JJUA55053U The EU and competing legal orders

INTRODUCTION:
The main objective of the integrated course is to examine the EU legal order comprehensively, meaning that the students will learn first, to understand the EU legal order and EU substantive law in relation to
1) the member states as well as
2) the international legal order and international law, and second, they will get an insight into how it is being made by the actors, engaging in constitutional dialogues between the three legal orders.
These two elements together form the “backbone” of the course, and will inform all sessions and all topics covered throughout. The insights gained from these two perspectives will give the students a broader vision of the legal intricacies and challenges which emerge in the global world of inter-locking legal orders without ultimate authority to resolve legal disputes, and enable them to move between national jurisdictions as well as between regional and international jurisdictions as future practitioners or academics.

The subjects covered will be reasonably diverse within the field of EU law, so as to attain the two central objectives of this course.. The topics covered are based on the distinct challenges which arise within the context of our two central, which the EU legal order is facing on the national, regional (meaning European), and international plane, which need to be understood separately as well as the parts of a coherent whole:
• European constitutional order: how do the structure of the EU, the processes of law-making and policy making, and the effects of these processes interact and overlap? The topics will include the law of the institutions, legislative procedures, legal procedures, and principles of direct effect, supremacy, member state liability for breaches of EU law, EU citizenship, and fundamental rights. This will provide the students with a core understanding of what the EU is and how it functions and of the foundations of its legal order.
• In order to make the link to law-in-practice, which is usually a problem for the students, who only engage in conceptual analysis in the classroom; the course will cover selected aspects of substantive law: international trade, EU energy law, free movement of persons and citizenship, security and defense, migration.
• On that basis, we will move on to increasingly complex questions of constitutional law and discuss the theoretical and practical problems of the pluralism of legal sources, with no ultimate authority to resolve disputes, as well as the old Kompetenz-Kompetenz question. This will give the students an overview of recent theoretical debate about the nature of the EU legal order, which is usually not taught at the MA level, but is absolutely necessary to grasp how the European legal order is entrenched in national and international legal orders and what kind of tensions (not only legal, but also cultural and political) this leads to.
• We will strongly emphasize the need to sharpen students’ skills as lawyers by highlighting: legal (judicial) reasoning, justificatory reasons, explanatory reasons and motivating reasons in judicial decisions (legal analysis v. motive analysis, legal interpretation v. policy making and the democratic legitimacy of lawmaking by international courts).
• With regard to the previous point, the course will critically address the role of the Court of Justice of the EU, its jurisprudence and its legitimacy. Legitimacy is often invoked in legal and political circles, but rarely an object of systematic and theoretically sound inquiry into law and policy making. We aim to provide students with tools, which will enable them to adopt an informed view of the choices of the Court and substantiate their criticism of the latter (we will discuss the problems of formalism in the Court’s reasoning, the difference between formal and substantive reasoning, the values behind different methods of interpretation, how interpretation makes law and why (and when) is this controversial in a democratic society, as well different models of justification, the role of coherence and consistency in judicial decisions and the need to coherence in academic criticism etc.)
• The course will also question the narrative of the constitutionalization of the EU legal order, and discuss the impact of transnational legal elites in the making and the shaping of key concepts as well as of the key narrative (The transformation of Europe and the transformation of the legal profession), again, a pertinent topic of self-reflection of the legal profession that is left out of most EU law courses.
• The “behind the scene” view of why the EU struggles for the recognition on the international plane, and has difficulties in assenting itself as a powerful international actor, going beyond the competences of the EU vis-à-vis the member states, and third countries/international organizations.