . . . developments taking place in the EU, the ECtHR has
appeared as the major actor in the development of European labour law, from a
trade union perspective.”307 The jurisprudence of the ECtHR—and the accession
of the EU to the ECHR—may put pressure on the ECJ to revisit its case law on the
right to strike with beneficial effects for the challenge which currently characterizes
the European multilevel regime. Yet, as I have tried to emphasize, a number of
caveats need to be taken into account before concluding too rapidly that the ECJ
will inevitably follow (willy-nilly) the approach of the ECtHR. It may be that the
judicial transformations taking place at the ECHR level may not suffice to address
the challenge of ineffectiveness discussed in section 2. From this point of view,
perhaps, other transformations beyond judicial dialogue may be needed within the
EU legal order. The next section will discuss one of these.
The previous section analyzed several recent transformations taking place in the
case law of the ECtHR and emphasized their importance for the protection of the
right to strike in Europe. At the same time, section 5 warned about the ability of the
judicial dialogue between the ECtHR and the ECJ to offer a fully satisfactory
308 For a discussion of a possible constitutional response, i.e. modification of the EU Treaties, see
instead the proposal by the European Trade Union Council which advocated enactment of a special
EU Social Progess Protocol, protecting, inter alia, the right to strike in the EU, as an amendment to the
EU Treaties. See ETUC Proposal for a Social Progress Protocol, 18 March 2009.
309 See Joseph H. H. Weiler and Sybilla Fries, “A Human Rights Policy for the European
Community and Union: The Question of Competences” in Philip Alston et al (eds), The EU and
Human Rights (OUP 1999) 147.
310 Weiler and Fries (n 309) 157 (emphasis in original).
311 For an examination of the impact of the Lisbon Treaty in the field of social rights, see Stefano
Giubboni, “I diritti sociali nell’Unione europea dopo il Trattato di Lisbona. Paradossi, rischi ed
opportunità” [2011] Persona e Mercato 37.
312 Compare Jacques Ziller, Il nuovo Trattato europeo (Il Mulino 2008) 178 (arguing that Protocol
No. 30 “is totally useless: it cannot prohibit lawyers from requesting the application of the rights
codified in the Charter” (my translation: “è totalmente inutile: non può impedire agli avvocati di
richiedere l’applicazione dei diritti codificati nella Carta”)) with Catherine Barnard, “The ‘Opt-Out’
for the UK and Poland from the Charter of Fundamental Rights: Triumph of Rethoric over Reality?”
in Stefan Griller and Jacques Ziller (eds), The Lisbon Treaty: EU Constitutionalism without a
Future prospects 183
there seems to be another fundamental weakness related to the Charter: the Charter
was already taken into account by the ECJ, despite its lack of legal value, in Viking
and Laval and it is not clear how its change of status would now compel the ECJ to
reconsider its prior case law.313
In this section I explore another path and discuss the possibility that the most
effective way of protecting the right to strike in Europe might be through the
adoption of an EU regulation.314 In doing so, I seek to draw some cautionary
lessons from the comparative analysis of the US experience in the field of strike law.
As has been pointed out, the constitutional experience of the US during the Lochner
Era provides an anti-model for Europe;315 however, the New Deal also offers
several positive lessons.316 In particular, I will suggest that the adoption of an
“EU Wagner Act” may be a possible solution if Europe wants to avoid a “race to the
bottom” in the protection of social rights.317 In this light, I also analyze the recent
Commission proposal for a regulation on the exercise of the right to strike in the
context of the single market and underline both its strengths and weaknesses.
Obviously, the proposal for an EU regulation on the right to strike is controversial
and raises a number of questions about its legal and political feasibility. At the same
time, the same US example warns us against putting too much faith in the capacity
of a piece of legislation to address the tensions between social rights and a free
market in a federal system. Yet, despite this, I am convinced that it is valuable to
discuss the possibility of a regulation for the protection of the right to strike in the
EU by drawing insights from the US constitutional experience.318
The challenge that Europe is facing in the protection of the right to strike
is the consequence of the increasing impact of EU free market rules over the
national regulation of industrial relations. As Miguel Maduro has argued, “Euro-
pean economic integration . . . has generated pressures towards deregulation and
Constitutional Treaty? (Springer 2010) 257 (holding that the Protocol may “contain a genuine opt-out”
in the field of social rights).
313 See Syrpis (n 303) 232.
314 The argument in favor of EC intervention in the field of strike law finds some noble ancestors in
writings dating to the 1970s, although at that time EU action was largely conceived of as a form of
harmonization between national laws. See Antoine Jacobs, “Toward Community Action on Strike
Law?” (1978) 15 Common Market Law Review 133. My proposal does not pursue the goal of
harmonizing national laws but instead to establish a supranational standard for the protection of the
right to strike to be applied in transnational situations.
315 See Eliasoph (n 165) 467; Nicol (n 254) 308.
316 In this chapter I seek to explore how the US can provide useful signposts for Europe in tackling
the challenges of balancing free market and labor protection in a federalism-based system of govern-
ment. This, of course, does not imply that the US is a perfect system nor excludes that there may be
ways in which the US can learn from Europe in the protection of social rights. See e.g., Katrougalos
(n 166) 225.
317 Catherine Barnard, “Regulating Competitive Federalism in the European Union? The Case of
EC Social Policy” in Jo Shaw (ed), Social Law and Policy in an Evolving European Union (Hart
Publishing 2000) 49, 57.
318 On the caveats that must surround any exercise in legal transplants, see of course, Otto Kahn-
Freund, “On Uses and Misuses of Comparative Law” (1974) 37 Modern Law Review 1. As will be
explained later, however, the strong institutional similarities between the European and US constitu-
tional arrangements based on federalism, make possible the use of comparative sources in advancing
reforms de jure condendo.
184 The Right to Strike
challenged social standards and welfare.”319 Decisions such as Viking and Laval have
been hailed from a free market perspective320 but criticized from a labor law
perspective for the repercussions they produce at the national level and for their
interference with fundamental features of collective labor law and the industrial
relations of the states. In this context, however, it seems misplaced to complain that
the EU is violating “prerogatives of Member States”321 and to recall the good old days
in which nation-states were sovereign in regulating their industrial relations systems
without any interference from the EU.322 The tensions currently occurring in the
European multilevel arrangement oblige us to reconsider the strategy needed to take
social rights seriously. The problem today is not the existence of a transnational
common market in which people, goods, services, and capitals are free to move
unhindered. The problem is, rather, that the creation of a Europe-wide continental
market “has not been compensated for by social policies arising at the level of the
[EU].”323 The case of the right to strike demonstrates how national responses are no
longer conceivable in a multilevel architecture in which a transnational court can
umpire conflicts between federal free movement rules and state labor law guarantees.
State sovereigntism is no longer an option.324
This is where the genius of the New Deal emerges. In the US, the challenge of
combining a continental market in which commerce can flow freely with the need
to protect social rights (a need that the Great Depression had made ever more
pressing) was ensured through a transfer of competences to the federal government.
Bruce Ackerman has famously described the New Deal as a turning point in US
constitutional history—a constitutional moment even in the absence of constitu-
tional amendments.325 It is from the New Deal “that we date the modern
interventionist national government, with its comprehensive labor and welfare
policies, its extended web of national regulatory measures covering vital economic
sectors formerly outside the scope of federal controls.”326 As explained in section 4,
a major piece in the New Deal puzzle was the Wagner Act. The NLRA set up a
solid template for the regulation of labor–management relations, giving legislative
recognition to the right to strike for workers engaged in interstate commerce and
319 Miguel Poiares Maduro, “Striking the Elusive Balance Between Economic Freedom and Social
Rights in the EU” in Philip Alston et al (eds), The EU and Human Rights (OUP 1999) 449, 464.
320 See e.g., Frank Benyon, Direct Investment, National Champions and the EU Treaty Freedoms
the protection of fundamental rights at supranational level and who claim that member states should
remain sovereign in deciding how to protect fundamental rights. There, I criticized that position as
failing to understand the changing European reality and to appreciate the importance of a shift of
paradigm in devising appropriate responses to the challenges of protecting fundamental rights in multi-
layered human rights arrangements.
323 Maduro (n 319) 464.
324 Cappelletti and Golay (n 1) 349 (stating that “Europe’s best future, indeed perhaps the only
327 One of the major contemporary weaknesses of the NLRA is due to the malfunctions of the
NLRB. Because of its increased politicization, the NLRB has diminished its capacity to solve labor–
management disputes effectively. In addition, since members of the NLRB are nominated by the
President with the consent of the Senate, political opposition to presidential nominees has threatened
the NLRB with a lack of the quorum needed to decide cases. See New Process Steel v. NLRB, 130
U.S. 2635 (2010) (holding that the NLRB needs three members out of five to be able to deliver
decisions in labor–management disputes). See also William Gould IV, “Crippling the Right to
Organize,” The New York Times, 17 December 2011, A25 (discussing risks of paralysis in the work
of the NLRB for lack of a quorum).
328 Sunstein (n 167) 51. 329 Barnard (n 164) 606.
330 Claire Kilpatrick, “Internal Market Architecture and the Accommodation of Labour Rights: As
331 Kilpatrick (n 330) 2–3. 332 Kilpatrick (n 330) 11. 333 COM(2012) 130 final.
334 Commission Proposal, Art 1(1). 335 COM (2012) 130 final, 8.
336 COM (2012) 130 final, 9.
Future prospects 187
337 See text accompanying n 101. 338 COM (2012) 130 final, 11.
339 See also Brian Bercusson, “The Trade Union Movement and the European Union: Judgment
Day” (2007) 13 European Law Journal 289 (clarifying that ex Art 137(5) TEC was invoked by states
with an advanced degree of protection for social rights).
340 The Commission Proposal, Art 3(2), in particular, emphasized the proactive role of the social
partners at the EU level, stating that “management and labour at European level may, acting within the
scope of their rights, competences and roles established by the Treaty, conclude agreements at Union
level or establish guidelines with respect to the modalities and procedures for mediation, conciliation or
other mechanisms for the extrajudicial or out-of-court settlement of disputes . . . with a cross-border
character.”
188 The Right to Strike
proper contractual regime of alternative dispute resolutions in transnational labor
disputes.341
Overall, therefore, the Commission’s proposal raised a number of critical ques-
tions, although it could be regarded as consistent with the argument advanced in
this chapter.342 The decisions of the ECJ in Viking and Laval demonstrated that
insulating national systems of industrial relations from the impact of EU law is no
longer an option.343 The interaction between domestic and supranational law is
now such that any meaningful attempt to counterbalance the pressures emerging
from EU free market rules must also take place at the EU level. As such, the
enactment of an “EU Wagner Act” would acknowledge that only an EU legislative
measure regulating the exercise of transnational industrial action can offer a
satisfactory answer to the challenge of ineffectiveness posed by Viking and Laval.
Arguments in favor of an EU social policy attempt to reintroduce political control
of the economic sphere at the supranational level. As with the US federal govern-
ment during the New Deal, “The [EU] would become the relevant level for the
establishment and protection of social rights.”344 At the same time, the adoption by
the EU political branches of an act regulating the right to strike in cross-border
situations would also cast a form of social legitimacy in an area which de facto is
now subject to judge-made EU standards. It seems “uncontrovertible that the
political institutions may adopt measures of human rights in all those fields
which are controlled materially by Community law, either under exclusive or
concurrent jurisdiction, and in which the object of the human rights legislation
would be either Community institutions or complementary to Community laws
and policies.”345
However, because of its controversial content in a policy area where member
states have high political stakes, the Commission proposal generated strong nega-
tive reactions.346 Moreover, the proposal triggered, for the first time since the entry
into force of the Lisbon Treaty, the so-called “yellow card procedure” pursuant to
341 Commission Proposal, Art 3(1), allowed those member states which already had mechanisms of
alternative dispute resolution to use them where the labor–management dispute was transnational in
character. The proposed regulation did not, however, require those member states which do not yet
have mechanisms of alternative dispute resolution to introduce them. As a consequence, it would seem
that a certain asymmetry was likely to exist between the member states until the social partner had
regulated the field with agreements at the EU level.
342 For a more detailed examination of the Commission’s proposal, see Federico Fabbrini, “Le droit
de grève dans un marché commun: les défis européens à la lumière de l’expérience américaine” [2012]
Revue française des affaires sociales 151.
343 See also Mia Rönnmar, EU Industrial Relations v. National Industrial Relations. Comparative and
of the right to strike in the single market, the French Minister of Labor published a press release in which
it criticized the formulation of Art 2 of the Commission Proposal for being insufficiently protective of
collective labor rights and announced that France would veto the Commission Proposal as it then stood.
See Ministère du Travail, de l’Empoli et de la Santé, Communiqué de Presse, “Des Propositions de la
Commission européenne sur le détachement des travailleurs,” 21 March 2012, available at <http://
www.travail-emploi-sante.gouv.fr/actualite-presse,42/communiques,95/des-propositions-de-la-com
mission,14739.html>.
Future prospects 189
the Subsidiarity Protocol, which requires the Commission to review its draft when
at least one-third of the national parliaments advance a reasoned opinion that the
Commission proposal is incompatible with the principle of subsidiarity.347 As
Katarzyna Granat and I have argued elsewhere, in this case the national parliaments
exceeded their powers, and failed to identify a problem of subsidiarity in the
Commission proposal—which, in fact, addressed a matter, cross-border labor
disputes, which by definition falls outside the legislative capacity of a single member
state.348 Yet, on 12 September 2012, the Commission communicated its decision
to withdraw the proposal for a regulation on the exercise of the right to strike.349 In
a letter to national parliaments, the Commission stated that it still considered the
proposal as compatible with the principle of subsidiarity and that the reason for its
withdrawal was the lack of necessary future political support for the proposal in the
European Parliament and the Council.350
While the decision of the Commission to withdraw its proposal can be criticized
for the wrong signal it sends to national parliaments concerning their role under the
Subsidiarity Protocol,351 it reflects the difficulty of adopting a legislative framework
for the protection of the right to strike at the EU level when—as in the case of the
Commission proposal, which was based on Article 352 TFEU—law-making
requires the unanimous consent of the member states voting in the Council.
Despite the traditional “pro-labour” role played by the European Parliament,352
given the divisions between EU member states which are willing to enhance the
protection of the right to strike at the EU level and member states, like the UK,
which greatly fear any such development,353 the existence of a right of veto
constitutes an almost insurmountable obstacle to the capacity to adopt legislation
347 See Art 6 of Protocol No. 2 on the Application of the Principle of Subsidiarity and Propor-
tionality, OJ 2010 C 83/206 (stating that every legislative proposal of the Commission—and of the
other EU institutions—shall be submitted to the national parliaments, which are empowered to review
the compatibility of the proposal with the principle of subsidiarity). See also Jean Victor Louis, “The
Lisbon Treaty: The Irish ‘No’: National Parliaments and the Principle of Subsidiarity—Legal Options
and Practical Limits” (2008) 4 European Constitutional Law Review 438.
348 Federico Fabbrini and Katarzyna Granat, “ ‘Yellow Card but No Foul’: The Role of National
Parliaments Under the Subsidiarity Protocol and the Commission Proposal for an EU Regulation on
the Right to Strike” (2013) 50 Common Market Law Review 115 (arguing that the role of national
parliament under Protocol No. 2 should be limited to a review of the principle of subsidiarity and not
extend to questions of proportionality, legal basis, or political opportunity; and explaining how, in the
case at hand, none of the reasoned opinions of the national parliaments raised a question of
subsidiarity).
349 See the letter from the President of the European Commission, Mr. Manuel Barroso to the
President of the European Parliament, Mr. Martin Schulz, Memo 12/661, 12 September 2012.
350 See, as an example, the letter of 12 September 2012 from the Commission to the Italian Senato,
Ares(2012)1058907.
351 See further Katarzyna Granat, “ ‘Yellow Card’ for the Commission Proposal on the Right to
Barnard (n 312). See also Fritz Scharpf, “The European Social Model: Coping with the Challenges of
Diversity” (2002) 40 Journal of Common Market Studies 645.
190 The Right to Strike
in the field.354 This sharply contrast with the reality of the US system of govern-
ment, where legislation at the federal level requires approval by simple majority
voting in the House, qualified majority (i.e. filibuster-proof majority) in the
Senate,355 and the assent of the President. It is for this reason that arguments
could be made for a possible alternative legal basis for an EU regulation on the right
to strike, which does not demand unanimity.356 In this regard, neither the Charter
nor the social policy chapter of the TFEU seems to provide significant help—
because of the textual prohibition on basing new EU competences on those
instruments.357
The US experience, however, may once again suggest a way forward. The
Wagner Act, in fact, was enacted by the US Congress in the exercise of its
commerce powers, that is, under the general power that the federal legislature has
“To regulate commerce . . . among the several states.” As Jim Pope has explained,
“This was the result of a conscious choice by the bill’s creator, Senator Robert
Wagner of New York. Labor leaders and others had urged the Senator to ground his
bill not on Congress’s commerce power but on its human rights powers . . .
Philosophically, Senator Wagner took a similar view of his bill . . . But Senator
Wagner adhered to the commerce power as a constitutional justification.”358 This
was politically the wisest strategy to ensure that the statute would obtain sufficient
support throughout the legislative process and later stand review before the
Supreme Court (which had already struck down the NIRA as an unconstitutional
exercise of congressional power).359 This choice, of course, had its drawbacks.360
However, the NLRA ensured that labor rights would be better protected than
under the prior jurisprudence of the Supreme Court on the understanding that
“Experience has proved that protection by law of the right of employees to organize
and bargain collectively safeguards commerce from injury, impairment, or inter-
ruption”361 rather than damages it.
As such, the EU could adopt a regulation on the right to strike on the basis of the
EU competence to regulate the internal market, which requires only qualified
majority voting in the Council.362 The general provision of Article 26 TFEU
354 For a classic analysis of the difficulties that arise when law-making is subject to a unanimity rule,
see Joseph H. H. Weiler, “The Transformation of Europe” (1991) 100 Yale Law Journal 2450.
355 See Catherine Fisk and Erwin Chemerinsky, “The Filibuster” (1997) 49 Stanford Law Review
181 (explaining how in the working of the US Senate a supermajority principle is effectively at work
due to the requirement to have 60 votes, out of 100, to bring a measure to a vote over the objection of
any senator).
356 See Fabbrini (n 342) 168–9.
357 See Art 51(2) (stating that the CFR “does not extend the field of application of Union law
beyond the powers of the Union or establish any new power or task for the Union, or modify powers
and tasks as defined in the Treaties”) and Art 153(5) TFEU (stating that “The provisions of this Article
shall not apply to pay, the right of association, the right to strike or the right to impose lock-outs”).
358 Pope (n 235) 524. 359 See Polenberg (n 213) 68.
360 Pope (n 235) 524 (arguing that as a consequence of the legal basis of the NLRA “each exercise of
the NLRB’s authority had to be justified not in terms of labor freedom, but as an effort to prevent
disruptions to commerce”).
361 29 U.S.C. } 151 (emphasis added).
362 For a more detailed proposal in this regard, see Fabbrini (n 342) 151.
Future prospects 191
and the specific clauses on the free movement of goods and services and freedom of
establishment could supply sufficient justification for the EU to legislate in this
field.363 The example of the Posted Workers Directive shows that it is possible to
resort to a legal basis in the EU Treaties dealing with the internal market to ensure
also the protection of labor rights:364 indeed, as the Directive clarifies “promotion
of the transnational provision of services requires a climate of fair competition and
measures guaranteeing respect for the rights of workers.”365 At the same time, it is
well known that the issue of strike action loomed large during the debates leading to
the adoption of the Monti Regulation366 on the functioning of the internal market
in relation to the free movement of goods among the member states.367 If the EU
Commission were to propose a regulation on the protection of the right to strike
based on internal market powers, this would open the way for its possible adoption
by qualified majority voting. Nevertheless—as long as Article 153(5) TFEU
textually excludes the field of strike law from the EU harmonization competences
in the social sphere—the enactment of legislation in this field, in the absence of
widespread or unanimous political consensus among the states, might trigger legal
proceedings before the ECJ for ultra vires action by the EU institutions by the states
outvoted in the Council.368
In addition, the warnings of the US experience concerning the enactment of a
federal overhaul in the field of industrial relations should not be forgotten. The
Wagner Act designed a coherent and effective framework for the regulation of the
right to strike for workers engaged in interstate commerce, but it did not prevent
the subsequent legislative and judicial developments that dealt a heavy blow to the
protection of the right to collective action in the US. An EU Wagner Act would not
be immune from similar dynamics. Some of these risks could perhaps be prevented
by careful drafting of the EU regulation in order to ensure specific labor protection
(e.g., codifying a prohibition for employers to fire or permanently replace striking
workers or defining in a clear manner the room permitted for sympathy strikes
etc.). However, it is widely recognized that legislation is often the result of political
bargaining and incompletely theorized agreements between institutional actors.369
363 For an argument in favor of a broad reading of the EU internal market legislative power see,
Bruno de Witte, “A competence to protect: The pursuit of non-market aims through internal market
legislation” in Phil Syrpis (ed), The Judiciary, the Legislature and the EU Internal Market (CUP 2011)
25.
364 See Kilpatrick (n 330) 4. 365 Council Directive 96/71/EC, recital 5.
366 Council Regulation 2679/98/EC, OJ 1998 L 337/8. 367 See Clauwaert (n 110) 630.
368 The existence of Art 153(5) TFEU generates in itself a major difference between the legal
situation of contemporary Europe and that of the US prior to 1935. When the Wagner Act was
adopted, of course, no express provision of the US Constitution excluded the competence of the federal
government in the field of industrial action. Yet, the distinction between the two systems should not be
overrated. When in 1935 Congress enacted the Wagner Act, the authoritative interpretation of the US
Constitution offered by the US Supreme Court in Schechter Poultry Corp. v United States, 295 U.S. 495
(1935) clearly excluded the federal government from resorting to the Commerce Clause to regulate
industrial action. (invalidating the NIRA as an unconstitutional exercise of federal powers in the field of
industrial relations.)
369 I draw and readapt the expression “incompletely theorized agreements” from Cass Sunstein,
7. Conclusion
The purpose of this chapter has been to analyze the protection of the right to strike
in the European multilevel human rights architecture and to examine the dynamics
that emerge from the overlap and interplay between multiple standards for the
protection of fundamental rights. As I have argued, the emergence at the EU level
of a judge-made standard for the protection of the right to strike has created a
challenge of ineffectiveness for those member states which ensure a vanguard
protection of collective labor rights. As section 2 explained, the EU member states
have traditionally offered different models for the regulation of industrial action:
while some states have very protective labor law regimes which recognize the right to
strike as a constitutional right, others subject industrial action to more limitations—
either through social partners’ agreements or through a proportionality review—not
to mention the UK, where strike action is not even regarded as a right but is simply
a statutory immunity from common law principles. Beyond this fragmented picture,
however, the impact of EU law in the field of strike law is becoming increasingly
significant. As detailed in section 3, in Viking and Laval the ECJ recognized that
the right to strike is a fundamental right in the EU constitutional order. However, to
uphold the continuing functioning of the EU common market, the ECJ subjected
the right to strike to severe restrictions that have produced tensions with the
standards for protection of the right to collective action existing in many member
states.
The interaction between national and EU law in the field of labor relations has
thus exposed a challenge of ineffectiveness. Yet, this state of affairs is not a sui generis
phenomenon. Rather, as underlined in section 4, striking a balance between state
labor rights and federal free market rules has also long proved problematic in the
US. In the early 20th century, state social legislation was subject to judicial review
by the federal judiciary and, although the Supreme Court recognized the existence
of a constitutional right to strike, it deprived this right of much meaning in order to
ensure that interstate commerce would not be impaired. The New Deal, however,
profoundly changed the status quo by acknowledging that if social rights were to be
taken seriously vis-à-vis free market rules, this had to be done at the federal level.
The Wagner Act established a comprehensive system of labor–management rela-
tions and codified a statutory right for workers to go on strike. The Wagner Act was
later interpreted to pre-empt state legislation, but in the field not covered by federal
laws the states have maintained very diverse regulatory regimes for industrial action.
Despite its slow weakening through legislative amendments and judicial construc-
tions, today the Wagner Act remains the basic framework for the regulation and
protection of the right to strike at the federal level in the US.
In light of the US experience, in section 5 I explored the implications of the most
recent transformations taking place in the case law of the ECHR. In the recent
Demir & Baykara and Enerji decisions, the ECtHR acknowledged that Article 11
ECHR protects a right to collective bargaining and collective action. These mile-
stone decisions opened a new perspective on the protection of strike action at the
European level and could have a major influence on the ECJ. After the accession of
the EU to the ECHR, the ECJ will most likely be subject to review by the ECtHR
for compliance with ECHR standards. As a consequence, it could be envisaged that
the ECJ will revise its Viking and Laval jurisprudence and align itself to the new
labor-protective case law of the ECtHR. Yet, as I cautioned, it is difficult to predict
whether this judicial dialogue will necessarily push the ECJ to change its approach
as several factors distinguish the context and the content of the rulings of the two
European supranational courts. If this is the case, then other solutions to the
challenge of ineffectiveness that emerge from the interaction between state and
EU law would have to be considered. To this end, in section 6 I discussed the
possibility of the EU enacting a legislative measure that democratically regulates the
contours of transnational industrial action.
As things currently stand in Europe, the exercise of collective action in industrial
conflicts with a cross-border dimension is subjected to the judge-made standard
194 The Right to Strike
developed by the ECJ in Viking and Laval. Since states cannot go beyond the
ceiling of protection of the right to strike provided at the EU level, it has been
suggested that only a legislative reform at the supranational level would be capable
of striking a new balance between free market rules and social rights guarantees
which is more protective of the right to collective action. It is in this light that in
March 2012 the Commission proposed a regulation on the exercise of the right to
take collective action in the context of the freedom of establishment and the
freedom to provide services. The Commission proposal, which was based on Article
352 TFEU, raised a number of substantive questions but reflected the awareness
that, as the regulation of transnational industrial action is now set by the ECJ’s case
law on free movement, a fortiori the EU institutions which enjoy the legitimacy
to adopt internal market legislation in the EU system of government should be able
to regulate the field. However, strong opposition to the proposal prompted the
Commission to withdraw it in September 2012, testifying to the difficulty of
adopting EU legislation in this field.
Yet, a cautionary lesson that can be learnt from a comparison of the US
experience is that no successful protection of labor rights can be ensured in a
federalism-based constitutional arrangement as long as the tension between social
rights and the free market corresponds with conflicts between, on the one hand,
state laws and practices and, on the other, federal rules and principles. If social
rights are to be taken seriously in Europe, this requires a new foundation for the
protection of social rights at the EU level. In the US, the Wagner Act offered, at
least for some time, an effective tool for reconciling the supremacy of federal
law with the need to protect core social values such as the right to collective action.
In the case examined in this chapter, in the end it seems that the challenge
of ineffectiveness characterizing the field of strike law and emerging from the
complex interaction between a plurality of fundamental rights standards in Europe
can be addressed only by enhancing the legislative mechanisms for the protection of
collective labor action in the EU.
5
The Right to Abortion
1. Introduction
Abortion laws in Europe and the United States (US) have increasingly converged
over the last 30 years. In the early 1980s, the refrain of many comparative lawyers
was that the US stood alone among Western countries in recognizing a broad
individual right to the voluntary interruption of pregnancy. Conversely, most
European states subjected abortion to stricter regulations or prohibited it tout
court.1 Already during the mid 1990s, however, scholars emphasized that the US
was retreating from its earlier, very liberal, position by permitting states to restrict a
woman’s right to an abortion.2 Simultaneously, European countries were widening
the conditions under which women could choose whether to terminate their
pregnancies, often under the pressures of the rising supranational laws.3 An assess-
ment of the abortion laws on each side of the Atlantic at the end of the 2010s
highlights an even clearer pattern of convergence. In the US, the federal government
and many state legislatures have enacted laws that further constrain women’s access
to abortion.4 These measures have gradually pushed back the time period during
which a woman can obtain an abortion, from the end of her second trimester to
somewhere closer to the end of her first trimester.5 Meanwhile, a number of member
states of the European Union (EU) have further liberalized their abortion legislation
over the last few years.6
The purpose of this chapter is to analyze the constitutional dynamics at play in
the field of abortion law in the European multilevel human rights architecture in
1 See Mary Ann Glendon, Abortion and Divorce in Western Law (Harvard UP 1989). See also
Marie-Thérèse Meulders-Klein, “Vie privée, vie familiale et droits de l’homme” (1992) 44 Revue
internationale de droit comparé 767.
2 See Laurence Tribe, Abortion: The Clash of Absolutes (Norton 1990) 197; Mark Tushnet,
[2008] Supreme Court Review 1, 46 (arguing that in the long run “the hypothesis that federal
constitutional protection [of abortion] will eventually recede toward an end-of-the-first-trimester
benchmark, after which any legal abortion will require case-by-case medical review and approval,
remains the historical best guess as to how the controversy will reach stasis”).
6 For a recent comparative assessment of abortion rights worldwide, see Reva Siegel, “The Con-
stitutionalization of Abortion” in Michel Rosenfeld and András Sajó (eds), The Oxford Handbook of
Comparative Constitutional Law (OUP 2012) 1057.
196 The Right to Abortion
comparative perspective with the US federal system. Other works already deal with
the similarities and differences between the European and US approaches to the
complex questions raised by abortion.7 These scholarly assessments, however,
usually compare European countries individually with the US. When these assess-
ments consider the jurisprudence of supranational jurisdictions—the European
Court of Human Rights (ECtHR) or the EU Court of Justice (ECJ)—it is mainly
to better explain the internal legal framework of a specific European state. In this
chapter, instead, I plan to take into account the European system as a whole. In
particular, the aim of this chapter is to examine the dynamics that emerge in the
protection of the right to abortion from the interaction between standards existing
at the level of the member states, and those developing at the level of the EU and
the European Convention on Human Rights (ECHR). Therefore, this chapter
analyzes the ways in which the complex interaction among national and trans-
national norms and institutions in Europe affects abortion law by using the
experience of the US—with the interplay between state and federal law—as a
mirror to explore the European reality.
As I argue, EU member states have traditionally devised very diverse regimes for
the protection of the right of a woman to terminate her pregnancy. While the
decriminalization of abortion has steadily advanced in a majority of EU member
states, a group of EU countries is still endowed with very tight abortion rules,
banning abortions in almost all cases except when necessary to save the life of the
woman. During the last two decades, however, the ECJ and the ECtHR have
increasingly subjected state abortion laws to scrutiny for compatibility with the
standards for protection of fundamental rights of the EU and ECHR. The growing
impact of EU and ECHR law in the field of abortion has generated tensions in the
domestic legal systems which restrict abortion. In a slow but incremental process,
the ECJ and the ECtHR have raised the minimum guarantees that states must
respect in the regulation of abortion, putting under pressure those member states
that have less permissive regimes in the area of reproductive choice. As a result, the
interaction between state and transnational standards in the area of abortion rights
has challenged the consistency of domestic regimes falling below the supranational
floor, while leaving states with a more advanced degree of protection for the right to
abortion free to go beyond that minimum.
As the chapter underlines, a comparative assessment of the US constitutional
experience reveals analogous constitutional dynamics. Also, in the US federal
system a challenge of inconsistency has emerged due to the interplay between
state and federal rules. Abortion regulations used to vary greatly among the states in
the US until the 1970s. In the milestone 1973, Roe v. Wade decision,8 however, the
7 For a comparison of abortion law and politics in the US and a selected number of European
countries, see Mauro Cappelletti and William Cohen, Comparative Constitutional Law (Bobbs-Merill
1979); Vicki Jackson and Mark Tushnet, Comparative Constitutional Law (West Group 1999) 1, 140;
Machteld Nijsten, “Abortion and Constitutional Law: A Comparative European-American Study,”
EUI unpublished Ph.D. thesis, 1990.
8 410 U.S. 113 (1973).
Introduction 197
9 ECHR [2010] App. No. 25579/05 (GC). 10 ECHR [2011] App. No. 27617/04.
11 ECHR [2012] App. No. 57375/08.
198 The Right to Abortion
and its binding Charter of Fundamental Rights (Charter) and will seek to advance a
normative argument in favor of greater protection for abortion rights at the
supranational level in Europe. In a nutshell, I will emphasize how the existence
in some EU states of strict criminal bans on abortion, coupled with the possibility
for pregnant women to escape the prohibition by travelling to another EU state
where abortion is permitted, has discriminatory effects upon well-off and low-
income women, raising serious questions of equality. In discussing future alterna-
tive scenarios for the European multi-layered abortion regime, therefore, I will
argue for the creation of a system of “soft pluralism,” with stricter supranational
review of domestic abortion laws, as the preferred option for reconciling the
dilemmas of state identity and women’s equality. At the same time, also in light
of the comparison with the US system, I will emphasize the risks of this approach
and its legal feasibility.
The chapter proceeds as follows. Section 2 maps the European abortion laws,
surveying the major variations that exist between the EU member states and their
historical and cultural reasons. Section 3 describes the growing influence that
the EU and the ECHR exercise on domestic abortion laws and highlights the
tensions that emerge from this overlap. During the last two decades, the ECJ and
the ECtHR have steadily broadened the supranational constraints operating in the
field of abortion, creating pressures on those legal systems with restrictive bans on
abortion. Section 4 argues that the challenge of inconsistency at play in the
European multilevel human rights architecture is not sui generis and explains how
comparable dynamics have also characterized the US federal system because of the
interplay between state regulation of criminal and family law and federal constitu-
tional rights. Section 5 then analyzes the recent decisions of the ECtHR in A., B. &
C. v. Ireland and subsequent cases, and evaluates their implications for the protec-
tion of abortion rights in Europe. Finally, section 6 discusses the impact in the field
of abortion of the entry into force of the Lisbon Treaty and the Charter, and
addresses the normative question whether it is possible in Europe to conceive of an
abortion regime which is respectful of the identity of the member states but
simultaneously sensitive to the need to avoid discrimination in access to abortion
services between women who are well off and those who are poor.
Before beginning the analysis, a caveat is called for: I am aware that when dealing
with a controversial topic such as abortion, it is difficult for an author to resist the
influence of his or her personal conceptions regarding the serious moral questions
raised by the abortion issue. From this point of view, the very fact that I formulate
the issue as a “woman’s right to an abortion” reveals my inclination toward a liberal
position, which supports the protection of abortion12—a position with which
pro-life advocates would certainly disagree. Having revealed my subjective view-
point on the moral issue presented, I shall stress that this is not liable to affect
the overall research. At its core, this chapter is about the constitutional dynamics
12 For a classical liberal argument in favor of a woman’s right to choose whether to seek an abortion,
see Ronald Dworkin, Life’s Dominion: An Argument About Abortion, Euthanasia and Individual
Freedom (Vintage 1994).
Context 199
13 For an overview of abortion regulation in the EU member states, see generally Caroline Forder,
18 See Bundesgesetzblatt No. 60/1974 (Austria). The Act, which amended the Strafgesetzbuch, was
upheld by the Verfassungsgerichtshof in its decision of 11 October 1974, VfGH 7400—JBL 1974.
19 See text accompanying nn 48–51. 20 See text accompanying nn 76–9.
21 See text accompanying nn 56–62.
22 Joyce Outshoorn, “Policy-Making on Abortion: Arenas, Actors and Arguments in the Nether-
lands” in Dorothy McBride Stetson (ed), Abortion Politics (Routledge 1996) 205.
23 See Perrine Humblet et al, “Developments in Abortion Policy in a Context of Illegality: The
Belgian Case from 1971 until 1990” (1995) 6 European Journal of Public Health 288.
24 See Nomos (1978: 821) (Greece).
25 See Belén Cambronero-Saiz et al, “Abortion in Democratic Spain” (2007) 15 Reproductive
Toth (ed), Constitution for a Disunited Nation: Hungary’s New Fundamental Law (Central European
University Press 2012), 143.
Context 201
In light of the differences existing among the various abortion laws in Europe, it
is possible to classify national abortion legislations in four models placed on a
continuum from a more “permissive” to a more “restrictive” regime. Although
several criteria are in the abstract possible to identify these regulatory models, I will
here consider mainly the following factors:36 first, whether a legal system recognizes
the right of a woman voluntarily to terminate her pregnancy; secondly, the time
limit within which a termination can be obtained; thirdly, whether special proce-
dural steps are required to obtain an abortion; and fourthly, the nature of those
procedural steps (e.g., medical advice or preliminary counseling). In this way, it will
be possible to distinguish three model regimes in which abortion is permitted from
a fourth, alternative, model of regulation which instead prohibits abortion tout
court, save in limited, exceptional circumstances. In this last regulatory model, the
right to life of the unborn is regarded as paramount. As a consequence, women are
denied any right to choose whether to terminate their pregnancies.
The UK has a fairly liberal legislative model for the protection of abortion
rights.37 The Abortion Act 1967,38 as amended by the Human Fertilisation and
Embryology Act 1990,39 states that pregnancy can be lawfully terminated up to the
24th week if “the continuance of the pregnancy would involve risk, greater than if
the pregnancy were terminated, of injury to the physical or mental health of the
pregnant woman or any existing children of her family.”40 In addition, abortion is
always permitted if “the termination is necessary to prevent grave permanent injury
to the physical or mental health of the pregnant woman,”41 if “the continuance of
the pregnancy would involve risk to the life of the pregnant woman, greater than if
the pregnancy were terminated,”42 or if “there is a substantial risk that if the child
were born it would suffer from such physical or mental abnormalities.”43 The
consent of two registered medical practitioners is required to perform an abor-
tion,44 except when terminating the pregnancy is “immediately necessary to save
the life or to prevent grave permanent injury to the physical or mental health of the
pregnant woman.”45 Nevertheless, in determining whether continuing a pregnancy
would involve a risk of injury to the health of a woman, doctors may also consider
36 See Eser and Koch (n 13) 42 (arguing that the creation of basic regulatory models “is not
dependent on one single differentiating criterion, but rather is based on a multi-factored approach”).
37 Note that the UK abortion legislation, however, applies only in Great Britain and not in
Northern Ireland.
38 15 Eliz. 2, c. 87 (Eng.). 39 38 Eliz. 2, c. 37 (Eng.).
40 Abortion Act 1967, s 1(1)(a), as amended by the Human Fertilisation and Embryology Act
1990, s 37(1). Prior to the enactment of the Human Fertilisation and Embryology Act 1990, s 1(1)(a)
of the Abortion Act 1967 allowed abortion, without specifying limits, whenever “the termination of
pregnancy would involve risk to the life of the pregnant woman, or of injury to the physical or mental
health of the pregnant woman or any existing children of her family, greater than if the pregnancy was
terminated.” As such, the 1990 revisions have disentangled the original 1967 provision, setting a limit
at the end of the second trimester for abortion on grounds of physical and mental “distress” while
allowing abortion with no limits in cases of a serious risk to the life of or permanent injury to the health
of the pregnant woman.
41 Abortion Act 1967 (as amended), s 1(1)(b).
42 Abortion Act 1967 (as amended), s 1(1)(c).
43 Abortion Act 1967 (as amended), s 1(1)(d).
44 Abortion Act 1967 (as amended), s 1(1). 45 Abortion Act 1967 (as amended), s 1(4).
202 The Right to Abortion
“the pregnant woman’s actual or reasonably foreseeable environment.”46 As a
consequence, women may obtain elective abortions for a wide variety of social
reasons.47 In addition, the law neither sets counseling requirements nor imposes
waiting periods or parental or spousal consent or notification requirements.
A similar liberal regulation of abortion exists today in France. Whereas the Loi
relative à l’interruption volontaire de la grossesse of 197548 had allowed a woman to
seek an abortion within the first ten weeks of pregnancy,49 after mandatory
counseling50 and a seven-day waiting period,51 in 2001 a new law extended the
possibility of seeking a termination of pregnancy in a way analogous to the British
system. In particular, under the Loi relative à l’interruption volontaire de la
grossesse of 2001,52 abortion is permitted “in a situation of stress” up to the 12th
week.53 Although this is less than the 24-week limit set under British law, the new
French Act abolished the mandatory counseling procedure, except for underage
girls.54 Now, counseling is only “systematically suggested, before and after the
voluntary interruption of pregnancy.”55 As a result, women may obtain an abortion
on the basis of a decision taken in agreement with their doctor without any special
procedural requirements.
A second model of regulation of the right to abortion is represented instead by
the 1978 Italian legislation,56 which was largely influenced by the 1975 French law.
Abortion is decriminalized and can be lawfully obtained in the first 90 days of
pregnancy when “continuance of pregnancy, delivery or maternity would involve a
serious risk for the physical and psychological health [of the woman] in light of her
state of health, or her economic, social and family conditions or the circumstances
janvier 1975, p. 739 (Fr.). The abortion act was challenged before the Conseil Constitutionnel, which
declared it constitutional in its Décision 75–17 DC.
49 Art 162–1, Code de la Santé (Fr.), as introduced by Art 4, Loi 75–17.
50 Art 162–4, Code de la Santé. 51 Art 162–5, Code de la Santé.
52 Loi 2001–588 du 4 juillet 2001 relative à l’interruption volontaire de la grossesse et à la contracep-
tion, J.O.R.F., 7 juillet 2001, p. 10823 (Fr.). The law was challenged before the Conseil Constitutionnel
which declared it constitutional in Décision 2001–446 DC and Décision 2001–449 DC.
53 Art 2212–1, Code de la Santé, as modified by Art 1, Loi 2001–588 (my translation: “dans une
situation de détresse”).
54 Art 2212–4, Code de la Santé.
55 Art 2212–4, Code de la Santé (my translation: “systématiquement proposé, avant et après
had already declared unconstitutional the provision of the Italian Codice Penale punishing abortion to
the extent to which it did not include an exception for a pregnant woman whose life was in danger. See
C. Cost n. 27/1975. For an overview of Italian abortion law, see generally Lucio Valerio Moscarini,
“Aborto. Profili costituzionali e disciplina legislativa” in Enciclopedia Giuridica (Treccani 1988) vol 1,
ad vocem.
Context 203
57 Art 4, Legge 194/1978 (my translation: “la prosecuzione della gravidanza, il parto o la maternità
comporterebbero un serio pericolo per la sua salute fisica o psichica [della donna], in relazione o al suo
stato di salute, o alle sue condizioni economiche, o sociali o familiari, o alle circostanze in cui è
avvenuto il concepimento, o a previsioni di anomalie o malformazioni del concepito”).
58 Art 6, Legge 194/1978. 59 Art 5(1), Legge 194/1978.
60 Art 5(4), Legge 194/1978. 61 Arts 5(1) and 5(2), Legge 194/1978.
62 Art 12, Legge 194/1978.
63 See Lei 16/2007 de 17 de Abril 2007, Exclusão da ilicitude nos casos de interrupção voluntária
embarazo (B.O.E. 2010, 55) (Sp.). The 2010 Act has been challenged before the Tribunal Constitu-
cional. See Recurso 4523–10 and Recurso 4541–10 pending.
67 Preamble I, Ley Organica 2/2010 (my translation: “el consenso de la comunidad internacional en
esta materia”).
68 Preamble II, Ley Organica 2/2010 (my translation: “la tendencia normativa imperante en los
países [europeos]”).
69 Art 417 Codigo Penal (Sp.), as modified by Ley Organica 9/1985 (B.O.E. 1985, 166) (Sp.) (my
translation: “no será punible”). The 1985 Act was challenged before the Tribunal Constitucional,
which declared it constitutional in STC Sentencia 53/1985.
70 Art 14, Ley Organica 2/2010 (my translation: “a petición de la mujer”).
204 The Right to Abortion
to the 14th week of pregnancy, after a three-day waiting period and a counseling
session in which women are informed about the means of social assistance and the
public support available for mothers.71 Abortion is then permitted until the 22nd
week on medical grounds and when there are risks of fetal impairment or with no
limit if a medical team certifies that the fetus has no reasonable possibility of
surviving delivery.72
In contrast, among the EU member states in which abortion is permitted,
Germany exemplifies a third, very restrictive, model of abortion regulation.73
After unification, an Act was adopted in 199274 which, in order to harmonize
the law in force in East Germany75 (where women had a right to abortion until the
12th week of pregnancy after mandatory counseling) and in West Germany76
(where abortion was prohibited save on four enumerated grounds),77 made first-
trimester abortions lawful after mandatory counseling. Nevertheless, in 1993 the
Bundesverfassungsgericht, following a 1975 precedent78 quashing the first West
German Abortion Act,79 declared the 1992 Act unconstitutional,80 arguing that
the state had a duty to protect human life, and that legislation ought to express clear
disapproval of abortion.81 In reaction to this decision, the German Parliament
enacted a new abortion Act in 1995,82 amending, inter alia, the Criminal Code.
On the basis of the new law, abortion is unlawful, but may not be punished,83 if it
is performed at the request of the woman, by a medical practitioner, before the end
71 Art 17, Ley Organica 2/2010. 72 Art 15, Ley Organica 2/2010.
73 See Maleck-Lewy (n 27) 62; see also Schlegel (n 47) 52.
74 See Schwangeren und Familienhilfegesetz, von 27 Juli 1992, Bundesgesetzblatt, Teil I [BGBl I]
1398 (Ger.).
75 See Gesetz über die Unterbrechung der Schwangerschaft, vom 9 März 1972, Gesetzblatt der
model” (my translation: “Indikationslösung”), that abortion was “not punishable” (my translation:
“nicht strafbar”) if performed: (1) at any time, on medical grounds; (2) within the first 22 weeks, on
embryopathic grounds; (3) within the first 12 weeks, on criminal–ethical grounds; and (4) within the
first 12 weeks, on social grounds). See Maleck-Lewy (n 27) 67.
78 See BVerfGE 39, 1 (1975). This first decision of the Bundesverfassungsgericht has been the
object of extensive comparative analysis with the abortion decisions of the US Supreme Court. See
John Gorby and Robert Jonas, “West German Abortion Decision: A Contrast to Roe v. Wade” (1976)
9 John Marshall Journal of Practice and Procedure 551.
79 See Fünftes Gesetz zur Reform des Strafrechts, vom 18 Juni 1974, BGBl I 1297 (Ger.).
80 See BVerfGE 88, 203 (1993).
81 See Gerald Neuman, “Casey in the Mirror: Abortion, Abuse and the Right to Protection in the
United States and Germany” (1995) 43 American Journal of Comparative Law 273 (offering a
comparative analysis of abortion law in Germany and the US).
82 See Schwangeren- und Familienhilfeänderungsgesetz [SFHAndG], vom 21 August 1995, BGBl
I 1050 (Ger.).
83 A subtle distinction is, in fact, drawn in German criminal law between the abstract lawfulness of
an act and the effective possibility to sanction an act. As such, an act may be lawful and, therefore, not
punishable, or an act may be unlawful. In the latter case, however, an act might still not be punishable
when other compelling reasons push for the lifting of criminal sanctions. The 1992 Act had made first
trimester abortion not unlawful, but the Bundesverfassungsgericht declared the measure unconstitu-
tional to the extent to which it failed to protect the right to life of the unborn. The 1995 Act, therefore,
made abortion simply “not punishable” in order to express clear disapproval of abortion. See Neuman
(n 81) 285.
Context 205
of the 12th week of pregnancy, and after mandatory counseling and a three-day
waiting period.84 In contrast, abortion is “not unlawful”85 if performed, at
any time, under medical indication in order to prevent danger to the life of or
serious harm to the health of the woman or, within the first 12 weeks of pregnancy,
on criminal-ethical grounds, for example, because the pregnancy is the result of
rape.86
The mandatory counseling process is a peculiar feature of the 1995 German
Abortion Act.87 Following an explicit request by the Bundesverfassungsgericht, the
law clarifies that the counseling must be pro-life oriented:88 that is, it must be
directed toward encouraging the woman to continue her pregnancy and to open
her to the prospect of a life with the child. Social workers and family planning
centers must therefore inform women that the unborn has a right to life and that
abortion can only be performed under exceptional circumstances. The regulation of
abortion via the instruments of criminal law and the imposition of directive
counseling procedures highlight the restrictive attitude of the German legal system
toward the voluntary termination of pregnancy.89 At the same time, however, the
possibility for a woman to obtain an abortion during the first trimester, if she still
wishes to do so after the mandatory counseling and the three-day waiting period,
differentiates German law from the regulation in force in a final group of EU
countries where abortion is generally always prohibited, with only a few, narrowly
tailored, exceptions.90
The fourth model of regulation of abortion exists in Poland, Malta, and Ireland.
Abortion is not permitted in any of these countries, save on exceptional grounds91
Poland swiftly enacted legislation banning elective abortion in 1993, following the
collapse of the Communist regime.92 The new Act permits abortion only if: (1) a
physician, other than the one who performs the abortion, certifies that the preg-
nancy is endangering the mother’s life or health; (2) up to viability (i.e. up to the
24th week), if the fetus is seriously impaired; or (3) up to the 12th week if the
pregnancy resulted from rape.93 Terminating pregnancy outside these specific cases
Connecticut Journal of International Law 33, 51 (discussing the importance of the counseling process
in the German abortion regime).
88 See Art 219, StGB as amended by Art 8, SFHAndG.
89 See Funk (n 87) 57; see also Jackson and Tushnet (n 7) (describing how the German abortion
warunkach dopuszczalności przerywania ciąży (Dz.U. 1993 nr 17 poz. 78) (Pl.) (an English translation
of this provision of the Act on Family-Planning, Human Embryo Protection and Conditions of Legal
Pregnancy Termination, 7 January 1993, is available in Tysiąc v. Poland, ECHR [2007] App. No.
5410/03). The fact that Poland only permits abortion in these three specific cases differentiates Polish
206 The Right to Abortion
is punishable by three years’ imprisonment. A legislative attempt to reform the
law and re-introduce a right to abortion in the first trimester on grounds of
material or personal hardship failed in 1996. The Trybunał Konstytcyjny
declared the law incompatible with the Polish Constitution, interpreting the
right to life provision of the Constitution as protecting the right to life of the
unborn.94
Of all European countries, however, it is Ireland that has the most restrictive
legislation on abortion.95 On the basis of the Offences Against the Person Act
1861,96 the content of which was reaffirmed in the Health (Family Planning) Act
1979,97 “Every woman, being with child, who, with intent to procure her own
miscarriage, shall unlawfully administer to herself any poison or other noxious
thing, or shall unlawfully use any instrument or other means whatsoever with the
like intent . . . to procure the miscarriage . . . shall be liable to be kept in penal
servitude for life.”98 Contrary to the interpretation of the 1861 Act offered by
the English courts,99 Irish tribunals have traditionally adopted a narrow con-
struction of the provision excluding the lifting of criminal sanctions, even when
abortion is carried out to preserve the life or the health of the woman.100 In 1983,
to prevent a possible recognition of a right to abortion by judicial fiat,101 an
legislation and makes it more restrictive than German legislation, where abortion is not punishable
(although it is not lawful) in a wider array of circumstances. See text accompanying n 84. Still,
undoubtedly, the Polish abortion law is more permissive, at least on the books, than that in Ireland. See
text accompanying nn 95–120.
94 Trybunał Konstytucyjny, decision of 28 May 1997, K 26/96. But see the dissenting opinions of
Judges Garlicki and Sokolewicza. See also Alicia Czerwinski, “Sex, Politics and Religion: The Clash
Between Poland and the European Union over Abortion” (2004) 32 Denver Journal of International
Law and Policy 653.
95 See Forder (n 13) 57; Tushnet (n 2) 85.
96 Offences Against the Person Act 1861, 24 & 25 Vict. 236, c. 100 (UK). Note that this Act was
adopted by the UK and applied in Ireland because, until 1922, the UK exercised dominion over
Ireland. See Gerard Hogan, “An Introduction to Irish Public Law” (1995) 1 European Public Law 37.
97 Health (Family Planning) Act 1979 (Act No. 20/1979) (Ir.), s 10.
98 Offences Against the Person Act 1861, s 58. The same penalty applies to the doctor performing
the abortion. According to s 59 it is instead a misdemeanor to supply a woman with the poison or
instruments necessary to procure an abortion.
99 See R. v. Bourne [1939] 1 KB 687, 693–4 (King’s Bench, per Macnaughten J, affirming that
s 58 of the Offences Against the Person Act 1861 “ought to be construed in a reasonable sense, and, if
the doctor is of the opinion, on reasonable grounds and with adequate knowledge, that the probable
consequence of the continuance of the pregnancy will be to make the woman a physical or mental
wreck” abortion should be permitted on therapeutic grounds).
100 See Society for the Protection of Unborn Children Ireland Ltd. v. Grogan [1989] IR 753 (Irish
Supreme Court, per Keane J, affirming that “the preponderance of judicial opinion in this country
would suggest that the Bourne approach could not have been adopted . . . consistently with the
Constitution prior to the Eighth Amendment”).
101 Note that in McGee v. Attorney General [1974] IR 284, the Irish Supreme Court had recognized
a fundamental right to privacy as either an unenumerated personal right or a familial right. As a result,
there was widespread preoccupation that the Irish Supreme Court would follow the path of the US
Supreme Court, whose decision recognizing a right to abortion in Roe v. Wade, followed from its
decision recognizing a right to privacy in Griswold v. Connecticut, 381 U.S. 479 (1965). On the US
constitutional issues of abortion law, see Section 4.
Context 207
102 See John Quinlan, “The Right to Life of the Unborn—An Assessment of the Eighth Amend-
ment to the Irish Constitution” (1984) 3 Brigham Young University Law Review 371, 383–90.
103 Art 40.3.3 Ir. Const., as amended by the Eighth Am.
104 See section 3. 105 Art 40.3.3(2) Ir. Const., as amended by the Thirteenth Am.
106 Art 40.3.3(3) Ir. Const., as amended by the Fourteenth Am.
107 See Cole (n 3) 129–35; Forder (n 13) 57–8.
108 Attorney General v. X. [1992] ILRM 401, 410 (H. Ct.).
109 Attorney General v. X. [1992] 1 IR 41, 53–4 (S.C.).
110 Attorney General v. X. (n 109) 55.
208 The Right to Abortion
that justify therapeutic abortion. All of these attempts, however, have failed in
popular referenda.111
While the status of abortion law in Ireland appeared to be that, constitutionally,
termination of pregnancy was unlawful “unless it [met] the conditions laid down by
the Supreme Court in the X. case,”112 until very recently no legislative regulation
existed on the basis of which a woman could establish her right to obtain a lawful
abortion in Ireland on grounds of a real and serious risk to her life, including a risk
of suicide.113 As a result, no lawful abortion was known to have ever been carried
out in Ireland.114 Under pressure from the ECtHR,115 however, in July 2013 the
Irish Parliament eventually enacted the Protection of Life During Pregnancy
Act.116 Section 7 of the Act now recognizes that a medical procedure “as a result
of which, an unborn life is ended” shall be lawful when two medical practitioners
have certified in good faith that that “there is a substantial risk of loss of the
woman’s life” and in “their reasonable opinion (being an opinion formed in good
faith which has regard to the need to preserve unborn human life as far as
practicable) that risk can only be averted by carrying out the medical procedure.”
Pursuant to Section 8, the certification of one medical practitioner suffices in cases
of emergency, when abortion is “immediately necessary in order to save the life of
the woman;” while under Section 9, the certification of three medical practitioners
(including a psychiatrist) is needed to authorize an abortion when there is “a real
and substantive risk of loss of the woman’s life by way of suicide.” The Act,
moreover, established a procedural mechanism of review through which a woman
can challenge the initial medical decision,117 and recognized a right of the woman
to be heard.118 Finally, the Act repealed the Offences Against the Person Act
111 The proposed Twelfth Amendment to the Irish Constitution would have allowed abortion only
when “necessary to save the life, as distinct from the health, of the mother where there is an illness or
disorder of the mother giving rise to real and substantial risk to her life, not being a risk of self-
destruction.” The proposal was rejected in a popular referendum in November 1992. See Raymond
Byrne and William Binchy, Annual Review of Irish Law 1992 (Sweet & Maxwell 1992) 195–7. The
proposed Twenty-Fifth Amendment to the Irish Constitution—cl. 1(2) of the Protection of Human
Life in Pregnancy Bill, 2001—would have allowed abortion only when “necessary to prevent a real and
substantial risk of loss of the woman’s life other than by self-destruction.” The proposal was rejected in
a popular referendum in March 2002. See Raymond Byrne and William Binchy, Annual Review of Irish
Law 2001 (Sweet & Maxwell 2001) 113.
112 Department of the Taoiseach, “The Green Paper on Abortion” (1999) 3 available at <http://
www.taoiseach.gov.ie/eng/Publications/Publications_Archive/Publications_2006/Publications_for_
1999/Green_Paper_on_Abortion.html>. The report was prepared at the request of the Irish govern-
ment to clarify the legal framework of abortion in Irish law.
113 Women have both a constitutional right to travel to seek an abortion overseas and to obtain
information about abortion services provided in other EU member states pursuant to s 3 of the
Regulation of Information (Services Outside the State for Termination of Pregnancy) Act 1995 (Act
No. 5/1995) (Ir.). The Act makes it legal to distribute information on abortion services abroad as long
as the information does not promote abortion. The Irish Supreme Court was asked to decide in the
abstract and a priori on the constitutionality of the Act, and upheld it unanimously. See Article 26 of the
Constitution and Regulation of Information (Services Outside the State for Termination of Pregnancy) Bill,
In re [1995] 1 IR 1 (S.C.).
114 See IPPF (n 13) 39. 115 See Section 5.
116 Protection of Life During Pregnancy Act 2013 (Act No. 66/2013) (Ir.).
117 Protection of Life During Pregnancy Act 2013, s 10.
118 Protection of Life During Pregnancy Act 2013, s 14.
Challenge 209
1861,119 but reinstated a criminal penalty of imprisonment for a term not exceed-
ing 14 years for the offense “to intentionally destroy unborn human life,”120
effectively retaining Ireland as the state in the EU where abortion is most severely
sanctioned.
In conclusion, as the preceding survey clarifies, a variety of regulatory models
exists in the EU member states in the field of abortion law. In all legal systems,
however, abortion is permitted at any time, at least according to the law on the
books, if necessary to save the life of the woman. Almost every country recognizes
the right to an abortion on medical grounds, to varying degrees. Further, a clear
trend exists among a majority of states toward the legalization of elective abortion
within approximately the first trimester of pregnancy, either on the simple request
of the woman, or on the request of the woman certified (on wide social grounds) by
medical practitioners, or after a mandatory counseling period, be it of a neutral or
life-oriented nature. Despite these differences, however, all state abortion laws are
subject to the increasing influence of supranational law.
Resulting from Membership in the European Union” (2003) 11 Tulane Journal of International and
Comparative Law 141 (advancing a positive view of the influences of supranational law on Irish
abortion law) with Diarmuid Rossa Phelan, “Right to Life of the Unborn v Promotion of Trade in
Services: The European Court of Justice and the Normative Shaping of the European Union” (1992)
55 Modern Law Review 670 (outlining a sovereigntist position, which criticizes the external impact of
EU law on the Irish abortion rules).
210 The Right to Abortion
complexity that national “isolationism is impossible, even on an issue as strongly
felt as abortion.”123
The opportunity for the ECJ to address the issue of abortion arose in 1991 in
Grogan.124 In this case the ECJ had to rule in the context of a preliminary reference
by the Irish High Court. In the domestic proceedings, the Society for the Protec-
tion of the Unborn Child (SPUC) had requested an injunction prohibiting the
representatives of three student unions from advertising the names and contact
details of abortion providers in the UK, arguing that the recently enacted Eighth
Amendment to the Irish Constitution banned the publication of any such infor-
mation.125 In its preliminary reference, the High Court asked the ECJ whether
abortion could be considered a service within the meaning of the law of the then
European Economic Community (EEC)126 and, therefore, whether a national ban
on information about abortion services overseas was contrary to the EEC Treaty
(TEEC), including the fundamental rights protected by EEC law.127 In his
Opinion to the ECJ, Advocate General (AG) Van Gerven acknowledged that
medical termination of pregnancy constituted a service within the meaning of the
TEEC, and therefore fell under the scope of application of EEC law. Hence, he
devoted most of his Opinion to examining whether the Irish prohibition on
distributing information about abortion services that are lawfully available in
other EU states could be regarded as “consistent with or not incompatible with”
the general principles of EU law, including respect for fundamental rights.128
However, the AG found that the Irish restriction was justified in light of the public
interest pursued by the state and of the “high priority” the Irish Constitution
attached to the protection of unborn life.129 In addition, the AG concluded that the
ban on information sought by SPUC did not disproportionately infringe upon
While the Irish High Court referred the question to the ECJ, it stayed the proceedings and did not
grant the injunction requested by SPUC barring the student from publishing information about
abortion providers. SPUC appealed to the Supreme Court, and the Supreme Court granted a
temporary injunction but did not interfere with the High Court’s decision to request a preliminary
ruling from the ECJ. Rather, the Supreme Court gave the parties leave to apply to the High Court
again in order to adjust the injunction in light of the ECJ’s decision. See Society for the Protection of
Unborn Children Ireland Ltd. v. Grogan [1989] 4 IR 760, 765–6 (S.C.).
126 See Cole (n 3) 126–7; Mercurio (n 122) 156–7.
127 See Case 29/69 Stauder v. City of Ulm–Sozialamt [1969] ECR 419, para 7 (ECJ affirming that
fundamental rights are general principles of EU law); Case 5/88 Wachauf v. Bundesamt für Ernährung
und Forstwirtschaft [1989] ECR 2609, para 17 (ECJ holding that EU member states must respect
fundamental rights as general principles of EU law when they implement EU law); Case C-260/89
ERT [1991] ECR I-2925, para 41 (ECJ holding that EU member states must respect fundamental
rights as general principles of EU law when they restrict the exercise of one of the common market
freedom). See also Zdenek Kühn, “Wachauf and ERT: On the Road from the Centralized to the
Decentralized System of Judicial Review” in Miguel Poiares Maduro and Loïc Azulai (eds), The Past
and Future of EU Law: The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty
(Hart Publishing 2010) 151.
128 Grogan (n 124) Opinion of AG Van Gerven, para 24.
129 Grogan (n 124) Opinion of AG Van Gerven, para 29.
Challenge 211
Ireland’s Role in a Changing European Union” (1997) 22 Brooklyn Journal of International Law
695, 702.
140 Cole (n 3) 129.
141 See Alison Young, “The Charter, Constitution and Human Rights: Is This the Beginning or the
End for Human Rights Protections by Community Law?” (2005) 11 European Public Law 219, 230
(arguing that “Grogan can be regarded as a triumph for the right of the woman to choose”).
212 The Right to Abortion
1992, it sought and obtained from its EU partners the enactment of an additional
protocol to the EU Treaty stating that “nothing in the Treaty on European
Union, or in the Treaties establishing the European Communities, or in the
Treaties or Acts modifying or supplementing those Treaties, shall affect the
application in Ireland of Article 40.3.3 of the Constitution of Ireland.”142
Nevertheless, the “special case” approach sought by Ireland produced domestic
public outcry, “exacerbated by the Irish Supreme Court’s . . . ruling in [the] X.
[case],”143 forcing the Irish government to retract its position by adding a
“negative declaration” to the EU Treaty.144 The Declaration restricted the
meaning of the Protocol by stating that “the Protocol shall not limit freedom
either to travel between Member States or . . . to obtain or make available in
Ireland information relating to services lawfully available in Member States.”145
The substance of the Declaration was subsequently also constitutionalized in
Ireland.146 As a consequence, doubts have been raised about the real effect of the
Protocol, with convincing arguments being made that the status of EU law vis-à-
vis Irish abortion law has not changed very much at all.147
While the ECJ has come to adjudicate state abortion legislation via the freedom
to provide services of the TEEC, the ECtHR has followed a more direct path
toward involvement in the issue of abortion rights.148 When the ECHR was
adopted in 1950, abortion was of course still regarded as a criminal issue by all
the signatory parties. Therefore, it was not the intention of the drafters of the
ECHR to codify a substantive limitation on national powers to regulate abortion.
Nevertheless, the ECHR does include a number of provisions—such as the right
to life,149 the right to respect for private and family life,150 and freedom of
information151—which, over time, became increasingly relevant in litigation chal-
lenging member states’ abortion laws. Until the 1990s, the ECtHR did not have
the opportunity to decide cases concerning national abortion laws. Prior to the
enactment of the 11th Additional Protocol to the ECHR in 1998, all individual
applications lodged before the ECtHR were first addressed by the European
142 Protocol No. 17, OJ 1992 C 224/130—now consolidated as Protocol No. 35, OJ 2010
C 83/321.
143 Deirdre Curtin, “The Constitutional Structure of the Union: A Europe of Bits and Pieces”
and their Impact on National and European Identity” (2008) 14 European Law Journal 186, 191.
145 Declaration of the High Contracting Parties to the Treaty on European Union, 1 May 1992.
146 See text accompanying nn 105–6.
147 See Forder (n 13) 64 (arguing that “the Declaration . . . confirms the law as it was after SPUC v.
Grogan and thus sets the course for a head-on collision between the Irish constitution and Community
law”).
148 See Alec Stone Sweet, “Sur la constitutionnalisation de la Convention Européenne des droits de
l’homme: cinquante ans après son installation, la Cour Européenne des droits de l’homme conçue
comme une cour constitutionnelle” (2009) 80 Revue trimestrielle des droits de l’homme 923
(describing the increasing importance of the ECHR as an instrument for the protection of fundamental
rights in Europe and for the supervision of member states’ conduct).
149 Art 2 ECHR. 150 Art 8 ECHR. 151 Art 10 ECHR.
Challenge 213
152 The institutional machinery of the ECHR has been evolving. Until the enactment of the 11th
Additional Protocol to the ECHR, applications were first examined by the ECommHR, which sought
to achieve a friendly settlement of the dispute and decided the issue with a decision. Decisions by the
ECommHR could then be appealed to the ECtHR. Since the 11th Additional Protocol to the ECHR
has come into force, instead, the ECommHR has been eliminated and individuals can lodge an
application directly before the ECtHR under the conditions provided by Art 35 ECHR. See Clare
Ovey and Robin White, The European Convention on Human Rights (4th ed OUP 2006) ch 24
(describing the institutional machinery of the ECHR and its evolution).
153 See Lawson (n 121) 170.
154 See David Harris, “The Right to Life Under the European Convention on Human Rights”
challenge against the UK Abortion Act 1967 based on the claim that Art 2 ECHR protected the
right to life of the fetus). See also R. H. v. Norway, ECommHR [1992] App. No. 17004/90 (declaring
inadmissible a challenge against the Norwegian legislation on abortion based on the claim that Art 2
protected the right to life of the fetus).
156 See Brüggemann and Scheuten v. Germany, ECommHR [1977] App. No. 5969/75 (rejecting on
the merits a challenge to the German regulation of abortion established by the 1976 Fünfzehntes
Strafrechtsänderungsgesetz based on the claim that Art 8 ECHR extended to protect the right of
privacy of the woman to decide whether to terminate her pregnancy).
157 See Mercurio (n 122) 155.
158 SPUC v. Open Door Counselling [1988] IR 593 (H. Ct.).
159 SPUC v. Open Door Counselling [1988] IR 618 (S.C.).
160 Having succeeded in obtaining a judicial injunction barring the two Dublin-based counseling
clinics, Open Door Counselling Ltd. and Dublin Well Woman Centre Ltd., from circulating
information about abortion service providers in the UK, SPUC commenced proceedings against the
students associations. These proceedings then led to the decision of the ECJ in Grogan. See text
accompanying n 125.
161 Open Door Counselling v. Ireland, ECommHR [1990] App. Nos 14234/88 and 14235/88
162 Open Door Counselling v. Ireland, ECommHR [1991] App. Nos 14234/88 and 14235/88
n 135, was not addressed by the ECJ in Grogan. AG Van Gerven, instead, had covered the issue in his
Opinion and concluded that the Irish ban on the freedom to provide information about abortion
providers overseas did not violate Art 10 ECHR. See text accompanying n 130.
171 See Cole (n 3) 138.
172 See Christina Zampas and Jaime Gher, “Abortion as a Human Right—International and
of Appreciation in the Case Law of the European Court of Human Rights” (1996) 56 Zeitschrift für
ausländisches öffentliches Recht und Völkerrecht 240.
175 Zampas and Gher (n 172) 276.
Challenge 215
person within the meaning of the ECHR.176 In Boso,177 the Court upheld the
Italian abortion statute, arguing that the domestic legislation struck “a fair balance
between, on the one hand, the need to ensure protection of the fetus and, on the
other, the woman’s interests.”178 In addition, in Vo179 the ECtHR—while express-
ing its awareness that it was neither desirable, nor even possible as matters stood, to
answer in the abstract the question when life begins and “whether the unborn child
is a person for the purposes of Article 2 of the Convention”180—concluded that the
French law at issue did not violate the right to life clause of ECHR.181
In Tysiąc,182 however, the ECtHR took the milestone step of finding a violation
of Article 8 ECHR in the operation of the restrictive Polish abortion law.183 The
case involved a Polish woman suffering from a pathological optical disease. Having
become pregnant, the woman was informed by several medical practitioners that
pregnancy and delivery might cause a serious deterioration in her optical condition.
As a consequence, she sought a medical termination of pregnancy on the basis of
Polish law, which permits abortion when pregnancy seriously threatens the health
of the woman.184 Nevertheless, the doctors refused to grant the woman the health
certificate necessary to obtain an abortion in a public hospital. The woman was
forced to deliver the baby and, as expected, her condition deteriorated badly and
she became practically blind. The applicant raised a facial challenge against the
Polish abortion law, arguing that the prohibition on a voluntary interruption of
pregnancy amounted to an interference with her Article 8 ECHR right to respect
for private life.185 The ECtHR, instead, took the view that “the circumstances of
the applicant’s case and in particular the nature of her complaint [we]re more
appropriately examined from the standpoint of the respondent State’s . . . positive
obligations.”186 According to the ECtHR, Article 8 ECHR establishes not only a
negative limit on the power of the state to interfere with a person’s physical and
psychological integrity, but also “a positive obligation [for the state] to secure to its
citizens their right to effective respect for this integrity.”187 In the case at hand, the
national authorities had failed to comply with this duty.188
176 See Jakob Pichon, “Does the Unborn Child Have a Right to Life? The Insufficient Answer of
the European Court of Human Rights” (2006) 7 German Law Journal 433; Lorenza Violini and
Alessandra Osti, “Le linee di demarcazione della vita umana” in Marta Cartabia (ed), I diritti in azione
(Il Mulino 2007) 14.
177 Boso v. Italy, ECHR [2002] App. No. 50490/99. 178 Boso (n 177) para 1.
179 Vo v. France, ECHR [2004] App. No. 53924/00 (GC). 180 Vo (n 179) para 85.
181 See also Evans v. United Kingdom, ECHR [2007] App. No. 6339/05 (GC) (declining to extend
ductive ‘Rights’ and the Intriguing Case of Tysiąc v. Poland ” (2008) 15 European Journal of Health
Law 361.
184 See text accompanying n 93.
185 See Jill Marshall, “A Right to Personal Autonomy at the European Court of Human Rights”
see Neuman (n 81) 300; David Currie, “Positive and Negative Constitutional Rights” (1986) 53
University of Chicago Law Review 864.
216 The Right to Abortion
As the ECtHR argued, the Polish abortion Act did allow for termination of
pregnancy on health grounds, an exception that the applicant’s condition should
certainly have triggered. Nevertheless, the Polish legislation lacked “any effective
mechanisms capable of determining whether the conditions for obtaining a lawful
abortion had been met in [the applicant’s] case.”189 The absence of a clear, time-
sensitive procedure for ascertaining in a fair and independent manner whether a
woman had a right to terminate her pregnancy on health grounds had a “chilling
effect on doctors when deciding whether the requirements of legal abortion are met
in an individual case.”190 In the ECtHR’s view, “once the legislature decides to
allow abortion, it must not structure its legal framework in a way which would limit
real possibilities to obtain it.”191 The decision of the ECtHR in Tysiąc is “signifi-
cant because it confirms that women’s right to access legal abortions may not be
illusory.”192 At the same time, in stressing the positive duties that states have in
adopting all relevant measures to make legal abortion practically available, the
ECtHR focused only on the procedural aspects of abortion law.193 From this
point of view, the approach of the ECHR judicial branch seems far more prudent
than that of the Parliamentary Assembly of the Council of Europe,194 which has
recently, albeit in non-binding form, expressed its concern that in many of the
contracting states “numerous conditions are imposed and restrict the effective
access to safe, affordable, acceptable and appropriate abortion services.”195 The
Parliamentary Assembly explicitly advocated that “abortion should not be banned
within reasonable gestational limits.”196 Rather, Tysiąc indicates “the ECtHR’s
unwillingness to address substantive violations of abortion rights, even when there
is a legal basis for abortion, and propensity to rely on procedural violations to
remedy the wrong.”197
In conclusion, the jurisprudence of the ECJ and the ECtHR highlights the
increasing impact of supranational law over states’ regulations of abortion.198 On
the one hand, the ECJ—while strategically avoiding a clash with the state author-
ities on the human rights questions raised by a ban on the circulation of informa-
tion about abortion199—has clearly affirmed that abortion represents a service
189 Tysiąc (n 182) para 124. 190 Tysiąc (n 182) para 116.
191 Tysiąc (n 182) para 116. 192 Zampas and Gher (n 172) 279.
193 See also D. v. Ireland, ECHR [2006] App. No. 26499/02 (declaring the complaint of a woman
who could not obtain an abortion in Ireland on the ground of fetal impairment as inadmissible since
the applicant had not explored all of the domestic procedural avenues that might have been available to
have her claim heard—including a constitutional challenge to the Irish Supreme Court).
194 The Parliamentary Assembly is one of the statutory bodies of the Council of Europe. It is
composed of representatives from each of the contracting parties who are elected or appointed by
national parliaments. It exercises advisory functions. See Tony Joris and Jan Vandenberghe, “The
Council of Europe and the European Union: Natural Partners or Uneasy Bedfellows?” (2009) 15
Columbia Journal of European Law 1, 5.
195 Council of Europe Parliamentary Assembly Resolution 1607 (2008), } 2.
196 Resolution 1607, } 4. 197 Zampas and Gher (n 172) 279.
198 See Forder (n 13) 99 (arguing that “the presence of EEC Law and the ECHR means that it is no
longer possible to fossilise certain values within constitutional principles in the hope that these values
will be safeguarded against development and change”).
199 See Cole (n 3) 128; Lawson (n 121) 173.
Challenge 217
from Ann Althouse, “Vanguard States, Laggard States: Federalism and Constitutional Rights”
(2003–04) 152 University of Pennsylvania Law Review 1745. The terms should be used here with a
rather agnostic take to indicate those states with the most and least protective regulation in the field.
Because this chapter addresses the question of the voluntary interruption of pregnancy from the
perspective of the woman’s right to choose, it appears that vanguard states are those which ensure a
more permissive regulation of abortion. The situation would be reversed if one were to adopt the
opposite perspective, assessing the voluntary interruption of pregnancy from the viewpoint of the
protection of the right to life of the unborn.
204 Czerwinski (n 94) 663; Mercurio (n 122) 179. 205 Forder (n 13) 56.
218 The Right to Abortion
Until the 1990s, abortion law was exclusively within the purview of the
member states, with major variations in the choice of regulation pursued by
the EU countries. Also in this field, developments in both the framework of the
EU and in the ECHR system have proved that—to quote the famous statement
of Koen Lenaerts—“there is simply no nucleus of sovereignty that the Member
States can invoke”206 against the evolution of supranational law.207 The ECJ and
the ECtHR have, step-by-step, developed a series of substantive checks and
procedural balances that have slowly enhanced the floor of protection ensured
to abortion rights Europe-wide. This has created a series of pressures in those
states endowed with extremely restrictive abortion laws, while leaving the van-
guard states free to provide even more advanced forms of protection for abortion
rights. To the extent to which the dynamics taking place in Europe are the result
of the interaction between state laws and supranational human rights principles,
however, they are not exceptional. Rather, a comparative analysis of the US
constitutional experience reveals the existence of analogous dynamics and can
shed useful light on the pros and cons of the future scenarios of the protection of
abortion rights in Europe.
206 Koen Lenaerts, “Constitutionalism and the Many Faces of Federalism” (1990) 38 American
systems of the EU member states, see generally Miriam Aziz, The Impact of European Rights on National
Legal Cultures (Hart Publishing 2004).
208 Stephen Gardbaum, “State and Comparative Constitutional Law Perspectives on a Possible
Post-Roe World” (2007) 51 St. Louis University Law Journal 685, 690.
209 See Vicki Jackson, Constitutional Engagements in a Transnational Era (OUP 2010) 213 (arguing
that in several “federal systems, regulation [of abortion] not only varies substantively but takes place (or
not) in quite different ways as between national and subnational levels”).
210 Gardbaum (n 208) 687, 690.
Comparative assessment 219
field of federal competence 211 and is thus subject to uniform federal legislation (or
lack thereof ),212 in the US, jurisdiction over criminal law and abortion belongs to
the constituent states, albeit under constraints imposed by the federal govern-
ment.213 In addition, contrary to other federal systems such as Australia, where
criminal law and, by implication, the regulation of abortion, is also within the
competences of the constituent states 214 but is essentially addressed in a uniform
manner,215 the US has historically displayed wide variation in the way in which
individual states have regulated abortion rights.216
As I claimed in Chapter 1, then, the US federal system and the European
multilevel architecture are both characterized by a multi-layered arrangement for
the protection of fundamental rights in which rights are simultaneously recognized
at the state and federal or supranational level and adjudicated by a plurality of
institutions operating in these multiple layers. Therefore, a comparative assessment
of the US constitutional experience can provide illuminating insights into the
challenges and developments in the field of abortion law in the European system.
However, a number of clarifications are necessary. The comparison between the
constitutional dynamics shaping the issue of abortion in the US and Europe neither
implies that the two systems are identical nor suggests that the two systems will
necessarily develop along the same lines. Despite the fact that the EU and the
ECHR “have increasingly taken on the features of full-blown constitutional struc-
tures,”217 there are still significant differences between the European multilevel
architecture and the US federal system, and many of these differences are likely to
remain. As such, the US example is considered in this chapter as a mirror to better
appreciate the complex dynamics in action in the European framework of abortion
211 See Art 91(27), Const. Can. (British North America Act 1867, 30 & 31 Vict., c. 3 (UK))
(attributing to the federal government competence in the field of criminal law); Art 123, Const. Switz.
(same). Note that this is also the case in the two federal countries that are members of the EU,
Germany and Austria. See text accompanying nn 18 and 73 ff.
212 Art 119(2), Code Pénal Suisse, as amended by Loi Fédérale du 23 Mars 2001, RO 2002,
p. 2989 (Switz.) (allowing abortion within the first trimester at the request of a woman in a state of
distress and at any time if required, on the indication of a medical practitioner, to prevent the threat of
serious harm to the physical integrity or mental distress of the woman). In Canada, on the contrary,
there is at present essentially no federal legislation on abortion as section 251, C-34 of the Criminal
Code, R.S.C. 1985 (Can.) was declared unconstitutional by the Canadian Supreme Court in R. v.
Morgantaler [1988] 1 S.C.R. 30, on the ground that it violated the principles of liberty codified in
section 7 of the 1982 Canadian Charter of Rights and Freedoms and was never replaced. In the absence
of federal intervention, the attempt by the province of Nova Scotia to enact a criminal ban on abortion
was also declared unconstitutional by the Canadian Supreme Court in R. v. Morgantaler [1993] 3 S.C.R.
463 on the ground that competence over criminal law and, by implication, over abortion belongs to the
federal government.
213 See text accompanying nn 219–22.
214 See Arts 51 and 52, Const. Austral. (detailing the competences of the federal government
without enumerating criminal law, which therefore belongs to the states and territories).
215 See Elizabeth Kennedy, “Abortion Laws in Australia” (2007) 9 The Royal Australian and New
Zealand College of Obstetricians and Gynaecologists 36 (arguing that a common law defense of
necessity precludes punishment for abortion performed on medical grounds and applies in the states of
Victoria, New South Wales, and Queensland, while specific health legislation precludes punishment
for abortion under medical certification and is in force in Western Australia, Tasmania, South
Australia, the Northern Territory, and the Australian Capital Territory).
216 See text accompanying n 223. 217 Gardbaum (n 208) 694.
220 The Right to Abortion
law—not as a model that should be imported into the European context. At best, a
comparison with the US experience can provide cautionary tales on the risks and
benefits associated with the alternative scenarios that may in the future open up in
the European multilevel human rights regime.218
Abortion laws in the US in the early 1960s closely resembled the European laws
of the same period. During the 19th century, all the states of the federation had
enacted criminal bans on abortion, with the primary aim of protecting the potential
mother from the abortionist.219 By the turn of the 20th century, anti-abortion laws
had been redrafted with the goal of protecting the fetus rather than protecting the
woman and had acquired a “symbolic social curb . . . [of] women’s autonomy over
their own bodies [and] . . . sexual relations.”220 The standard format of abortion
legislation in US states “typically made it a crime for anyone to perform an abortion
and also usually made it a crime for a woman to obtain one.”221 Most states only
allowed the termination of pregnancy when strictly necessary to save the woman’s
life.222 By the 1960s, however, pressure had emerged in many states to change
restrictive abortion legislations, either by reforming them or by abolishing them.223
In 1962, the American Law Institute (ALI) published its Model Penal Code which,
in reconsidering the entire system of US criminal law, also offered a model of
reform for abortion law.224 The Code removed criminal sanctions for performing
an abortion when the medical practitioner certifies that “there is substantial
risk that continuance of the pregnancy would gravely impair the physical or mental
health of the mother or that the child would be born with grave physical or mental
defect, or that the pregnancy resulted from rape, incest, or other felonious inter-
course.”225 In the following years, a number of state legislatures amended their
codes to incorporate the changes suggested by the ALI.226 Others adopted
even more liberal reforms, allowing abortion on demand up to the first trimester
or later.227
Because the reform of state laws proceeded unevenly, however, advocates for
change began to mount challenges against restrictive abortion laws before the state
judiciary.228 For instance, in 1969 the California Supreme Court found that the
218 See generally Ernest A. Young, “Protecting Member State Autonomy in the European Union:
Some Cautionary Tales from American Federalism” (2002) 77 New York University Law Review
1612.
219 On the history of abortion law in the US, see David Garrow, Liberty and Sexuality: The Right to
Privacy and the Making of Roe v. Wade (California UP 1994); Natalie Hull and Peter Charles Hoffer,
Roe v. Wade: The Abortion Rights Controversy in American History (Kansas UP 2010).
220 Hull and Hoffer (n 219) 47. 221 Tushnet (n 2) 45.
222 See Edward Veitch and R. R. S. Tracey, “Abortion in the Common Law World” (1974) 22
Stat., } 14–45.1 (1967); California Health and Safety Code, }} 25950–54 (1967).
227 See New York Penal Law, } 125.05.3 (1972) (justifying abortion upon request within 24 weeks
of the commencement of pregnancy); Hawaii Rev. Stat., } 453–16(c) (1972) (justifying abortion on
demand until viability).
228 See Garrow (n 219).
Comparative assessment 221
state’s Act prohibiting abortion, except when necessary to save the woman’s life was
unconstitutionally vague under the California Constitution.229 The federal judi-
ciary also soon became a forum for legal attacks on restrictive state abortion
laws. Since the late 1920s the US Supreme Court had begun to interpret the
Fourteenth Amendment to the US Constitution 230 to “incorporate” parts of the
first ten Amendments to the US Constitution, commonly referred to as the Bill of
Rights.231 As a result of this transformative jurisprudence, the US Supreme Court
required the states to comply with, and ensure the protection of, many of the
fundamental rights articulated in the Bill of Rights, and plaintiffs were empowered
to rely on these rights to challenge state legislation before the federal judiciary.232 In
the early 1970s, federal district and circuit courts began to embrace claims that
restrictive state abortion laws conflicted with the fundamental right guarantees
protected by the US Constitution,233 and most specifically with the right to privacy
which the Supreme Court had recognized in Griswold v. Connecticut.234 Clearly,
the 18th-century Bill of Rights of the US Constitution—much like the 20th-
century fundamental laws of the EU member states, the ECHR, and the EU
Treaties—does not contain an explicit, textual protection for the right to
abortion.235
In the paramount 1973 Roe v. Wade decision,236 however, the US Supreme
Court found that the federal Constitution protected an unenumerated right to
abortion and that state laws prohibiting abortion were unconstitutional.237 In Roe,
229 People v. Belous, 71 Cal. 2d 954 (Cal. 1969). On the approach of the California judiciary to the
issue of abortion, see also People v. Abarbanel, 239 Cal. App. 2d 31 (1965) (holding, under the aegis of
the pre-1967 legislation, that abortion was not criminal if the doctor performing it believed in good
faith that the mother would have committed suicide).
230 US Const. Am. XIV (“Nor shall any State deprive any person of life, liberty, or property,
without due process of law”). On the Due Process Clause, see William Nelson, The Fourteenth
Amendment: From Political Principle to Judicial Doctrine (Harvard UP 1988).
231 See Gitlow v. New York, 268 U.S. 652 (1925) (holding that the freedom of speech, protected by
the I Am. to the US Constitution from abridgment by Congress, was among the fundamental personal
rights and liberties protected by the Due Process Clause of the XIV Am. from impairment by the
states). See Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (Yale UP 2000). For a
more in-depth account of the incorporation debate and further references to the scholarship, see the
analysis in Chapter 1.
232 See John Paul Stevens, “The Bill of Rights: A Century of Progress” in Geoffrey Stone et al (eds),
The Bill of Rights in the Modern State (Chicago UP 1992) 13; Michael Zuckert, “Toward a Corrective
Federalism: The United States Constitution, Federalism and Rights” in Ellis Katz and Alan Tarr (eds),
Federalism and Rights (Rowman & Littlefield 1996) 75.
233 See Hull and Hoffer (n 219).
234 381 U.S. 479 (1965) (holding that a Connecticut law prohibiting the sale of contraceptives even
to married couples was in violation of the right to privacy, a right that the Court derived from
aggregating the penumbras of the Bill of Rights and other Amendments to the Constitution).
235 See, however, US Const. Am IX. (stating that “the enumeration in the Constitution, of certain
rights, shall not be construed to deny or disparage others retained by the people”). See also Tushnet
(n 2).
236 410 U.S. 113 (1973).
237 The decision of the US Supreme Court in Roe v. Wade is the subject of detailed assessment in all
US constitutional law casebooks. See Gerald Gunther and Kathleen Sullivan, Constitutional Law (13th
ed Foundation Press 1997) 530. For a comparative perspective, see also Jackson and Tushnet (n 7);
Cappelletti and Cohen (n 7).
222 The Right to Abortion
the Supreme Court invalidated an old Texas statute which made abortion a crime
in all circumstances.238 On the same day that the Court delivered its Roe judgment,
it also struck down, in Doe v. Bolton,239 another more modern abortion statute
from Georgia that criminalized abortion except on medical grounds.240 Writing for
a seven–to–two majority of the Supreme Court, Justice Blackmun stated that the
right to privacy was “broad enough to encompass a woman’s decision whether or
not to terminate her pregnancy.”241 The Court signaled that a woman’s right to
abortion was not absolute and acknowledged that “some state regulation in areas
protected by that right is appropriate.”242 Like the ECtHR,243 moreover, it refused
to speculate on “the difficult question of when life begins.”244 But it unequivocally
stated that the fetus could not be regarded as a person within the meaning of the
Fourteenth Amendment in order to justify restrictive states’ anti-abortion stat-
utes.245 In light of this constitutional assessment, the Supreme Court developed its
well-known “trimesters guidelines,” clearly dictating the legitimate contours within
which a state could regulate abortion:246
(a) For the stage prior to approximately the end of the first trimester [of pregnancy], the
abortion decision and its effectuation must be left to the medical judgment of the pregnant
woman’s attending physician; (b) For the stage subsequent to approximately the end of the
first trimester, the State, in promoting its interest in the health of the mother, may, if it
chooses, regulate the abortion procedure in ways that are reasonably related to maternal
health. (c) For the stage subsequent to viability, the State in promoting its interest in the
potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except
where it is necessary, in appropriate medical judgment, for the preservation of the life or
health of the mother.247
The Roe decision generated strong reactions248 and effectively transformed the issue
of abortion into “the central legal problem” of contemporary US constitutional
law.249 Attempts were made at the federal level to overrule Roe through the
enactment of a human life amendment250 and to limit Roe’s impact by prohibiting
the financing of abortion through federal funds.251 The main responses to the
238 Texas Penal Code, }} 1191–4 (1961), invalidated by Roe v. Wade, 410 U.S. 113 (1973).
239 410 U.S. 179 (1973).
240 Georgia Criminal Code, }} 26–1201–03 (1968), invalidated by Doe v. Bolton, 410 U.S. 179
(1973).
241 Roe (n 236) at 153. 242 Roe (n 236) at 154. 243 See text accompanying n 180.
244 Roe (n 236) at 159. 245 See Veitch and Tracey (n 222); Dworkin (n 12).
246 See Hull and Hoffer (n 219) 176; Tushnet (n 2) 73. 247 Roe (n 236) at 164–5.
248 Compare John Hart Ely, “The Wages of the Crying Wolf: A Comment on Roe v. Wade” (1973)
82 Yale Law Journal 920, with Laurence Tribe, “Toward a Model of Roles in the Due Process of Life
and Law” (1973) 87 Harvard Law Review 1.
249 Ann Althouse, “A Response to ‘If Roe Were Overruled’ ” (2007) 51 St. Louis University Law
differently worded amendments to ban or cut back on abortion had reached the floor of Congress”).
251 This was accomplished via the 1976 Hyde Amendment to Title X of the Public Health Service
Act, which was systematically re-enacted in successive Health Service appropriation bills and is now
codified as Pub. L. No. 111–8, H.R. 1105, Div. F, Title V, Gen. Provisions, }} 507(a) (2009).
Comparative assessment 223
decision nevertheless occurred at the state level.252 Indeed, Roe “federalized (rather
than nationalized) abortion policy, making state legislatures supporting players in
abortion policymaking.”253 The responses to the Roe decision were multifaceted.
Whereas a handful of states enacted statutes that were facially incompatible with
Roe and thus directly defied the decision of the Supreme Court,254 in other states,
“legislatures responded to Roe by enacting new restrictions that attempted to reduce
the number of abortions without challenging what came to be called Roe’s ‘central
premise’—that the Constitution barred states from making it a criminal offense to
have or perform any abortion.”255 To that end, states passed laws denying public
financing for abortion and setting strict conditions under which abortions would be
allowed, such as requiring abortions to be performed in hospitals, requiring prior
parental and spousal consent, and waiting periods.256 In a series of decisions in the
20 years following Roe, the Supreme Court struck down many such state laws,
including the imposition of spousal consent,257 mandatory waiting periods,258 and
the requirement that abortions be performed only in hospital.259 In Bigelow v.
Virginia,260 the Court struck down a Virginia statute which, much like the Irish
ban challenged before the ECJ in Grogan,261 prohibited the advertising of abortion
providers in other US states.262
At the same time, the Supreme Court upheld state laws imposing women’s
informed consent,263 requiring parental notification,264 and foreclosing both state
and federal public funding for elective abortions.265 In addition, under the influ-
ence of newly appointed justices and, possibly, the pressure from state legislatures,
the Court incrementally retracted from Roe’s rigid trimester formula.266 The
reasoning of the Court in Roe had been criticized, from a liberal perspective, for
overemphasizing the role of medical practitioners and failing to address the issue of
women’s autonomy and equality.267 In contrast, conservative critics found that
252 For an assessment of the federalism issues involved, see Anthony Bellia, “Federalism Doctrines
and Abortion Cases” (2007) 51 St. Louis University Law Journal 767.
253 Glen Halva-Neubauer, “Abortion Policy in the Post-Webster Age” (1990) 20 Publius 27, 32.
254 See Veitch and Tracey (n 222) 668; Halva-Neubauer (n 253) 32.
255 Tushnet (n 2) 76 (emphasis in original).
256 See Tushnet (n 2) at 76–8; Hull and Hoffer (n 219) 189.
257 See Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976).
258 See City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983).
259 See Akron (n 258). 260 421 U.S. 809 (1975). 261 See text accompanying n 124.
262 See Richard Fallon, “If Roe Were Overruled: Abortion and the Constitution in a Post-Roe
relationship between medical practitioners and patients and require doctors to disclose and discuss with
the patient the patient’s diagnosis (if known), the nature and purpose of a proposed treatment or
procedure, its risks and benefits, and the alternatives (if available).
264 See Planned Parenthood Association of Kansas City v. Ashcroft, 462 U.S. 476 (1983).
265 See Maher v. Roe, 432 U.S. 464 (1977) (upholding the constitutionality of a Connecticut
statutory provision denying public funding for elective abortions); Harris v. McRae, 448 U.S. 297
(1980) (upholding the constitutionality of the Hyde Amendment).
266 See Hull and Hoffer (n 219) 214; Garrow (n 219) 600.
267 See Donald Regan, “Rewriting Roe v. Wade” (1979) 77 Michigan Law Review 1569; Ruth
Bader Ginsburg, “Some Thought on Autonomy and Equality in Relation to Roe v. Wade” (1985) 63
North Carolina Law Review 375.
224 The Right to Abortion
Roe’s prohibition of any state regulation of abortion during the first trimester
represented an unwarranted interference by the federal judicial branch in a matter
that should be decided by state legislatures, through the states’ democratic pro-
cesses.268 This eventually opened the way for the Court’s 1992 decision in Planned
Parenthood v. Casey.269 In a plurality opinion jointly written by Justices Kennedy,
O’Connor, and Souter, the Supreme Court upheld Roe’s core holding that “a State
may not prohibit any woman from making the ultimate decision to terminate her
pregnancy before viability.”270 However, it rejected Roe’s trimester framework,
replacing it with the “undue burden” test.271 Under this test, a state’s regulation
of abortion would be regarded as “invalid, if its purpose or effect is to place a
substantial obstacle in the path of a woman seeking an abortion before the fetus
attains viability.”272
Applying the undue burden test in Casey, the Supreme Court upheld a number
of provisions in the Pennsylvania law under review, including the imposition of
informed consent and a waiting period for women seeking abortion.273 The Court
instead struck down the spousal notification requirement, arguing that due to the
threat of violence that a woman might face if she had to inform her partner of her
decision to seek an abortion,274 the provision represented a substantial obstacle to a
woman’s right to choose and was tantamount, for all practical effects, to a proviso
“outlaw[ing] abortion in all cases.”275 The implications of Casey have been the
subject of debate. According to some, Casey saved Roe.276 At the same time, the
Court made clear “that state regulations [would] almost invariably pass[] mus-
ter,”277 unless they attempted to ban abortion outright.278 Hence, even though it
has been argued that Casey somehow “settled the abortion dispute, both by
establishing a majoritarian, split-the-difference standards, and perhaps more
importantly, by providing a template that helps states determine what types of
268 In the anti-Roe rhetoric, there does not seem to be an express X Am. criticism to the limitation
on state authority produced by the Supreme Court decision. See US Const. Am X. (“The powers not
delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to
the States respectively, or to the people”). However, much of the criticism of the praetorian action of
the Supreme Court in Roe are inspired by the belief that abortion laws should be addressed by the
states’ legislative processes, rather than by the federal courts. See e.g., Clarke Forsythe and Stephen
Presser, “The Tragic Failure of Roe v. Wade: Why Abortion Should Be Returned to the States” (2005)
10 Texas Review of Law and Politics 85.
269 Planned Parenthood of Southeast Pennsylvania v. Casey, 505 U.S. 833 (1992).
270 Casey (n 269) at 879.
271 See Tushnet (n 2) 82. On the undue burden test, see also Erin Daly, “Reconsidering Abortion
Law: Liberty, Equality and the New Rhetoric of Planned Parenthood v. Casey” (1995) 45 American
University Law Review 77; Earl Maltz, “Abortion, Precedent and the Constitution: A Comment on
Planned Parenthood v. Casey” (1992) 68 Notre Dame Law Review 11.
272 Casey (n 269) at 878. 273 Casey (n 269) at 879.
274 Casey (n 269) at 893. 275 Casey (n 269) at 894.
276 See Ronald Dworkin, “Roe Was Saved” in Ronald Dworkin, Freedom’s Law: The Moral Reading
279 Neal Devins, “How Planned Parenthood v. Casey (Pretty Much) Settled the Abortion Wars”
U.S.C. } 248.
282 Partial-Birth Abortion Ban Act (PBABA), Pub. L. 108–105 (2003), codified at 18 U.S.C.
} 1531.
283 See Stenberg v. Carhart, 530 U.S. 914 (2000) (declaring a Nebraska statute that prohibited the
Clause (granting Congress the power to regulate commerce among the several states). Some criticism
has, however, been directed to whether the regulation of the intact dilate and extraction abortion
technique represented a permissible exercise of Congress’s power under the Commerce Clause. See
generally Robert Pushaw, “Does Congress Have the Constitutional Power to Prohibit Partial Birth
Abortion?” (2005) 42 Harvard Journal on Legislation 319. The US Supreme Court did not address
this federalism concern in reviewing the PBABA in Gonzales v. Carhart, 550 U.S. 124 (2007).
285 See Garrow (n 5) 25.
286 Gonzales (n 284) at 162 (upholding the PBABA by affirming that Congress enjoys wide
the life of the unborn child) invalidated by Isaacson v. Horne, 716 F.3d 1213, 1231 (9th Cir. 2013)
(holding that under controlling US Supreme Court precedents, “Arizona may not deprive a woman of
the choice to terminate her pregnancy at any point prior to viability”).
289 Texas H.B. No. 2 (2013) (“An Act relating to the regulation of abortion procedures, providers,
Going” (2007) 68 Montana Law Review 299, 315 (arguing that “Casey has led directly to a growing
number of legislative restrictions on abortions”).
226 The Right to Abortion
waiting periods, or informed consent requirements,292 recent statutory enactments
require women to be informed about all potential medical complications that could
arise from an abortion, even those complications that are irrelevant to their particular
case,293 and require women to hear ultrasounds of the fetus.294 South Dakota recently
became the first state in the US to introduce a directive counseling requirement,
similar to the German model,295 which obliges women seeking abortion to consult
with pro-life pregnancy centers, even if they seek an abortion during the first trimester
of pregnancy.296 At the same time, a series of demanding targeted regulations for
abortion providers have also been set up in several states.297 Finally, whereas the
unenforceable pre-Roe statutory prohibitions of abortion remain on many states’
statutory books, some states have enacted so-called trigger laws, which would auto-
matically outlaw abortion if the Supreme Court were to overrule Roe.298
On the other hand, a number of states have autonomously decided to supersede
the federal standard by offering even greater constitutional protection for the right
to an abortion than the federal minimum.299 Following the lead of the California
Supreme Court—which in 1981 had already recognized that the right to “procre-
ative choice” under the California Constitution is “at least as broad as that described
in Roe v. Wade”300—nine state superior courts have concluded that their state
constitutions contain an independent right to abortion.301 In addition, lower
courts in nine other states have recognized a state constitutional right to abortion
or privacy.302 Finally, broad recognition of the right to abortion without any major
statutory limitations is provided in the legislation of several other states with the
292 See Rebecca Dresser, “From Double Standard to Double Bind: Informed Choice in Abortion
Deference, and Fetal Pain Laws” (2008) 17 Columbia Journal of Gender and Law 111.
294 See State Policies in Brief: Requirements for Ultrasound (Guttmacher Institute 2011) available at
<http://www.guttmacher.org/statecenter/spibs/spib_RFU.pdf>.
295 See text accompanying nn 87–9.
296 See H.B. 1217, 86th Sess. (S.D. 2011) (“An Act to establish certain legislative findings
pertaining to the decision of a pregnant mother considering termination of her relationship with her
child by an abortion, to establish certain procedures to better insure that such decisions are voluntary,
uncoerced, and informed, and to revise certain causes of action for professional negligence relating to
performance of an abortion”).
297 See Targeted Regulation of Abortion Providers (TRAP) (NARAL Pro-Choice America Foundation
minimum provided by federal law, see William Brennan, “State Constitutions and the Protection of
Individual Rights” (1977) 90 Harvard Law Review 489, 491.
300 See Committee to Defend Reproductive Rights v. Myers, 625 P.2d 779, 796 (Cal. 1981).
301 See e.g., Hope v. Perales, 189 A.D.2d 287 (N.Y. 1993). On the expansive interpretation of state
constitutions offered by some state courts in the field of abortion law, especially with regard to state
funding of abortion, see Janice Steinschneider, “State Constitutions: The New Battlefield for Abortion
Rights” (1987) 10 Harvard Women’s Law Journal 284, 284–7; Linda Vanzi, “Freedom at Home: State
Constitutions and Medicaid Funding for Abortions” (1996) 26 New Mexico Law Review 433.
302 See Gardbaum (n 208) 687.
Recent developments 227
consequence that, even in the unforeseeable case the Supreme Court overrules Roe,
abortion would be lawful in a plurality of US states. Because of such experimen-
tations, wide variations among states’ approaches to abortion persist today, even
though all such legislation must take place within the framework of permissible
limitations set by the US Supreme Court.303 As has been argued, the contemporary
picture of abortion regulation in the US highlights a “crazy-quilt pattern of the
laws—a diversity that resembles the diversity of state law during the ‘reform’ period
of the late 1960s.”304
In conclusion, the assessment of the US constitutional experience in the field of
abortion law highlights an evolving pattern. Historically, competence over criminal
and family law belonged to the states and, by the late 1960s, wide variations existed
in the ways in which each state regulated abortion. The Supreme Court’s Roe v.
Wade decision imposed a unifying standard, recognizing a woman’s fundamental
right to decide privately whether to continue a pregnancy and precluding states
from criminalizing abortion up to the 24th week, at viability. Since that decision,
the Supreme Court has been put under great pressure and has taken a number of
retreating steps, recognizing wider room for states to regulate abortion, albeit
within the limits of the Casey undue burden test. As a consequence, significant
differences remain today in the regulation of abortion in the several US states, but a
common floor of protection—recognizing a woman’s constitutional right to ter-
minate her pregnancy—is grounded in the Supreme Court’s interpretation of the
US Constitution.305
303 See generally Who Decides? The Status of Women’s Reproductive Rights in the United States
306 Whether the decision of the ECtHR in A., B. & C. would result in Europe’s Roe v. Wade had
been discussed as a possible (or even likely) scenario. See Shannon Calt, “A., B. & C. v. Ireland:
‘Europe’s Roe v. Wade’ ” (2010) 14 Lewis and Clark Law Review 1189; Sarah Pentz Bottini, “Europe’s
Rebellious Daughter: Will Ireland Be Forced to Conform Its Abortion Law to That of Its Neigh-
bours?” (2007) 49 Journal of Church and State 211.
307 ECHR [2010] App. No. 25579/05 (GC). 308 ECHR [2011] App. No. 27617/04.
309 ECHR [2012] App. No. 57375/08.
Recent developments 229
prohibition on abortion restricted their ECHR rights.310 They maintained that the
criminalization of abortion violated Article 3, since it produced stigma and prej-
udice against women seeking an abortion, which humiliated and degraded their
dignity. They also claimed that the prohibition of abortion was contrary to Article
14, which prohibits discrimination, and Article 13, which requires contracting
parties to the ECHR to set up effective domestic remedies to vindicate their ECHR
rights. The third applicant complained that the impossibility of obtaining advice as
to the medical implications of a pregnancy for her cancer also amounted to a
violation of Article 2, which enshrines the right to life. Finally, all the applicants
claimed that the Irish prohibition of abortion represented an undue interference
with their right to respect for private life protected by Article 8.
The ECtHR began its opinion by explaining the Irish legal framework on abortion
in great detail and reporting the criticisms and proposals for reform that had been
discussed both at the national and international levels.311 It then addressed the
admissibility issue. As far as the first two petitioners were concerned, the ECtHR
stated that they could not be required to pursue and exhaust the domestic avenues of
recourse before applying to the ECtHR as it was clear that a domestic complaint
alleging a violation of the ECHR due to the impossibility of obtaining an abortion in
Ireland for health and well-being reasons did not have “any prospect of success, going
against . . . the history, text and judicial interpretation of Article 40.3.3 of the [Irish]
Constitution.”312 As far as the third petitioner was concerned, the ECtHR underlined
how the lack of domestic legislation implementing the right to abortion to save the life
of the mother was at the core of her complaint and therefore had to be addressed on
the merits. On the substantive issues of the case, the ECtHR summarily rejected the
claim of a violation of Article 3 ECHR, arguing that the “facts alleged d[id] not
disclose a level of severity falling within the scope” of the contested provision.313 The
Court also rebuffed the third applicant’s complaint under Article 2 ECHR because
“there was no legal impediment to the third applicant travelling for an abortion
abroad.”314 The ECtHR then moved to address the alleged violation of Article 8
ECHR by considering separately the complaint of the first two applicants “that they
could not obtain an abortion for health and/or well-being reasons in Ireland,”315 and
the complaint of the third petitioner “about the absence of any legislative implemen-
tation of Article 40.3.3 of the [Irish] Constitution.”316
According to the ECtHR, although Article 8 ECHR could not “be interpreted as
conferring a right to abortion,”317 its consolidated case law made it clear that
“legislation regulating the interruption of pregnancy touches upon the sphere of
the private life of the woman,”318 protected by Article 8 ECHR.319 As a
310 A., B. & C. (n 307) para 113. 311 A., B. & C. (n 307) paras 27–112.
312 A., B. & C. (n 307) para 147. 313 A., B. & C. (n 307) para 164.
314 A., B. & C. (n 307) para 158. 315 A., B. & C. (n 307) para 167.
316 A., B. & C. (n 307) para 167. However, the ECtHR did not address the complaints under Arts
13 and 14 ECHR because, according to the ECtHR, its decision based on Art 8 was decisive and
rendered consideration of Arts 13 and 14 unnecessary.
317 A., B. & C. (n 307) para 214. 318 A., B. & C. (n 307) para 213.
319 See text accompanying n 175.
230 The Right to Abortion
consequence, “The prohibition in Ireland of abortion where sought for reasons of
health and/or well-being about which the first and second applicants complained,
and the third applicant’s alleged inability to establish her qualification for a lawful
abortion in Ireland, come within the scope of their right to respect for their private
lives and accordingly Article 8.”320 Nevertheless, the “difference in the substantive
complaints of the first and second applicants, on the one hand, and that of the third
applicant on the other, require[d] separate determination of the question whether
there ha[d] been a breach of Article 8.”321 In the ECtHR’s view, the third
applicant’s case raised an issue that had already been considered by the ECtHR:
that is, the existence of a series of positive obligations stemming from Article 8
ECHR that require the contracting parties to set up an effective legal framework at
domestic level to verify whether the conditions for obtaining a lawful abortion have
been met.322 In contrast, the first two applicants’ cases raised a novel issue: they
presented the ECtHR with the first “opportunity to develop certain general
Convention principles on the minimum degree of protection to which a woman
seeking an abortion would be entitled”323 and to expound on the negative obliga-
tions that limit the authority of the contracting parties to prohibit voluntary
termination of pregnancy.
The ECtHR reached different conclusions in the two scenarios. With regard to
the third applicant, it ruled unanimously that Ireland had violated Article 8
ECHR. By drawing heavily on the Tysiąc precedent,324 the ECtHR remarked
how Article 8 ECHR “may also impose on a State certain positive obligations”325
and that these obligations may require “the implementation, where appropriate, of
specific measures in an abortion context.”326 The ECtHR underlined how, under
the X. doctrine of the Irish Supreme Court, abortion could be obtained lawfully in
Ireland when there was a real and substantial risk to the life of the mother—as
distinct from the health of the mother—and this risk could only be avoided by
termination of the pregnancy.327 The ECtHR then noted that the case of the third
applicant would fit within this category; however, it found that no effective
mechanisms then existed under domestic law to ensure a right to an abortion in
such life-saving situations.328 The ECtHR noted a variety of factors that revealed
the inadequacy of Irish domestic law in ensuring that a woman could access an
abortion when necessary to save her life. First, the ECtHR raised “a number of
concerns as to the effectiveness of [the medical] consultation procedure as a means
of establishing the third applicant’s qualification for a lawful abortion in Ire-
land.”329 The ECtHR emphasized that no legal framework existed “whereby any
difference of opinion between the woman and her doctor or between different
doctors consulted, or whereby an understandable hesitancy on the part of a woman
or doctor, could be examined and resolved.”330 The ECtHR then remarked how
320 A., B. & C. (n 307) para 214. 321 A., B. & C. (n 307) para 214.
322 See text accompanying n 186. 323 A., B. & C. (n 307) para 193.
324 See text accompanying nn 182–92. 325 A., B. & C. (n 307) para 244.
326 A., B. & C. (n 307) para 245. 327 See text accompanying nn 107–10.
328 A., B. & C. (n 307) para 250. 329 A., B. & C. (n 307) para 253.
330 A., B. & C. (n 307) para 253.
Recent developments 231
331 A., B. & C. (n 307) para 254. 332 A., B. & C. (n 307) para 258.
333 A., B. & C. (n 307) para 258. 334 A., B. & C. (n 307) para 259.
335 A., B. & C. (n 307) para 264. 336 A., B. & C. (n 307) para 216.
337 A., B. & C. (n 307) para 242. 338 See text accompanying nn 163–70.
232 The Right to Abortion
been demonstrated to have relevantly changed since then.”339 The ECtHR hence
affirmed “that the impugned restriction . . . pursued the legitimate aim of the
protection of morals.”340 Finally, on the third question, whether the interference
with Article 8 ECHR was necessary in a democratic society, the ECtHR clarified
that in the present case, it had to “examine whether the prohibition of abortion in
Ireland for health and/or well-being reasons struck a fair balance between, on the
one hand, the first and second applicants’ right to respect for their private lives
under Article 8 and, on the other hand, profound moral values of the Irish
people.”341 Given “the acute sensitivity of the moral and ethical issues raised by
the question of abortion,”342 the ECtHR decided that Ireland enjoyed a “broad
margin of appreciation”343 in determining whether a fair balance was struck
between the two conflicting values.344
The ECtHR also examined “whether this wide margin of appreciation is nar-
rowed by the existence of a relevant consensus” among the other European states
and, significantly, underlined how “a substantial majority of the Contracting States
of the Council of Europe . . . allow[] abortion on broader grounds than accorded
under Irish law.”345 In the factual part of the decision, the ECtHR had already
remarked how:
Abortion is available on request (according to certain criteria including gestational limits) in
some 30 Contracting States. An abortion justified on health grounds is available in some 40
Contracting States and justified on well-being grounds in some 35 such States. Three
Contracting States prohibit abortion in all circumstances (Andorra, Malta and San Marino).
In recent years, certain States have extended the grounds on which abortion can be obtained
(Monaco, Montenegro, Portugal and Spain).346
Yet, despite the existence of a clear European trend in favor of the legalization of
abortion,347 the majority of the ECtHR denied that “this consensus decisively
narrow[ed] the broad margin of appreciation of the State.”348 To justify this
conclusion, the ECtHR affirmed that there was no agreement on the “scientific
and legal definition of the beginning of life”349 and that “this consensus [could] not
be a decisive factor in the Court’s examination of whether the impugned prohi-
bition on abortion in Ireland for health and well-being reasons struck a fair balance
between the conflicting rights and interests, notwithstanding an evolutive inter-
pretation of the Convention.”350 Therefore, the ECtHR denied “that the prohi-
bition in Ireland of abortion for health and well-being reasons, based as it is on the
profound moral views of the Irish people as to the nature of life . . . and as to the
consequent protection to be accorded to the right to life of the unborn, exceed[ed]
the margin of appreciation accorded in that respect to the Irish State.”351 In
339 A., B. & C. (n 307) para 226. 340 A., B. & C. (n 307) para 227.
341 A., B. & C. (n 307) para 230. 342 A., B. & C. (n 307) para 233.
343 A., B. & C. (n 307) para 233. 344 See text accompanying n 174.
345 A., B. & C. (n 307) paras 234–5. 346 A., B. & C. (n 307) para 112.
347 See Section 2. 348 A., B. & C. (n 307) para 236.
349 A., B. & C. (n 307) para 237. 350 A., B. & C. (n 307) para 237.
351 A., B. & C. (n 307) para 241.
Recent developments 233
addition, the ECtHR mentioned in passing that Irish women still had “the option
of lawfully travelling to another State”352 to seek an abortion and to receive
information about abortion services overseas. The ECtHR, however, did not
consider whether this situation was discriminatory under Article 14 ECHR, and
therefore concluded that there had been no violation of Article 8 ECHR as regards
the first and second applicants.
The decision of the majority of the ECtHR prompted a vigorous dissent by six
judges. In a joint opinion, the minority disagreed with the majority’s finding that
Ireland had not violated Article 8 ECHR with regard to the first and second
applicants and blamed the majority for “inappropriately conflat[ing] . . . the ques-
tion of the beginning of life (and, as a consequence, the right to life), the States’
margin of appreciation in this regard, with the margin of appreciation that States
have in weighing the right to life of the fetus against the right to life of the mother
or her right to health and well-being.”353 The dissenting judges argued that the
ECtHR should have considered two elements when applying the proportionality
test. The first element was the existence of a “clear . . . consensus amongst a
substantial majority of the Contracting States of the Council of Europe towards
allowing abortion.”354 According to the dissenting judges, the precedents of the
ECtHR demonstrated that, whenever a consensus existed, this “decisively narrow
[ed] the margin of appreciation” given to the member states.355 As the dissent’s
opinion emphasized, “this approach is commensurate with the ‘harmonising’ role
of the Convention’s case law: indeed, one of the paramount functions of the case
law is to gradually create a harmonious application of human rights protection,
cutting across the national boundaries of the Contracting States and allowing
the individuals within their jurisdiction to enjoy, without discrimination, equal
protection regardless of their place of residence.”356 Given the existence of a
“strong” consensus in the case at hand,357 according to the dissenting judges, the
decision of the ECtHR to refrain from narrowing the margin of appreciation
granted to Ireland out of concern for the profound moral values of the Irish
people amounted to a “real and dangerous” disregard of established precedents.358
Indeed, in the dissenters’ view, it is only when no European consensus exists that
the ECtHR should “refrain[] from playing its harmonising role, preferring not
to become the first European body to ‘legislate’ on a matter still undecided at
European level.”359 The second element that, according to the dissenting judges,
the ECtHR should have considered when applying the proportionality test was the
“striking”360 severity of “the (rather archaic) law,”361 which punished abortion in
362 See text accompanying n 98. This has now been changed by the July 2013 Protection of Life
During Pregnancy Act—but the sentence remains significantly harsh. See text accompanying n 120.
363 A., B. & C. (n 353) para 11.
364 For early comments on the decision, see Alessandra Osti, “Corte europea dei diritti: acceler-
azione della legalizzazione dell’aborto in Irlanda?”[2011] Quaderni Costituzionali 156 and Elizabeth
Wicks, “A., B. and C. v. Ireland: Abortion Law Under the European Convention on Human Rights”
(2011) 11 Human Rights Law Review 556.
365 See text accompanying nn 115–20.
366 ECHR [2011] App. No. 27617/04. 367 See text accompanying n 93.
368 R. R. (n 366) para 187 (quoting A., B. & C., para 249).
Recent developments 235
369 R. R. (n 366) para 203. 370 R. R. (n 366) para 208. 371 R. R. (n 366) para 214.
372 R. R. (n 366) para 148. 373 R. R. (n 366) para 153. 374 R. R. (n 366) para 159.
375 R. R. (n 366) para 159. 376 R. R. (n 366) para 159. 377 R. R. (n 366) para 160.
378 P. & S. (n 309) para 8. 379 See text accompanying n 93.
236 The Right to Abortion
found the case admissible holding that the girl was still a victim under the terms of
the ECHR for the way in which her case had been treated by both medical
personnel and the public authorities.380 In fact, as the ECtHR underlined:
The events surrounding the determination of the . . . applicant’s access to legal abortion were
marred by procrastination and confusion. The applicant [and her mother] were given
misleading and contradictory information. They did not receive appropriate and objective
medical counselling which would have due regard to their own views and wishes. No set
procedure was available to them under which they could have their views heard and properly
taken into consideration with a modicum of procedural fairness.381
According to the ECtHR, the uncertainty arising in the present case “resulted in a
striking discordance between the theoretical right to such an abortion on the
grounds referred to in [the Polish law] and the reality of its practical implementa-
tion.”382 As such, the ECtHR held that the failure by the authorities “to comply
with their positive obligations to secure to the applicants effective respect for their
private life” amounted to a violation of Article 8 ECHR as regards the determi-
nation of access to lawful abortion.383 Moreover, having regard to the circum-
stances of the case, which also involved violations by the police of Article 5 ECHR
in the temporary arrest of the girl and of Article 8 ECHR in the decision by the
hospital to publish information about the applicant, the ECtHR held that the
“applicant was treated by the authorities in a deplorable manner and that her
suffering reached the minimum threshold of severity under Article 3 ECHR.”384
Overall, therefore, the analysis of the latest judicial developments in the case law
of the ECtHR reveals an upward supervision by the ECtHR of state abortion laws.
Yet, it makes clear that Europe has not had its Roe v. Wade moment.385 In A., B. &
C. v. Ireland, the majority of the Grand Chamber rejected a facial challenge against
the Irish abortion ban, relying instead on the positive duty of the state under Article 8
ECHR as the main avenue for demanding reform at the state level. This procedural
approach—which has been followed in R. R. v. Poland, and P. & S. v. Poland,
where the ECtHR also took the step of finding a violation of Article 3 ECHR in the
Polish authorities’ inept handling of the request to obtain an abortion in cases of
fetal impairment and pregnancy resulting from rape—has rendered the tensions
between transnational human rights standards and state abortion regimes less
dramatic. When compared with the position of the US Supreme Court, which
tackled head-on state laws prohibiting abortion, the ECtHR has been more
sensitive to the need to protect the identity of the EU member states with strong
feelings on such a sensitive issue. Arguably, therefore, by so far keeping a relatively
low floor for the protection of abortion rights, and developing this in an incre-
mental way, the ECtHR has avoided the rage faced by the US Supreme Court
for its decision to set a fairly advanced standard for the protection of abortion
380 P. & S. (n 309) para 83. 381 P. & S. (n 309) para 108.
382 P. & S. (n 309) para 111. 383 P. & S. (n 309) para 112.
384 P. & S. (n 309) para 168. 385 See Calt (n 306) 1189.
Future prospects 237
rights throughout the US.386 Nonetheless, the prudence of the ECtHR needs to be
addressed from a broader perspective, which also takes into account the transfor-
mations in action in the EU constitutional system.
386 See Robert Post and Reva Sigel, “Roe Rage: Democratic Constitutionalism and Backlash”
(2007) Harvard Civil Rights—Civil Liberties Law Review 373. See also Judith Resnik, “The Produc-
tion and Reproduction of Constitutional Norms” (2011) 35 NYU Review of Law and Social
Change 226.
387 See Marta Cartabia, “I diritti fondamentali e la cittadinanza dell’Unione” in Franco Bassanini
and Giulia Tiberi (eds), Le nuove istituzioni europee: Commento al Trattato di Lisbona 81 (Il Mulino
2008); Giacomo di Federico, “Fundamental Rights in the EU: Legal Pluralism and Multi-Level
Protection After the Lisbon Treaty” in Giacomo di Federico (ed), The EU Charter of Fundamental
Rights (Springer 2009) 15.
388 See Alessandra Giannelli, “L’adesione dell’Unione europea alla CEDU secondo il Trattato di
Lisbona” [2009] Diritto dell’Unione Europea 684; Francis Jacobs, “The European Convention on
Human Rights: The EU Charter of Fundamental Rights and the European Court of Justice” in Ingolf
Pernice et al (eds), The Future of the European Judicial System in Comparative Perspective (Nomos
2006) 291.
238 The Right to Abortion
In addition, pursuant to the new Article 6(1) of the EU Treaty (TEU), the Charter,
which was only proclaimed in 2001 by the EU institutions, has now acquired the
“same legal value” as the other EU Treaties—that is, the formal status of EU
constitutional law.389 The Charter is the first written EU Bill of Rights390 and was
initially conceived as a codification of the fundamental rights recognized by the
ECJ. The Charter, however, contains a complete and coherent catalogue of rights
that extends well beyond a mere jurisprudential restatement.391 Hence, the Charter
includes a number of provisions that are relevant to the issue of abortion including
the right to life,392 the protection of private life,393 and the recognition of a general
principle of equality without discrimination.394
The Charter binds the EU institutions and the member states when they act
within the scope of application of EU law.395 In its latest case law, the ECJ has
shown its willingness to interpret the scope of application of the Charter broadly,
hence subjecting the member states to compliance with EU fundamental rights law
in a plurality of contexts.396 Yet, even if the ECJ were to retract on the point, it
would still seem that the Charter would be applicable in the field of abortion law.
Since the ECJ had already acknowledged in Grogan that abortion constitutes a
service within the meaning of EU law,397 it would appear that any national
regulation on abortion would fall within the scope of application of EU law and
would thus be subject to compliance with the fundamental rights principles
contained in the Charter.398 At the same time, whereas in the early 1990s, in the
Grogan case, the ECJ was able to circumvent the Irish domestic ban on information
about abortion services on purely economic grounds,399 it would seem that today,
given the binding nature of the Charter, any possible challenge to a national
measure restricting abortion would inevitably require the ECJ to consider the
human rights issues involved in the case. This clearly shifts the theoretical
389 See Emanuelle Bribosia, “L’avenir de la protection de droits fondamentaux dans l’Unione
Européenne” in Giuliano Amato et al (eds), Genesis and Destiny of the European Constitution (Bruylant
2007) 995; Julianne Kokott and Christoph Sobotta, “The Charter of Fundamental Rights of the
European Union After Lisbon,” EUI Working Papers—Academy of European Law No. 6, 2010.
390 Koen Lenaerts and Eddy de Smijter, “A Bill of Rights for the European Union” (2001) 38
Rights at the Core of the European Union” (2000) 37 Common Market Law Review 1307; Luigi
Daniele, “La protezione dei diritti fondamentali nell’Unione europea dopo il Trattato di Lisbona: un
quadro d’insieme” [2009] Diritto dell’Unione Europea 645.
392 Art 2. Charter. 393 Art 7. Charter. 394 Art 21. Charter.
395 See Piet Eeckhout, “The EU Charter of Fundamental Rights and the Federal Question” (2002)
question of the scope of application of the Charter vis-à-vis the states, see recently Koen Lenaerts,
“Exploring the Limits of the EU Charter of Fundamental Rights,” (2012) 8 European Constitutional
Law Review 375.
397 See text accompanying nn 139–41.
398 See Lawson (n 121) 174 (arguing that, in regard to the Grogan decision, “it seems inevitable that
the ECJ will sooner or later be confronted with the same matter”).
399 See Cole (n 3) 126; Phelan (n 122) 686.
Future prospects 239
400 See Giorgio Sacerdoti, “The European Charter of Fundamental Rights: From a Nation-State
Europe to a Citizens’ Europe” (2002) 8 Columbia Journal of European Law 37; Rick Lawson,
“Human Rights: The Best is Yet to Come” (2005) 1 European Constitutional Law Review 27.
401 See Koen Lenaerts and Eddy de Smijter, “The Charter and the Role of the European Courts”
(2001) 8 Maastricht Journal of European and Comparative Law 90; Antonio Bultrini, “I rapporti tra
Carta dei diritti fondamentali e CEDU dopo Lisbona: una straordinaria occasione di sviluppo per la
tutela dei diritti umani in Europa” [2009] Diritto dell’Unione Europea 700.
402 See Stefano Amedeo, “Il Protocollo n. 30 sull’applicazione della Carta a Polonia e Regno Unito
e la tutela ‘asimmetrica’ dei diritti fondamentali: molti problemi, qualche soluzione” [2009] Diritto
dell’Unione Europea 720; Catherine Barnard, “The ‘Opt-Out’ for the UK and Poland from the
Charter of Fundamental Rights: Triumph of Rhetoric Over Reality?” in Stefan Griller and Jacques
Ziller (eds), The Lisbon Treaty: EU Constitutionalism without a Constitutional Treaty? (Springer
2010) 257.
403 Protocol No. 30, OJ 2010 C 83/314.
404 For a more detailed discussion of this issue, see Chapter 4. See also Barnard (n 402) 270.
405 See Czerwinski (n 94) 663.
406 See Jacques Ziller, nuovo Trattato europeo (Il Mulino 2007) 170.
240 The Right to Abortion
by the Czech Republic on the Charter. In light of the Grogan case, it is uncertain
whether these provisions will effectively prevent the ECJ from ruling on a new
abortion case: any such ruling, in fact, would not be an extension of the regulatory
competences of the EU.407 Still, importantly, the EU Treaties contain other ad hoc
clauses designed to protect specific national abortion laws.408 In its 2003 Accession
Agreement to the EU, Malta obtained a special provision, Protocol No. 7, which
leaves unaffected “the application in the territory of Malta of national legislation
relating to abortion.”409 Moreover, the consolidated version of the EU Treaties post-
Lisbon has preserved the 1992 Irish Protocol (renumbering it as Protocol No. 35),410
ensuring that “nothing in the [EU Treaties] shall affect the application in Ireland of
Article 40.3.3 of the Constitution of Ireland.”411 The December 2008 Conclusions
adopted by the European Council after the rejection of the Lisbon Treaty in the first
Irish referendum of 2008, and paving the way to the second, successful, Irish
referendum in 2009,412 provided an additional “guarantee that the provisions of
the Irish Constitution in relation to the right to life . . . and the family are not in any
way affected by the fact that the Treaty of Lisbon attributes legal status to the EU
Charter of Fundamental Rights.”413
Legal scholars debate whether these provisions of the EU Treaties can be truly
effective.414 Contrary to the purely political Declarations, the Additional Protocols
have the same legal value as the EU Treaties. However, Jacques Ziller has argued,
for instance, that Protocol No. 30 “is totally useless: it cannot prohibit lawyers from
requesting the application of the rights codified in the Charter.”415 In addition, if
one considers that Protocol No. 30 purportedly only aims at “clarifying the
application of the Charter in relation to the laws and administrative action of
Poland and the United Kingdom and of its justiciability within Poland and the
United Kingdom,” it would seem that its effect is not to opt out of the Charter.416
Rather, Protocol No. 30 “is an exercise in smoke and mirrors,” largely motivated by
presentational reasons.417 At the same time, the concessions granted in the Irish
and Maltese abortion Protocols, as well as the political reassurances that the
and Poland only insofar as the social rights contained in Title IV of the Charter are concerned). See also
Art 1(2) of Protocol No. 30, OJ 2010 C 83/314 (affirming that “for the avoidance of doubt, nothing in
Title IV of the Charter creates justifiable rights applicable to Poland or the United Kingdom”).
417 Barnard (n 402) 283.
Future prospects 241
European Council made to Ireland after the first unsuccessful referendum on the
Lisbon Treaty, reveal a pattern. These concessions reflect a trend to accommodate
in the EU Treaties “the distrust of several states toward the EU”418 and its human
rights instruments. In this context, it is not easy to imagine that the ECJ will, in
practice, fully incorporate the fundamental rights guarantees included in the Char-
ter within the legal systems of the member states, along the lines pursued by the US
Supreme Court in its gradual incorporation of the Bill of Rights into the legal
systems of the states.419 Nor is it easy to imagine that the ECJ will inaugurate a
review of domestic legislation limiting abortion rights for its compatibility with the
transnational human rights standard enshrined in the Charter at any time in the
near future.
Nonetheless, as Miguel Maduro has argued, the Charter has a double constitu-
tional life.420 On the one hand, it is regarded as “a simple consolidation of the
previous fundamental rights acquis aimed at guaranteeing regime legitimacy.”421
On the other, it can be seen as “a bill of rights of a political community, a
constitutional document that is part of a complete political contract among citizens
and that therefore legitimises new claims and an increased incorporation at the state
level.”422 At the moment, it is impossible to predict which of these two visions will
prevail. Yet, the US experience with its Bill of Rights demonstrates that “intentions
and outcomes may differ greatly.”423 Nothing precludes the Charter from becom-
ing a powerful harmonizing element that sets the minimum human rights standard
with which states must comply. De jure condendo, a similar development may even
be advisable in the field of abortion rights on the basis of an equality argument. I do
not intend to articulate here a complete normative theory of equality as a justifi-
cation for protecting the right to abortion in Europe, comparable to the claims
made by a number of distinguished US scholars in favor of grounding the central
premise of Roe v. Wade in the Equal Protection Clause of the Fourteenth Amend-
ment to the US Constitution.424 What I want briefly to suggest, however, is that in
the European context, too, the regulation of abortion raises a number of equality
418 Ziller (n 406) 170. See also Steve Peers, “The ‘Opt-Out’ that Fell to Earth: The British and the
Polish Protocol Concerning the EU Charter of Fundamental Rights” (2012) 13 Human Rights Law
Review 375.
419 See Jochen Frowein, Stephen Schulhofer, and Martin Shapiro, “The Protection of Fundamental
Rights as a Vehicle of Integration” in Mauro Cappelletti et al (eds), Integration Through Law: Europe
and the American Federal Experience. Vol. 1, Book 3 (de Gruyter 1986) 231 (examining whether the
process of incorporating the fundamental rights standards contained in the federal Bill of Rights could
possibly also take place in the European context). For a more detailed discussion of this topic see also
Chapters 1 and 6.
420 Miguel Poiares Maduro, “The Double Constitutional Life of the Charter of Fundamental
Rights of the European Union” in Tamara Hervey and Jeff Kenner (eds), Economic and Social Rights
Under the EU Charter of Fundamental Rights (Hart Publishing 2003) 269.
421 Maduro (n 420) 269. 422 Maduro (n 420) 292.
423 Maduro (n 420) 299 (recalling how the US Bill of Rights was adopted under pressure from
those who opposed the federation, but it later constituted one of the most important elements of
federal control over the states).
424 See Regan (n 267) 1569; Ginsburg (n 267) 385; Siegel (n 287) 1694.
242 The Right to Abortion
concerns.425 In fact, in a multilevel constitutional system, states’ bans on abortion
can produce discriminatory effects that are hard to accept.
In the previous sections, I explained how a minority of EU member states,
notably Ireland, Poland, and Malta, have enacted extremely restrictive abortion
laws, prohibiting women from obtaining an abortion in their home states except
when necessary to save their lives or protect against grave injury to their health.426
At the same time, women residing in these states have a right—protected under EU
law and ECHR law (and now often also codified under domestic law)—to be
informed about abortion providers in other EU countries. In addition, women in
these countries have the right to travel abroad if they want to terminate their
pregnancies.427 Women are able to exercise these rights without facing any risk of
prosecution or subjection to the severe domestic criminal sanctions against abor-
tion.428 The possibility for a woman to escape the restrictive domestic abortion ban
by going abroad and to avoid prosecution in her home state has shaped the
jurisprudence of the European supranational courts.429 In fact, this go-around is
precisely what prompted AG Van Gerven in Grogan to conclude that the Irish ban
on information about abortion services was not disproportionate.430 In his Opin-
ion, AG Van Gerven clearly affirmed that “a ban on pregnant women going abroad
or a rule under which they would be subjected to unsolicited examinations upon
their return from abroad”431 would never be tolerated under EU law. Furthermore,
the ECtHR cited the fact that the Irish law granted women the ability to opt out of
the abortion ban by “lawfully travelling to another State”432 as one of the justifi-
cations for its ruling in A., B. & C. v. Ireland.433
The consequence of all this is that the Irish and Polish domestic abortion bans,
and their equivalents, effectively constrain only those women who cannot sidestep
the national prohibition by travelling to another EU state.434 In other words, these
425 See Ronald Dworkin, “What the Constitution Says” in Ronald Dworkin, Freedom’s Law: The
Moral Reading of the American Constitution (Harvard UP 1996) 110 (providing a liberal jurisprudential
statement that the right to abortion is linked to a “moral reading” of the constitutional principles of
liberty and equality). But see Dworkin (n 12) (grounding the right to procreative autonomy in the
constitutional principle of freedom of religion).
426 See Section 2. 427 See Section 3.
428 See Abigail-Mary Sterling, “The European Union and Abortion Tourism: Liberalizing Ireland’s
Abortion Law,” (1997) 20 Boston College International and Comparative Law Review 385. For a
comparative perspective, see generally Seth Kreimer, “The Law of Choice and the Choice of Law:
Abortion, the Right to Travel and Extraterritorial Regulation in American Federalism” (1992) 67 NYU
Law Review 451.
429 Indeed, it could even be argued that because women can theoretically overcome restrictive bans
on abortion by leaving their home countries for the abortion, the European supranational courts are
more protective of the member states’ autonomy to ban abortions since, viewed from one perspective,
any such ban is not absolute.
430 See Grogan (n 124), Opinion of AG Van Gerven, para 29.
431 Grogan (n 124) Opinion of AG Van Gerven, para 29.
432 A., B. & C. (n 307) para 239. 433 See text accompanying n 352.
434 See Cook and Dickens (n 16) 59 (describing the socially discriminatory impact that bans on
abortion produce). See also Council of Europe Parliamentary Assembly, Resolution 1607 (2008), } 4
(remarking that “a ban on abortions does not result in fewer abortions but mainly leads to clandestine
abortions, which are more traumatic and increase maternal mortality and/or lead to abortion ‘tourism’
which is costly, and delays the timing of an abortion and results in social inequities”). For further data
Future prospects 243
laws only prohibit abortion for those women who do not possess sufficient private
economic resources to go abroad to terminate their pregnancies. This situation is
clearly discriminatory, as the undue burden of an unwanted pregnancy is only
imposed on women with low income.435 Nevertheless, in its argument before the
ECtHR in A., B. & C. v. Ireland, the Irish government, while openly acknowledging
that in 2007 at least 4,686 women travelled to the UK to have an abortion,436 still
resolutely argued that Ireland’s high protection of the unborn child’s right to life
justified a domestic prohibition on abortion.437 In the same case, the majority of the
ECtHR did not address whether the Irish abortion ban was compatible with the non-
discrimination clause of the ECHR. The Grand Chamber majority laconically stated
that “[although] it may even be the case . . . that the impugned prohibition on abortion
is to a large extent ineffective in protecting the unborn in the sense that a substantial
number of women take the option open to them in law of travelling abroad for an
abortion not available in Ireland . . . it is not possible to be more conclusive.”438
Yet, a legal regime that discriminates between women by making abortion
possible and lawful only for the women who can financially afford it and making
it impossible and unlawful for those who cannot, conflicts with the principles of
equality that should govern any liberal democratic constitutional system.439 From
this point of view, Article 21 of the Charter codifies a general principle of equality
in the EU basic laws for the first time and expressly prohibits any discrimination on
grounds of property.440 De lege ferenda, therefore, it might be desirable for the ECJ,
concerning the number of women travelling abroad to seek abortion, see Mark Hennessy, “Money
Plays Ever Increasing Role in Decisions of Irish Women to Travel,” The Irish Times, 17 December
2010; Steve Clements and Roger Ingham, “Improving Knowledge Regarding Abortions Performed on
Irish Women in the UK,” Crisis Pregnancy Agency Report No. 19, 2007, available at <http://www.
crisispregnancy.ie/pub/CPA%20Abortion%20Trends%2019.pdf>; Reproductive and Health Supplies
in Central and Eastern Europe (Astra Network 2009) available at <www.astra.org.pl/PAI%20astra%
20report%202009.pdf>. See also the reports of the UN Human Rights Committee: CCPR/C/IRL/
CO/3, Concluding Observations on Ireland, 30 July 2008, para 13; CCPR/CO/82/POL, Concluding
Observations on Poland, 2 December 2004, para 8.
435 See Regan (n 267) 1569 (arguing that laws forbidding abortion require women to behave as
Samaritans—i.e. impose on them a burden to volunteer aid which affects their interest in freedom from
serious physical invasion).
436 A., B. & C. (n 307) para 183. 437 A., B. & C. (n 307) para 185.
438 A., B. & C. (n 307) para 239.
439 The discriminatory effects produced by a ban on abortion have also been highlighted by the
2010) 513; Dimitry Kochenov, “Citizenship Without Respect: The EU’s Troubled Equality Ideal,”
Jean Monnet Working Paper No. 8, 2010.
441 On the inescapable role that the judiciary plays in addressing the moral issues involved in
abortion and to remedy inequalities, see Susanna Mancini and Michel Rosenfeld, “The Judge as a
Moral Arbiter? The Case of Abortion” in András Sajó and Renata Uitz (eds), Constitutional Topog-
raphy: Values and Constitutions (Boom Eleven 2010).
442 It is interesting to note that this position has been publicly articulated by Supreme Court Justice
Ruth Bader Ginsburg—who has been a strong defender in her extra-judicial work of the right to
abortion: see Ginsburg (n 267) 376 (arguing that “Roe v. Wade sparked public opposition and
academic criticism, in part, I believe, because the Court ventured too far in the change it ordered.”)
(internal citations omitted). But see Linda Greenhouse and Reva Siegel, “Before (and After) Roe v.
Wade” (2011) 120 Yale Law Journal 2028 (challenging the narrative of the backlash and suggesting
that other factors beside the decision of the US Supreme Court triggered polarization in the abortion
debate).
443 See text accompanying n 345.
444 On the importance of consensus in adjudication by transnational tribunals, see Eyal Benvenisti,
“Margin of Appreciation, Consensus and Universal Standard” (1999) 31 NYU Journal of International
Law and Politics 843.
445 See Lawson (n 400) 36; Lenaerts and de Smijter (n 390) 273.
Future prospects 245
laws, including abortion laws.446 As things now stand, the European abortion
regime reflects what may be called a system of “hard pluralism.”447 Despite the
existence of a growing consensus among the EU member states in favor of legalizing
abortion, relevant regulatory differences persist among European countries. The
rise of supranational law through the case law of the ECJ and the ECtHR has placed
growing constraints upon, and new challenges for, the regulatory autonomy of the
member states, but has not reached the point of prohibiting states from maintain-
ing bans on abortion. Thus, while the possibility for pregnant women to travel from
one state to another to seek termination of pregnancy is solidly grounded in the
fabric of both EU and ECHR law, the transnational floor for protecting abortion
rights enforced throughout Europe is still low.
Yet, from a normative standpoint, the existence of strict national abortion bans
in a multilevel system in which resourceful women can evade the domestic
restrictions by travelling to other EU states has discriminatory effects that under-
mine the principle of equality. In this situation, if the ECJ, in cooperation with
national courts, were to review under the Charter the most restrictive domestic
abortion laws, it could foster the establishment of a less discriminatory legal regime.
Such a regime may be called a system of “soft pluralism.” Within this framework, a
woman’s right to an elective abortion, at least in the early stages of pregnancy,
would be recognized at the supranational level, while states would still be free to
integrate (or qualify or supersede, but not impair) this supranational standard to
reflect their domestic policy preferences. Indeed, as the US experience with abor-
tion rights shows, the imposition of a uniform transnational standard that does not
allow for any local variation is bound to fail in a federal union that is premised upon
states maintaining a meaningful degree of autonomy.448 At the same time, a
minimum standard across the federal, multilevel architecture to protect a woman’s
right to choose whether to terminate her pregnancy appears to be a necessary
condition for avoiding discrimination and for ensuring a single and comprehensive
vision of justice for all members of the polity.449 Whether the European abortion
regime will evolve from a system of hard pluralism to one of soft pluralism,
Experience” (1986) 61 Washington Law Review 1081, repr. in Thoughts from a Bridge: A Retrospective
of Writings on New Europe and American Federalism (Michigan UP 2000) 309.
449 Ronald Dworkin, Law’s Empire (Harvard UP 1986) 134.
246 The Right to Abortion
however, depends on the future role of the Charter and “its potential for polity
building in the EU.”450
7. Conclusion
This chapter has analyzed the constitutional implications that arise in the field of
abortion law from the complex interaction between national and supranational
standards in Europe. Section 2 surveyed the main regulatory models that emerge
from the states’ legislation and practice in the area of abortion law. It underlined the
growing trend in favor of the protection of a right to voluntary termination of
pregnancy in Europe and the exceptions to this consensus, reflected in the strong
disapproval of abortion in the laws of countries such as Ireland and Poland. Section 3
examined the rising impact of EU and ECHR law in the field of abortion law and
explained how the case law of the ECJ and the ECtHR has increasingly produced a
set of substantive checks and procedural balances on the autonomy of the member
states in the regulation of abortion. During the last two decades, European supra-
national courts have been slowly but steadily raising the floor for the protection of the
right to abortion, putting pressure on those member states with very restrictive
domestic regimes, while leaving states with more advanced legal frameworks for the
protection of the right to abortion free to maintain their legislation.
The overlap and interplay between domestic and transnational norms in the
European multilevel architecture has therefore generated a challenge of inconsist-
ency in the area of abortion law. Section 4 made it clear that the constitutional
dynamics at play in the European multilevel system are neither unique nor
exceptional. A comparative assessment highlighted that strong tensions have also
characterized the constitutional experience of the US. While states’ abortion laws
differed profoundly in the early 1970s, the Roe v. Wade decision of the US Supreme
Court established a federal constitutional right for women to terminate their
pregnancies until viability. The recognition of a federal floor for the protection of
the right to an abortion left untouched states with advanced regimes for the
protection of abortion rights, but produced serious pressures in those states
which instead regarded as paramount the protection of the life of the unborn.
While the US Supreme Court has confirmed Roe’s central premise—that women
have a constitutional right to terminate pregnancy—subsequent decisions have
therefore returned more powers to the states in regulating the conditions for access
to abortion. Today, a plurality of regulatory models is in place throughout the US,
but a minimum standard for the protection of the right to abortion is secured to all
women and cannot be subject to undue burdens by the states.
450 See Maduro (n 420) 292. Incidentally, it should be noted that the considerations developed
here with reference to Europe and the discriminatory effects that strict state abortion laws can produce
in a federal system can be applied, ceteris paribus, to the US. For a discussion of these issues in a
hypothetical post-Roe scenario, see Fallon (n 262) 647.
Conclusion 247
1. Introduction
The aim of this book has been to examine the constitutional dynamics emerging in
the European multilevel human rights architecture from the overlap and interplay
between national and supranational human rights standards. In Chapter 1 I explained
my choice to adopt a comparative perspective to answer this research question and—
on the basis of the insights drawn from a comparison with the US federal system—I
advanced a model of the constitutional dynamics at play in the European regime.
Chapters 2, 3, 4, and 5 then tested this model in four case studies—the right to due
process in counter-terrorism, the right to vote, the right to strike, and the right
to abortion. At this point, it is time to pull together the evidence collected in the
previous chapters and draw some conclusive remarks on the protection of funda-
mental rights in the European multilevel system. The case studies confirmed the
validity of the analytical model of the interaction between multiple layers of human
rights protection. At the same time, they revealed a number of recurrent patterns in
the field of human rights in Europe which contribute to a better understanding of
how the European architecture works. And they offered an instructive prism to look
at the story of the evolution of the European multilevel system and its comparator:
the US federal regime.
Yet, the case studies, as reconceptualized in the analytical model of challenges
and transformations, also shed new light on the theoretical dimension, prompting a
reconsideration of the normative perspectives so far advanced in constitutional
scholarship on the protection of fundamental rights in Europe. To this end, this
chapter looks anew at the main theoretical approaches discussed in Chapter 1—
sovereigntism and pluralism—and underlines how their core normative prescrip-
tions appear weakened by the results reached in this book. In particular, the chapter
argues that sovereigntism is correct in stressing, from a normative perspective, the
existence of several difficulties in the functioning of the European multilevel
regime, but it is wrong in suggesting de jure condendo that the solution to these
shortcomings should be found by making the states the ultimate decision-makers
on matters of rights. Equally, pluralism is correct in emphasizing, from a normative
viewpoint, the added value of multiple layers of human rights norms in Europe, but
it is wrong in either perceiving this reality as problem-free, or arguing that judicial
Four case studies 249
dialogue is the solution to all the difficulties that arise in a multi-layered regime. By
building on the analysis undertaken above, this chapter claims that a new theory of
the protection of fundamental rights in Europe is needed.
While not engaging directly in a full-blown effort of theory-building, the chapter
identifies the key dilemmas that such a theory ought to address and provides some
final arguments on why it would inevitably fit a “federal” vision. As I shall make
clear, a new theory for the protection of fundamental rights in Europe would need
to face squarely the dilemmas of identity, equality, and supremacy. The only theory
that has so far been able to reconcile these three contradictory claims has been the
theory of federalism, as distinct from the theory of the federal state. In fact, while
in the European context federalism has ended up becoming a theory of the state, in
other traditions (notably in the experience of the US) federalism has represented the
normative framework underpinning an experiment in achieving governance for a
union of states. In the field of fundamental rights, therefore, federalism has been a
successful normative theory to guide the functioning of a multi-layered regime in
which identity, equality, and supremacy have been combined and recombined
throughout history. The challenge for European constitutional scholarship is to
develop a new federal vision—a “neo-federal” theory—which is able to frame the
dilemmas at the heart of the European multilevel architecture for the protection of
human rights.
The chapter is structured as follows. In section 2 I summarize the main features
of the four case studies examined in the previous chapters. In section 3 I compare
the case studies and underline the existence of three recurrent patterns in the
protection of human rights in Europe. In section 4 I review the stories of the
protection of fundamental rights and the pace of integration in Europe and
the US. Here I emphasize how the two regimes have undergone analogous processes,
but stress the different trajectories of evolution that can be detected in the field of
voting rights, the right to strike, and abortion. In section 5 I reframe the model
I hypothesized in Chapter 1 and underline how this framework provides a compre-
hensive explanatory and predictive device to make sense of the dynamics at play in
the European multilevel regime. Finally, in section 6 I move from practice to theory
and discuss the prescriptive lessons that can be drawn from the analytical framework
previously developed. As I shall endeavor to explain, the analysis of the dynamics of
the European multi-layered regime questions the normative prescriptions of the
sovereigntist and pluralist theories and demands steps toward a new theory on the
protection of fundamental rights in Europe, which—for the reasons I will point out
in section 7—will have to reflect a “neo-federal” vision.
1 See e.g., BGHSt 49, 112 (2004) (German Supreme Court annulling a lower court decision
convicting a suspected terrorist, holding that the impossibility for the accused to challenge the evidence
against him—because the evidence had been withheld by the German secret services—represented a
violation of the right to a fair trial).
2 See e.g., C.E. No. 262626, Association Secours Mondial de France, judgment 3 November 2004
(French Council of State reviewing the ministerial decision to blacklist an entity suspected of financing
terrorism only under the lowest intensity standard of review); R. (On the application of Al-Jedda) v.
Secretary of State [2007] UKHL 58 (UK House of Lords holding that an act authorized by the UN
Security Council escapes review for compatibility with the ECHR).
3 Case T-351/01 Yassin A. Kadi v. Council of the EU and Commission of the EC [2005] ECR
II-3649.
4 See Printz v. United States, 521 U.S. 898 (1997) (declaring unconstitutional a federal statute
enhanced the federal due process standard for suspected terrorists.5 Equally, in
Europe it was the milestone decision of the EU Court of Justice (ECJ) in Kadi to
overrule the CFI and to review the legality of the EU counter-terrorism measures
that filled the gap in the protection of due process rights at the EU level, and
assuaged tensions with the national courts.6 Judicial recognition of an advanced
standard of due process protection now appears to be secured by the forthcoming
accession of the EU to the ECHR. Recently, the European Court of Human Rights
(ECtHR) proved willing to provide extensive protection to due process rights in
counter-terrorism.7 Under the prospect of accession, in the Kadi II ruling of July
2013 the ECJ confirmed the promise of its earlier judgment and, disavowing the
advice of the Advocate General, excluded any watering down of the EU due process
standard in the field of counter-terrorism.8
The case of voting rights for non-citizens offered an example of the challenge of
inconsistency. Traditionally, in Europe the definition of the boundaries of the
electorate was a prerogative of the member states, which were endowed with very
diverse regulations—some states (notably the UK and Ireland)9 expanding the
franchise for selected classes of aliens even in national elections, and others (e.g.,
Germany and Austria)10 following a very restrictive nation-based conception of the
polity, which regarded any extension of the suffrage to non-citizens as unconstitu-
tional. The EU Maastricht Treaty of 1992 however, established a right to vote at
local and supranational level for EU citizens residing in an EU member state of
which they are not nationals (so-called “second-country nationals”), generating a
major change in Europe:11 by requiring member states to open their polling
5 See Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (finding the procedural rules before the military
commissions to be in violation of due process standards); Boumediene v. Bush, 553 U.S. 723 (2008)
(holding the jurisdiction-stripping provision of the Military Commission Act unconstitutional).
6 Joined Cases C-402/05 P and C-415/05 P Kadi & Al Barakaat International Foundation v. EU
Council and Commission [2008] ECR I-6351 (overruling the decision of the CFI). See also Case
C-550/09 Criminal Proceedings against E. and F. [2010] ECR I-6213 (holding that national courts
should not use the EU blacklisting of an organization in violation of due process rights as the basis for
criminal convictions at the state level).
7 See Nada v. Switzerland, ECHR [2012] App. No. 10593/08 (GC) (ECtHR holding Switzerland
in violation of the ECHR for the implementation of sanctions decided by the UN Security Council).
8 Joined Cases C-584/10 P, C-593/10 P and C-595/10 P Commission, Council and United
Kingdom v. Kadi, judgment of 18 July 2013, nyr (reaffirming the supremacy of due process principles).
9 See e.g., Representation of the People Act 1983, 31 Eliz. 2, c. 2, s 2(1)(c) (as amended) (Eng.)
(extending the right to vote for the Westminster Parliament to anyone who “is either a Commonwealth
citizen or a citizen of the Republic of Ireland” and permanently resides in the UK); Ninth Am. Const.
Ir., codified as Art 16.1.2. (stating that “(i) All citizens, and (ii) such other persons in the State as may
be determined by law, without distinction of sex who have reached the age of eighteen years who are
not disqualified by law and comply with the provisions of the law relating to the election of members of
the House of Representatives, shall have the right to vote at an election for members of the House of
Representatives”).
10 See e.g., BVerfGE 63, 37 (1990) (German Federal Constitutional Court declaring a Land statute
which extended voting rights to non-citizens incompatible with the constitutional requirement that the
right to vote be restricted to the German “Volk”); VfSlg 17.264/2004 [2004] (Austrian Constitutional
Court holding a Land bill allowing third-country nationals to participate in local elections unconsti-
tutional for violation of the principle of homogeneity of the electoral body).
11 See Art 19 TEC (voting rights for EU citizens residing in another member state); Directive 93/
109/EC, OJ 1993 L 329/34 (exercise of the right to vote and stand as a candidate in elections to the
252 The Protection of Fundamental Rights in Europe
stations to several groups of non-citizens, EU law placed the restrictive conceptions
of voting rights that existed in some member states under pressure, while leaving
other member states free to provide an even more advanced standard of protection
in the field of electoral rights than that required by the minimum set in EU law.
The dynamics taking place in Europe closely reflect the historical experience of
the US. In the original US constitutional settlement, the regulation of voting rights
was exclusively in the hands of the states, which had very different rules—with
some states even extending the franchise to non-US citizens and others depriving of
the vote US citizens from other US states. Over time, however, this situation was
perceived as unworkable since it produced serious discrimination throughout the
US. Hence, through a series of constitutional amendments, legislative enactments,
and judicial rulings the federal government slowly set up a more equal standard for
the regulation of voting rights, inter alia, ensuring that US citizens moving from
one US state to another could enjoy full voting rights both at state and federal
level.12 In light of the US example, Chapter 3 examined the possible effects of a
number of recent decisions by the ECJ on voting rights and the meaning of EU
citizenship but cautioned against viewing this as the solution to an enhancement of
voting rights for second- and third-country nationals.13 At the same time, Chapter 3
underlined how normative arguments about democracy pleaded in favor of additional
reforms of EU primary law to secure greater consistency in non-citizens’ enfranchise-
ment, for example, by empowering EU citizens who reside in another EU member
state to enjoy full voting rights in that state and for non-EU citizens to vote at the
local level in any EU member state.
The case of the right to strike provided another example of the challenge of
ineffectiveness. The right to collective action enjoys diverse degrees of protection
in Europe. Some member states (e.g., Italy, France)14 recognize strike action as
a constitutional right and other countries (e.g., Sweden, Finland)15 also widely
protect collective labor rights. Nevertheless, in yet other member states (e.g.,
Germany, Poland)16 several limitations apply to the exercise of industrial action,
through a requirement of ultima ratio—and in the UK the strike is not even
European Parliament for citizens of the Union residing in a member state of which they are not
nationals); and Directive 94/80/EC, OJ 1994 L 368/38 (exercise of the right to vote and to stand as a
candidate in municipal elections by citizens of the Union residing in a member state of which they are
not nationals).
12 See e.g., US Const. Am. XV (right of US citizens to vote shall not be abridged by the US or by
the states on account of race, color or previous condition of servitude); Dunn v. Blumstein, 405
U.S. 330 (1972) (declaring a state residency requirement to vote to be incompatible with the right to
interstate travel); Voting Rights Act, Pub. L. 89–100 (1965), codified as amended in 42 U.S.C. } 1973
(enforcing federal voting rights in the states).
13 See e.g., Case C-300/04 Eman & Sevinger (Aruba) [2006] ECR I-8055 (holding a Dutch law
which unreasonably disenfranchised for European Parliament elections Dutch citizens residing in the
Dutch overseas territory of Aruba to be incompatible with EU law).
14 See e.g., Art 40, Const. It. (recognizing a constitutional right to strike), Preamble, Const. Fr. (same).
15 See e.g., Art 17, Const. Swed. (right to strike); Art 13, Const. Fin. (right to collective
bargaining).
16 See e.g., Art 17(3) Ustawa z dnia 23 maja 1991 r. o rozwiązywaniu sporów zbiorowych (Dz. U. z
dnia 26 czerwca 1991 r.) (Pl.) (right to strike to be exercised only as a measure of last resort).
Four case studies 253
regarded as a right but simply as a statutory immunity from common law rules.17
In Viking18 and Laval,19 the ECJ recognized the right to strike as an EU funda-
mental right. However, with the aim of securing the smooth functioning of the EU
common market, it also held that strikes can be exercised only when industrial
action is necessary and strictly proportional to the achievement of the desired end.
This produced a great deal of tension in the European system. By setting a standard
that is lower than that existing in many EU states (although equivalent to, or
possibly even higher than, that provided in other EU countries), EU law challenged
the effectiveness of the right to strike standard of the vanguard states. Moreover,
by setting a ceiling of protection, Viking and Laval prevented member states
from going above this maximum whenever industrial action interferes with EU
free movement rules.
A striking analogy with the current European situation derives from an analysis
of US history. In the US, too, the regulation of industrial action originally fell
within the purview of the states, which had very different standards of protection
for labor rights. In the early 20th century, however, action by trade unions
increasingly came under the scrutiny of the federal courts due to its interference
with free market rules. While the US Supreme Court recognized a federal consti-
tutional right to strike, it subjected it to significant limitations by embracing a
laissez-faire doctrine which was instrumental to interstate commerce.20 Neverthe-
less, during the New Deal, the federal government addressed the challenge of
ensuring effective protection of industrial action at the federal level through the
enactment of a significant piece of legislation—the Wagner Act21—which replaced
the weak judge-made standard with a vanguard mechanism for the defense of labor
rights. In light of the US experience, Chapter 4 considered whether the EU might
also enhance its social rights standard, either under the external influence of the
recent Demir & Baykara22 jurisprudence of the ECtHR, or through internal
legislative reform, as also proposed by the Commission in its draft EU regulation
on the protection of the exercise of the right to strike in the internal market.23
17 See Trade Unions and Labour Relations (Consolidation) Act of 1992, 40 Eliz. 2, c. 52 (Eng.)
(strict procedures to be followed in order to be granted statutory immunity from common law rules in
the event of strike action).
18 Case C-438/05 Viking [2007] ECR I-10779.
19 Case C-341/05 Laval [2007] ECR I-11767.
20 See Charles Wolff Packing Co. v. Court of Industrial Relations, 262 U.S. 522 (1923) (stating that
the Due Process Clause of the US Const. recognizes the right to strike); Dorchy v. Kansas, 272 U.S. 306
(1926) (holding that right to strike is not absolute and can be limited to ensure freedom of contract
principles).
21 National Labor Relations Act (Wagner Act), 49 Stat. 452 (1937), codified as amended at 29 U.S.C.
}} 151–69.
22 Demir & Baykara, ECHR [2008] App. No. 34503/97 (GC) (ECHR protects the right to
collective bargaining). See also Enerji v. Turkey, ECHR [2009] App. No. 68959/01 (ECHR protects
the right to strike).
23 COM(2012) 130 final (proposing an EU framework for the protection of the right to strike in
cross-border cases). But see letter from President of the European Commission, Mr. Manuel Barroso to
the President of the European Parliament, Mr. Martin Schulz, Memo 12/661, 12 September 2012
(withdrawing the proposal).
254 The Protection of Fundamental Rights in Europe
Finally, another example of the challenge of inconsistency was provided by the
case of abortion rights. On the very sensitive issue of when a woman can autono-
mously choose to terminate her pregnancy, EU member states have developed
different models of regulation over the past decades. Some member states (notably
the UK and France)24 are endowed with very “liberal” regimes, which leave women
broad freedom to choose. Other countries (e.g., Italy and Germany)25 instead adopt
a more intermediate stance, while a few (Poland and Ireland)26 have an almost
absolute ban on abortion, which allows women to terminate pregnancy only when
necessary to save their lives. In the last two decades, however, a substantive body of
law regulating abortion has emerged at the EU and ECHR level. In Grogan,27 the
ECJ recognized that abortion is a service under the scope of EU law and, in a series
of cases culminating in the recent A., B. & C. v. Ireland,28 the ECtHR stated that the
ECHR requires member states to make access to abortion services effective when-
ever national law recognizes on the books a woman’s right to terminate her
pregnancy. As a result, the developments taking place at the transnational level in
Europe have slowly raised the floor of protection for women’s right in the field of
abortion, placing the most restrictive state legislations under pressure to reform.
Dynamics analogous to those at play in Europe have also characterized the US
federal system. Until the early 1970s, regulation of abortion was entirely in the
hands of the states, which had very diverging laws, with some states allowing
abortion up to the sixth month and others prohibiting abortion tout court. In the
well-known case of Roe v. Wade,29 the US Supreme Court recognized that a
fundamental right to terminate pregnancy up to viability was protected by the
US Constitution and struck down state laws that fell below this federal floor. The
24 See e.g., the Abortion Act 1967, 15 Eliz. 2, c. 87, s 1(1)(a) (as amended) (Eng.) (allowing
termination of pregnancy up to the 24th week if “the continuance of the pregnancy would involve risk,
greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant
woman or any existing children of her family”); Art 1, Loi no. 2001–588 du 4 juillet 2001, J.O.R.F.,
7 juillet 2001, p. 10823 (Fr.) (allowing termination of pregnancy up to the 12th week for any situation
of stress).
25 See e.g., Art 4, Legge 22 maggio 1978, n. 194 (G.U. 22 maggio 1978, n. 140) (It.) (allowing
termination of pregnancy within 90 days after a non-directive counselling process); Art 8, Schwangeren-
und Familienhilfeänderungsgesetz von 21 August 1995, BGBl I 1050 (Ger.) (declaring unlawful
but not punishable an abortion performed within the first 12 weeks of pregnancy after a pro-life
consultation procedure).
26 See Art 4(a), Ustawa z dnia 7 stycznia 1993 r. o planowaniu rodziny, ochronie płodu ludzkiego i
warunkach dopuszczalności przerywania ciąży (Dz.U. 1993 nr 17 poz. 78) (Pl.) (permitting abortion
only if the pregnancy is endangering the mother’s life or health, or up to viability if the fetus is seriously
impaired, or up to the 12th week if the pregnancy resulted from rape); Eighth Am. Const. Ir. codified
as Art 40.3.3 (stating that the state acknowledges the right to life of the unborn and, with due regard to
the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its
laws to defend and vindicate that right).
27 Case C-159/90 Society for the Protection of the Unborn (SPUC) v. Grogan [1991] ECR I-4685.
28 A., B. & C. v. Ireland, ECHR [2010] App. No. 25579/05 (GC). See also Open Door Counselling
v. Ireland, ECHR [1992] App. Nos 14234/88 and 14235/88 (Plenary) (Irish prohibition on circulat-
ing information about abortion providers in other EU countries to be in violation of ECHR); Tysiac v.
Poland, ECHR [2007] App. No. 5410/03 (Poland in violation of Art 8 ECHR for not providing an
effective legal framework within which a woman suffering from a serious health condition could obtain
an abortion as permitted by Polish legislation).
29 Roe v. Wade, 410 U.S. 113 (1973).
Three common patterns 255
definition of a federal standard for the protection of the right to abortion did not
prevent states from ensuring more advanced forms of protection and left states free
to adopt regulations within the parameters set by Roe and its progeny.30 However,
by setting a minimum standard for the protection of abortion, the decision of the
US Supreme Court still remains extremely controversial in the US today and a
number of states continue to challenge the central premise of Roe. In the end,
Chapter 5 emphasized how the experience of the US demonstrates that a plurality
of regulatory frameworks can coexist with a transnational minimum, which ensures
at least a core abortion right for women wanting to terminate their pregnancies, and
suggested that additional protection of the right to abortion in the European multi-
layered system, possibly through a Charter-based review of the ECJ, would reduce
discriminations between women who have the means to opt out of state abortion
bans by travelling abroad and women who do not. However, in light of the US
experience, the chapter also cautioned against the risks of a backlash that any step in
this direction might trigger.
30 See e.g., Planned Parenthood of South-eastern Pennsylvania v. Casey, 505 U.S. 833 (1992)
(upholding Roe’s central premise but allowing state regulation of abortion unless this creates an
“undue burden” for women).
256 The Protection of Fundamental Rights in Europe
take industrial action, and is a laggard in the area of voting rights. And France has
vanguard protection of the right to strike and the right to abortion, but lags behind
in the area of voting rights and due process rights in the field of national security.
The same considerations can be made for each EU member state. As the four case
studies indicate, there is no European state that is permanently lagging behind in
the field of fundamental rights.31 At the same time, no state can claim to be the best
in all fields of human rights.
The existence of significant variations in the human rights standards of the EU
member states warns against overestimating the concept of “common constitu-
tional traditions.”32 In the literature it is often claimed that the development of
human rights in the framework of the EU and the ECHR should be driven by
respect for the “common constitutional traditions” of the member states: indeed,
both the ECJ and the ECtHR are criticized when they do not do so.33 Nevertheless,
although it is certainly true that, in general terms, a common culture of funda-
mental rights has been gradually emerging in Europe,34 this should not conceal the
existence of important differences between the states on specific human rights
issues. As the empirical analysis undertaken in this book makes clear, the frequent
pleas for the ECJ and the ECtHR to take the “common constitutional traditions”
more seriously in their case law appear ingenuous—if not a disingenuous instru-
ment for advocating, under the guise of a common constitutional culture, the
adoption by the ECJ or the ECtHR of one specific state standard of protection. For
instance, in the case of the right to strike, which standard should the ECJ have
followed? The Nordic standard? Or the Italian standard? Or the Polish one? And in
the case of due process, ought the ECJ to follow the example of the British courts?
Or, rather, that of the German ones? Given that constitutional traditions and
human rights standards vary among the states, it is impossible for the transnational
31 An exception to this general rule may nowadays be Hungary. Although I will not develop this
claim further here, it is submitted that it is questionable whether, after the recent constitutional
changes introduced by the new Hungarian nationalist government, Hungary still complies with the
general human rights standards required by Arts 6 and 7 TEU to remain a member of the EU. On the
constitutional reforms of Hungary, see Kriszta Kovacs and Gabor Attila Toth, “Hungary’s Constitu-
tional Transformations” (2011) 7 European Constitutional Law Review 183. See also now European
Parliament resolution of 3 July 2013 on “The situation of fundamental rights: standards and practice in
Hungary,” P7_TA(2013)0315 (condemning Hungary for the introduction of constitutional reforms
which contrast with the founding principles of the EU and demanding that the Hungarian authorities
implement as swiftly as possible a number of recommendations on a broad set of measures).
32 The concept of “common constitutional tradition” was originally framed by the ECJ and later
codified in the TEU. See Case 4/73 Nold [1974] ECR 491, para 13 (ECJ stating that in securing
fundamental rights it “is bound to draw inspiration from constitutional traditions common to the
member states”); Art 6 TEU (fundamental rights as recognized in the ECHR and in the “common
constitutional traditions” are general principles of EU law).
33 See e.g., Eva Kocher, “Fundamental Social Rights in Community Law and in the German
European courts to draw clear inspiration from them: in this context, a home-
grown conception of rights at the EU and the ECHR level is often an inevitable
choice for both the ECJ and the ECtHR.
A second pattern is that of “relativity.” The four case studies reveal that the
impact of transnational law on state law is relative, since the effects of EU and
ECHR law change on the basis of the underlying state law. The implications of the
emergence of a new supranational human rights standard are not the same across
the board but change in light of the pre-existing conditions of state law. In other
words, transnational law may be good, bad, or indifferent for the protection of a
specific fundamental right depending on the circumstances existing in the law of
any given member state. Thus, the emergence of a transnational minimum stand-
ard for the protection of abortion rights may significantly challenge the legal
systems of Ireland and Poland (because both have very low standards of protection
in the field) but leave the regimes of, say, France or the UK entirely unaffected.
Similarly, the definition of a judge-made standard for the protection of strike action
at the EU level may challenge the high-level protection of Spain and Finland,
perhaps enhance the low-level standard of the UK, and yet still be irrelevant for
Germany and Poland (since both have standards based on proportionality analysis
which largely correspond to those set by Viking and Laval ). And the same, of
course, is also true for the other cases which have been considered.
With an awareness of the relative effects that transnational law may have on state
human rights standards, we are able to qualify scholarly calls for a “race to the top”
in the protection of human rights in Europe. In the literature, Leonard Besselink
has argued in favor of the idea that European transnational courts should pursue the
maximum human right standard, since a race to the top is the only way to avoid
conflicts between state and supranational law.35 The idea that courts should pursue
a high-level standard of human rights protection can be shared from a normative
viewpoint.36 Nevertheless, some caution is needed when addressing the issue from
an analytical standpoint. As the model advanced in this book makes clear, a high
standard at the transnational level can generate serious challenges in some states,
and the higher the standard the greater these challenges. So, whilst it is true that, for
example, in the case of the right to strike, had the ECJ embraced the most
protective state standard it would have reduced the challenge of ineffectiveness
produced by Viking and Laval, the same is not true, for instance, in the field of
abortion. Here, were the ECJ—or the ECtHR—to follow the most advanced
standard existing at the state level, it would create for, say, Ireland or Poland a
much more significant challenge than is already the case (plus create challenges for
and Subsidiarity in the European Union” (1998) 35 Common Market Law Review 629, 679
(explaining that the ECJ should embrace a “universalized maximum standard approach” in the
protection of fundamental rights, adopting as the EU law standard the most advanced of those
among the relevant international and national standards).
36 See also Norberto Bobbio, L’età dei diritti (Eindaudi 1990); Klaus Günther, “The Legacies of
Injustice and Fear: A European Approach to Human Rights and their Effects on Political Culture” in
Philip Alston et al (eds), The EU and Human Rights (OUP 1999) 117.
258 The Protection of Fundamental Rights in Europe
many other states which have less-than-vanguard domestic standards). In sum,
bearing in mind the totality of dynamics seen in a multilevel system, it is reasonable
to doubt whether pursuing the maximum standard for the protection of human
rights at the transnational level is always the best way to avoid conflicts between
state and transnational law.37
A third pattern, finally, can be labeled “reformability.” The four case studies
underscored how the European multilevel system presents several shortcomings.
Yet, they also made clear that the European regime is not static, but can be
reformed. However, because the challenges that take place in the European
multilevel architecture are different in nature and scope, the case studies lent
evidence to how different types of solution are necessary to address the challenges
in each specific case. A challenge of ineffectiveness such as that created in the field of
due process rights by the CFI’s ruling in Kadi, could be resolved by the ECJ in the
decision on appeal, which raised the applicable EU due process standard and
therefore assuaged the tensions with the more protective national regimes in force
after 9/11. Yet, the trajectories of transformations in other areas of law demanded
more articulated responses from other institutions. In the field of strike law, it was
suggested that the challenge of ineffectiveness produced by Viking and Laval would
probably require legislative reform at the EU level to enhance the standard of
protection of the right to strike. And in the field of voting rights, it was indicated
that only further Treaty amendments could—if this was an objective on which
sufficient political consensus existed—address the challenge of inconsistency cur-
rently produced by the interaction between EU and national voting rules.
Understanding the dynamism of the European multilevel human rights system
leads to abandoning the idea that there may be an easy solution—for example, a
specific jurisprudential approach that the ECJ should follow—that can be applied
in all circumstances to prevent or resolve possible tensions between national and
supranational law. Although supranational courts are relevant, their case law is just
one way among many through which the challenges of a multilevel human rights
system evolve and can be addressed over time. In other words, a crucial lesson
that can be learnt from the analysis of the four cases studies, is that there is no one-
size-fits-all solution to address the challenges that arise in the European multilevel
architecture from the overlap and interplay between multiple human rights stand-
ards. At the same time, a dynamic understanding of the European multilevel
human rights system underlines how the European system can be reformed and
in some cases must be reformed. For better or for worse, there is nothing rigid in the
current arrangement for the protection of fundamental rights. If this means that the
unpleasant aspects of the systems can be improved for the better, it also implies that
advanced human rights standards may tomorrow be changed for the worse. As
Antonio Cassese, Andrew Clapham, and Joseph H. H. Weiler remind us: “human
37 See Koen Lenaerts, “Interlocking Legal Orders in the European Union and Comparative Law”
(2003) 52 International & Comparative Law Quarterly 873, 906 (explaining how the ECJ often
arrives at a “solution in the ‘middle-line’ ” which can be acceptable in many different legal systems).
Two stories 259
4. Two stories
The four case studies analyzed in the previous chapters offered the opportunity to
tell the stories of two constitutional regimes. This book examined the European
multilevel human rights architecture in comparative perspective, using the case of
the US federal system as a mirror to improve the understanding of the constitu-
tional dynamics at play in Europe.39 For the structural and normative reasons
discussed in Chapter 1, the US appears to be the most similar—or, perhaps more
appropriately, the least different—comparator for the European multilevel human
rights regime. First, both the European multilevel architecture and the US federal
system feature a plurality of constitutional sources enshrining fundamental rights.
Secondly, both are characterized by a plurality of constitutional actors—notably
courts—endowed with the power to protect them. And, thirdly, both in Europe
and the US a plurality of constitutional views on human rights has historically
emerged and is reflected in an endemic normative tension between uniformity and
diversity.
The analysis of the protection of fundamental rights in the European architec-
ture in comparative perspective with the US shed light on the important develop-
ments that have recently occurred—and are still ongoing—in the European system.
In the areas of national security, voting rights, the right to strike, and abortion, the
38 Antonio Cassese et al, “1992—What Are Our Rights? Agenda for a Human Rights Action Plan”
in Antonio Cassese et al (eds), European Union—The Human Rights Challenge. Vol. II: Human Rights
and the European Community: Methods of Protection (Nomos 1991) 1, 75.
39 See Vicki Jackson, “Narrative of Federalism: Of Continuities and Comparative Constitutional
40 Koen Lenaerts, “Constitutionalism and the Many Faces of Federalism,” (1990) 38 American
Tarr (eds), Federalism and Rights (Rowman & Littlefield 1996) 57.
42 See Danny Nicol, “Original Intent and the European Convention on Human Rights” [2005]
states in the US and the EU, see Robert Schütze, “European Fundamental Rights and the Member
States: From ‘Selective’ to ‘Total’ Incorporation?” (2012) 14 Cambridge Yearbook of European Legal
Studies 337.
Two stories 261
Civil Rights Era and still today underpins political battles about reproductive rights
in the US. Moreover, the incremental increase in the protection of due process
rights in counter-terrorism was part of the responses to the (wrongly labeled)
“global war on terror” and the resilience of constitutional principles against the
excesses of post-9/11 emergency policies. In each of these constitutional moments,
the people of the US redefined the shape of the polity and the balance between state
and federal power.44
The experience of the US in the case studies considered in this book underlines a
progressive trend of harmonization and centralization in the field of fundamental
rights, which does not yet find a counterpart in the practice of the European
multilevel architecture. While the US system for the protection of fundamental
rights still remains pluralist today, there is no doubt that the US has a much more
integrated human rights regime.45 “Integration means here, most centrally, the
development of equal, or at least equal minimum, standards of protection for
human rights in the different constituent parts of the federation or union.”46
From the right to abortion to the right to strike, the previous chapters have
emphasized how federal law has increasingly been setting a standard that—albeit
leaving states free to rule above the floor, or below the ceiling (or outside the scope)
of federal law—has significantly reduced the diversity among the states. In Europe,
this moment has yet to come and although, as several of the chapters have pointed
out, greater integration is often an advisable route to address the challenges at play,
important political questions have to be addressed before taking that road.47
Nevertheless, another important insight deriving from the comparison between
the two systems is that the process of harmonization and centralization is neither
linear nor inevitable. Inasmuch as the US has experienced a progressive shift toward
a more uniform human rights arrangement, continuous pressures have existed—
and still exist—to return the system to a hard pluralist setting, in which the federal
government plays only a limited role and marked variation between the states is the
rule.48 The New Deal certainly federalized the standards for the protection of the
right to strike in interstate industries. Yet, ever since, political efforts have worked
to weaken the mechanism of centralized enforcement set up in the National Labor
Relations Act.49 Similarly, in the area of voting, while the two Reconstructions
placed important limits on the ability of the states to regulate the ballot box, recent
US Supreme Court case law has contentiously struck down the centerpiece of the
44 See Bruce Ackerman, “The Living Constitution” (2007) 120 Harvard Law Review 1738.
45 See Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (Yale UP 2000).
46 Jochen Frowein, Stephen Schulhofer, and Martin Shapiro, “The Protection of Fundamental
Rights as a Vehicle of Integration” in Mauro Cappelletti et al (eds), Integration through Law: Europe and
the American Federal Experience. Vol. 1, Book 3 (de Gruyter 1986) 231, 244.
47 For the locus classicus on the notion of integration in the EU, see Pierre Pescatore, Le droit de
ations of States’ Extraterritorial Powers” (2007) 51 St. Louis University Law Journal 713.
49 See Cass Sunstein, The Second Bill of Rights. FDR’s Unfinished Revolution and Why We Need It
5. One model
The previous chapters served first and foremost to validate the analytical model
hypothesized in Chapter 1. There, I advanced a model to rationalize the dynamics
at play in the European multilevel human rights architecture. The model synthe-
sized the complex (synchronic) interactions triggered by the overlap and interplay
between multiple human rights standards and emphasized how each arrangement
was also subject to the (diachronic) process of transformation brought about by
50 Shelby County v. Holder, 570 U.S. __ (2013) at 10 (of the slip opinion).
51 See Robert Post and Reva Sigel, “Roe Rage: Democratic Constitutionalism and Backlash” (2007)
Harvard Civil Rights—Civil Liberties Law Review 373.
52 See also Armin von Bogdandy et al, “Reverse Solange—Protecting the Essence of Fundamental
Rights Against EU Member States” (2012) 49 Common Market Law Review 489, 496.
53 See Bruce Ackerman, “The Rise of World Constitutionalism” (1997) 83 Virginia Law Review
action between the EU Charter of Fundamental Rights, the ECHR and National Constitutions,”
general report of the FIDE Congress, Tallinn, 30–31 May 2012, 42 ff. See also Case C-380/05 Centro
Europa 7 [2008] ECR I-349, Opinion of AG Maduro, para 19 (defining the protection of a “common
code” of fundamental rights as an “existential requirement for the EU legal order”).
One model 263
+
C
challenge of ineffectiveness
challenge of inconsistency
A
–
right (x) = degree of protection
judicial and institutional change. The four case studies enabled to test the validity of
the model and to verify its systematic applicability in multiple examples of funda-
mental rights. It is therefore possible to reframe the initial hypothesis as a thesis and
argue that the implications of a complex multi-layered architecture can be recon-
ceptualized through an analytical model of challenges and transformations.
Figure 6.1 provides a snapshot of these dynamics.
A challenge of inconsistency emerges in the case of interaction between different
state laws and transnational law, when the latter operates as a floor of protection. By
setting up a minimum standard for the protection of a specific human right,
transnational law challenges the less protective standards existing in some laggard
states and pressures them to enhance their levels of protection at least up to the
degree provided by transnational law. At the same time, by drawing only a
minimum standard of protection, transnational law leaves free other vanguard
states to go above the transnational floor by providing more advanced protection
to the right at hand.
A challenge of ineffectiveness emerges instead in the case of interaction between
different state laws and transnational law, when the latter operates as a ceiling of
protection. By setting a maximum standard for the protection of a specific human
right, transnational law challenges the effectiveness of the more protective standards
existing in the vanguard states, pressuring them toward the bottom level of
protection provided by transnational law. At the same time, as long as it defines a
maximum standard of protection, transnational law leaves unaffected other pre-
existing state standards that do not exceed the transnational ceiling.
The transformations—in the shape of either judicial action or institutional
reform, through constitutional amendments, legislative regulation, and executive
decrees—are instead developments that occur over time and influence the dynam-
ics of the multi-layered human rights architecture by affecting human rights
standards at the state or transnational level. The combined effect of these trans-
formations may be, effectively or potentially, to reduce over time the challenges of
264 The Protection of Fundamental Rights in Europe
ineffectiveness and inconsistency, hence reflecting the open nature of the multi-
layered regime and its continuous subjection to internal processes of adjustment
and redefinition.
The four case studies examined in this book allowed to test the model and to
prove its validity as a general framework of the dynamics at play in the European
multilevel human rights architecture, as well as in the US federal system. Regardless
of the specificities of the case studies considered, each reflecting a different gener-
ation of rights, in every example it was possible to appreciate how challenges (of
either ineffectiveness or inconsistency) and transformations emerge as a result of the
interaction between multiple human rights standards. Due to the broad empirical
testing, the model advanced in Chapter 1 emerged as a convincing analytical
framework to explain the dynamics of a multi-layered regime and—for that
matter—also to predict the effects that will arise when new areas of human rights
law are subject to multiple (state and supranational) standards. While the book
applied the model with the right to due process, to vote, to strike, and to abortion,
it advanced a comprehensive framework that can be employed to examine any other
area of European human rights law.
At the same time, the case studies shed light on an important feature of the
model: namely, its value-neutrality. As emphasized in Chapter 1, rights do not exist
in a vacuum, but rather in a web of interactions: therefore giving more protection to
right x may imply giving less protection to another competing right y (or public
interest y). Figure 6.1 suggests isolating right x and testing the dynamics that
stem from the interaction between multiple overlapping standards. Depending
on which right x is considered to be the benchmark, states will be classified in
the model on the vanguard–laggard axis, and the impact of transnational law will
be defined as either a challenge of ineffectiveness or inconsistency. However, the
choice of benchmark does not influence the validity of the model. The model, in
fact, functions in exactly the same terms if we choose as the standard, rather than
right x, its competing right y. In this case, the dynamics are symmetric and the
challenge produced by the emergence of a transnational standard is the opposite to
that produced when the reference standard is right x.
To clarify with an example: in Chapter 5 the dynamics produced in the field of
abortion were examined using the benchmark of the “right of the woman to
choose”; under this benchmark member states were classified along a vanguard–
laggard continuum and a challenge of inconsistency was identified where the
emergence of a “right to choose” standard at the transnational level challenged
(increased) the lower standard of protection of women’s rights existing in several
member states. However, the analysis could equally have been conducted using as a
benchmark the “right to life of the unborn.” From this perspective, states would be
reclassified on the vanguard–laggard axis (depending on how protective they are of
this right) and the jurisprudence of transnational courts could be redefined as a
challenge of ineffectiveness where the higher standards for the protection of the
right to life of the unborn in some member states are challenged (reduced) by the
emergence of a less protective standard at the transnational level. What from one
From practice to theory 265
56 The most explicit reflection of this position may be the debate in the UK following Hirst v.
United Kingdom, ECHR [2005] App. No. 74025/01 (GC) (ECtHR ruling the UK to be in violation of
Art 3 of the 1st Additional Protocol to the ECHR for depriving prisoners of voting rights). See the
Draft Declaration presented by the UK Government for the High Level Conference on the Future of
the ECtHR, Brighton, 23 February 2012, } 17 (stating that it is the responsibility of democratically-
elected national parliaments to decide how to implement the ECHR and for independent and
impartial national courts and tribunals to apply it). This text, however, did not find its way into the
Final Declaration of the High Level Conference, 19–20 April 2012. See also Diletta Tega, I diritti in
crisi (Giuffrè 2012) ch 3.
From practice to theory 267
In this vein, the book has largely endorsed a pluralist constitutional vision, which
praised the existence of multiple sites of human rights protection and adjudication
as a valuable state of affairs de jure condendo. However, the analytical framework
developed here and its testing in four case studies have also called into question
some of the normative assumptions of the theory of constitutional pluralism. In
particular, pluralist approaches to the European multilevel architecture for the
protection of fundamental rights emphasize the happy coexistence of a plurality
of human rights norms and institutions. The previous chapters, however, under-
scored the challenges and shortcomings that may emerge from such a regime. In
other words, the book has set aside the idyllic vision which regarded the European
multilevel system as a harmonious regime to be idealized as it is, emphasizing
instead the dimension of conflict and contradiction: from the right to due process
in national security to the right to strike, it was proved that there are situations
where the interaction between multiple human rights standards may be bad rather
than good, and demand reform rather than preservation.
At the same time, this research has also challenged those brands of constitutional
pluralism that, while taking stock of the conflicts that may emerge in the multi-
layered architecture, have advanced as a normative solution to this problem a theory
of judicial dialogue, possibly based on a comparison of the common constitutional
traditions of the EU member states. The empirical analysis of the protection of
fundamental rights in the four case studies explained that dialogue is necessary, but
is often not sufficient. As was previously emphasized, states vary significantly in the
degree of protection they accord to any given right, often undermining the idea that
it is possible to identify a truly common constitutional tradition in Europe.
Moreover, examples such as voting rights and the right to strike revealed that the
challenges produced by the overlap between different standards are not always
amenable to a simple judicial solution, thus suggesting that reforms of the multi-
layered architecture ought also to take place outside the courts, through political
channels. Finally, the case studies have outlined how, beyond dialogue, there must
at some point be a decision-moment, at which the challenges are finally addressed.
In the end, a bottom-up approach to the study of fundamental rights suggests
that we need to move beyond existing theories on the protection of fundamental
rights in Europe. Sovereigntism is right in criticizing from a normative point of
view the negative complications that may emerge from the overlap and interplay
between multiple human rights standards. But it is wrong in prescribing that the
solution should always be found in making the sovereign states the ultimate
decision-makers in the field of human rights. At the same time, pluralism is right
in valuing, from a normative viewpoint, the existence of multiple sites of protection
of human rights as an enhancement of individual liberty. However, it is wrong in
either considering this regime as a problem-free arrangement, or—when the
existence of conflicts is recognized—in suggesting that judicial dialogue based on
common constitutional traditions will cure everything. All in all, sovereigntism is
skewed by a vertical vision, which emphasizes hierarchy, government, and force,
while pluralism is tilted toward a horizontal vision, which focuses on heterarchy,
governance, and dialogue. Both these features are needed, but neither is sufficient
268 The Protection of Fundamental Rights in Europe
on its own. We therefore need a new theoretical understanding of the European
multilevel human rights architecture which, taking off from the empirical evidence
collected and systematized in the previous analysis, is able to combine the strengths
of the previous approaches and yet avoid the weaknesses that are inherent in their
normative visions.
What can this new theory be? The purpose of this book is not to advance a fully-
fledged theory of the protection of fundamental rights in the European multi-
layered regime. My aim was to explain what constitutional dynamics stem from a
multi-layered regime. Others will certainly engage with the endeavor of theory-
building. However, any theory on the protection of fundamental rights in Europe
should be empirically-based, and address at least the following dilemmas that the
analysis of the constitutional dynamics at play in the European multilevel system
has repeatedly highlighted.
The first dilemma is that of identity. A theory of the protection of fundamental
rights in the European multilevel human rights system should reflect the fact that
the identity—or better, the identities—of human rights protection across Europe
ought as much as possible to be respected and preserved. In each of the case studies
considered in the previous chapters, it emerged that member states often have very
different understandings of the scope of protection of a given right, because of their
particular historical and cultural experiences—in most cases entrenched in their
constitutional texts or practices. Most prominently in the field of abortion, it was
underlined how states are polarized, with some nations strongly opposing a
woman’s right to choose in the name of the protection of the right to life of the
unborn. Any theory that purports to prescribe conduct in the fundamental rights
domain must take stock of the importance that respect for identity ought to have in
the European multilevel system.
The second dilemma is that of equality (or non-discrimination). A theory of the
protection of fundamental rights in the European multilevel human rights system
should take into account the fact that human rights ought to be secured as much as
possible to all individuals living in the same territory without discrimination. In the
examples we previously discussed, it emerged that in a plurality of situations the law
has turned its back on the basic normative principle that similar situations ought to
be treated alike. Strikingly, for instance, in the field of voting rights, it was
emphasized how the same mobile second- or third-country-national may be subject
to totally different bundles of electoral rights depending on the state to which
he or she goes, and the state from which he or she comes from. Any theory of
fundamental rights protection in the European multilevel system must be able to
deal with this situation, and provide an adequate answer to the demand for equal
protection of the laws on which any legitimate legal system is founded.
The third dilemma is that of supremacy. A theory of the protection of funda-
mental rights in the European multilevel human rights system should take into
account the fact that conflicts between human rights do occur and ought to be
resolved. In this sense, dialogue is necessary but is not sufficient. At the end of
the process of mutual learning and accommodation produced by judicial inter-
action, a mechanism for the authoritative resolution of these conflicts must be
Conclusion: a “neo-federal” vision 269
alism (CUP 2012) and Daniel Elazar, Constitutionalizing Globalization: The Postmodern Revival of
Confederal Arrangements (Rowman & Littlefield 1998).
60 See Robert Schütze, From Dual to Cooperative Federalism. The Changing Structure of European
Spinelli, Il progetto europeo (Il Mulino 1985) 151. For discussion, see Andrew Glencross, “Altiero
Spinelli and the Idea of the US Constitution as a Model for Europe; The Promises and Pitfalls of an
Analogy” (2009) 47 Journal of Common Market Studies 287 (arguing that the “statist” conception of
the European “classical federalists” was fostered by a misunderstanding of the US federal tradition).
270 The Protection of Fundamental Rights in Europe
federal state.63 The statist ambiguities imbued in the European tradition of feder-
alism can explain the skepticism (or fear) with which the concept has been rejected
at the analytical and normative level in Europe.64 European legal and political
discourse has traditionally been alarmed by the use of the “F” word. The word
“federalism” has been carefully avoided in the language of EU primary law and,
with some remarkable exceptions, scholars addressing the EU constitutional struc-
ture have only reluctantly referred to it in their research.65
However, one needs to be aware that the European vision of federalism is not the
only one. In the constitutional experiences of other systems—notably, in the US
and Swiss tradition—federalism has historically represented something quite dif-
ferent, originally being conceived as a theory of governance for a union of states.66 In
the view of the American founders in particular,67 federalism was conceived both as
an institutional tool and as a constitutional theory for the creation of a govern-
mental structure lying somewhere in between a purely national and international
phenomenon.68 Certainly, through a number of constitutional moments, the US
developed over time into a state-like structure.69 But despite the significant
centralizing trends, the federal vision has survived in the US for the last two
centuries.70 In this alternative vision, therefore, federalism has been regarded as a
normative theory and as an institutional device that rejects a hierarchical and
monist constitutional arrangement and divides and distributes sovereignty between
the competing levels of authority and institutions within it.71
In the area of fundamental rights protection, therefore, this vision of federalism
provided an appropriate theoretical framework within which to make sense of the
US polycentric and multi-layered human rights arrangement.72 In its US variant,
federalism has been taken to embody the constitutional values of freedom,
63 For a classical view, see Federico Mancini, “Europe: The Case for Statehood” (1998) 4 European
Law Journal 29. For a criticism of this view, see Joseph H. H. Weiler, “Europe: The Case Against the
Case for Statehood” (1998) 4 European Law Journal 43.
64 See Tim Koopmans, “Federalism: The Wrong Debate” (1992) 29 Common Market Law
Review 1047.
65 This is especially true of European academics. Conversely, American scholars (for reasons that
will be explained below), have traditionally been comfortable in resorting to federal ideas to make sense
of the European constitutional system. See e.g., Daniel Elazar, “The United States and the European
Union: Models for Their Epochs” in Kalypso Nicolaïdis and Robert Howse (eds), The Federal Vision:
Legitimacy and Levels of Governance in the United States and the European Union (OUP 2001) 31.
66 See Murray Forsyth, Unions of States: The Theory and Practice of Confederation (Leicester
UP 1981).
67 See, of course, James Madison, Alexander Hamilton, and John Jay, The Federalist Papers ([1788],
Penguin 1987).
68 Leslie Friedman Goldstein, Constituting Federal Sovereignty. The European Union in Comparative
Comparative Perspective” in Neil Walker (ed), Sovereignty in Transition (Hart Publishing 2003) 423.
See also U.S. Term Limits, Inc. v. Thorton, 514 U.S. 779, 838 (1995) (Kennedy J. concurring, defining
US federalism as the attempt “to split the atom of sovereignty”).
72 Akhil Reed Amar, “Of Sovereignty and Federalism” (1987) 96 Yale Law Journal 1425.
Conclusion: a “neo-federal” vision 271
73 James Gibson, “Freedom, Pluralism and Federalism: An Enigmatic Trio?” in Sarah Baumgartner
Thurow (ed), E Pluribus Unum. Vol. 2: Constitutional Principles and the Institutions of Government
(University Press of America 1988) 222. See also, from a social science perspective, Vincent Ostrom,
The Meaning of American Federalism: Constituting a Self-Governing Society (ICS Press 1991).
74 Daniel Elazar, “Federalism, Diversity and Rights” in Ellis Katz and Alan Tarr (eds), Federalism
i.e. federalism has been combined with both a politically “conservative” and politically “liberal” view of
the protection of fundamental rights. See Ernest Young, “Welcome to the Dark Side: Liberals
Rediscover Federalism in the Wake of the War on Terror” (2004) 69 Brooklyn Law Review 1277
and Ernest Young, “The Conservative Case for Federalism” (2006) 74 George Washington Law
Review 874.
77 See Margaret McGuinness, “Federalism and Horizontality in International Human Rights”
(2008) Missouri Law Review 1265, 1277 (emphasizing the importance of vertical top-down enforce-
ment of certain human rights claims at certain points in US constitutional history) and Robert Schütze,
“Federalism as Constitutional Pluralism. ‘Letter from America’ ” in Matej Avbelj and Jan Komarek
(eds), Constitutional Pluralism in the European Union and Beyond (Hart Publishing 2012) 185
(pointing out that the theory of constitutional pluralism with its emphasis on horizontality shares
the normative claims advanced by the theory of federalism in the US).
Conclusion
This book analyzed the constitutional dynamics taking place in European multi-
level human rights architecture. Its purpose was to examine the implications that
emerge from the overlap and interplay between state and transnational laws dealing
with the protection of fundamental rights. In the last two decades, the protection of
fundamental rights has blossomed in Europe. Rights have gained in importance
and status at the state level, in the legal order of the EU and within the framework
of the ECHR. At the same time, institutions for the protection of rights—and
notably courts adjudicating rights claims—have seen their role strengthened every-
where in Europe. Yet, the consequences of these profound constitutional trans-
formations have remained largely unexplored since the prevailing scholarly
narratives have offered only a partial assessment of the new European legal reality.
To examine the dynamics at play in the European architecture, this book
advanced a comparison with the federal arrangement for the protection of rights
of the US. As explained, the US federal system presents numerous empirical and
normative features which make it a particularly suitable example for comparison
with the European multilevel architecture. The US is structurally characterized by a
plurality of bills of rights and by a multiplicity of courts adjudicating them. In
addition, the US has historically experienced an enduring normative tension
between the need to ensure uniformity and the desire to accommodate diversity
in the field of human rights. Drawing essential insights from this comparative
exercise, the book developed an analytical model which explains in a comprehen-
sive and systematic way the implications of a multilevel human rights regime.
In particular, I argued that two set of dynamics take place in the European
architecture. The synchronic interplay between different state and transnational
human rights standards generates several challenges. A challenge of ineffectiveness
was identified in those cases where transnational law operates as a ceiling for the
protection of a given human right, interacting with the more advanced standards
existing in several vanguard member states; while a challenge of inconsistency was
identified in those cases where transnational law operates as a floor for the protec-
tion of a given human right, interacting with the less advanced standards existing in
several laggard member states. The European multilevel architecture, however, is
also subject to ongoing transformations. Judicial and institutional changes reshape
in a diachronic dimension the multilevel system, while further reforms can be
envisaged de jure condendo to address the remaining challenges in the protection of
fundamental rights in Europe.
To provide empirical backing to the analytical framework developed, the book
took into account four case studies, dealing with the right to due process for
suspected terrorists, the right to vote for non-citizens, the right to strike, and the
right to abortion. The case studies covered the four “generations” of rights
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Index