bluuebunny/crossref_metadata_2025 huggingface dataset:
Prevalence of Dental Fluorosis amongst patients attending the tertiary care hospital, Peshawar, Pakistan
Authors: Khan Farzeen , Sabiha Zia ul Ain , Ajmal Amina , Shawana Miss , Khurshid Abdul Ahad , Ahmed Junaid
Published: March 2022

Pakistan is a developing country where peoples drink any available water. In Pakistan water sources are limited and drinking water contains high level of fluoride, which causes both dental and skeletal fluorosis. Objectives: Objectives of the current study was to evaluate the incidence of dental fluorosis among patients who visits the tertiary care hospital, Peshawar and to assess the level and distribution of fluorosis. Methods: The study was carried out at Dental unit of Khyber Teaching Hospital Peshawar, from January 2021 to December 2021. All the samples were collected after the research was approved by the ethical committee. A written informed consent was taken from all the participants prior to collecting the data. Moreover, Dean’s Fluorosis Index was used to rank the extent of Dental Fluorosis. For statistical analysis SPSS, version 26 was used. Results: Among 2433 participants, females 1451/2433(59.6%) were more as compared    to male (n=982/2433 (39.3%) while the dental fluorosis were more prevalent in males 414/982 (42.1%) as compared to females 568/1451 (39.1%) The fluorosis was more prevalent in age group 11-20 year 874 (89%) while only two individuals were found with dental fluorosis in  age groups more than 40 years. In addition, the participants used tap water were more affected with dental fluorosis 568 (56.9%), whilst incidence of fluorosis was less in individuals drinking treated as well as other sources water 2 (1.2%). Furthermore, 620 (63%) individuals were found with local fluorosis, while 362 (37%) were found with generalize fluorosis. According to Dean’s Fluorosis Index 365 (15%) of individuals were found with very mild fluorosis while only 37 (1.5%) individuals were affected by severe type of fluorosis. Conclusion: In this study, the fluorosis incidence in Pakistan were prevalent and need continual monitoring, and sources contributing to total fluoride intake in Pakistan need further investigation. Furthermore, for fluorosis prevention education and community awareness are necessary, and prompt conciliation to relegate the effects on dental health.
Distal venous arterialisation for ‘no-option’ chronic limb-threatening ischaemia
Authors: Beck KJ , Howard DPJ
Published: March 2022

Chronic limb-threatening ischaemia (CLTI), defined as significant peripheral arterial disease causing ischaemic rest pain and/or tissue loss, is associated with a high amputation and mortality rate. Avoiding amputation in CLTI is crucial and restoration of blood flow is usually achieved using endovascular or open surgical revascularisation. However, significant occlusion of the distal limb vasculature may result in ‘no option’ CLTI, where there are no available target vessels for angioplasty or bypass. An emerging procedure to treat patients with ‘no option’ CLTI is distal venous arterialisation (DVA). This involves using the distal venous system as a conduit for arterial blood to revascularise the lower limb. This report describes a patient presenting with ‘no option’ CLTI who underwent limb-saving treatment with DVA. The case highlights how worsening clinical outcomes may occur despite technical success of DVA. It also emphasises complications of the procedure. Finally, the evidence base surrounding DVA for CLTI is examined.
The Green Paper on Damages Actions for Breach Of The EC Antitrust Rules and Beyond: Reflections on the Utility and Feasibility of Stimulating Private Enforcement Through Legislative Action
Authors: Eilmansberger Thomas
Published: March 2022

The article seeks to demonstrate that legislative action to facilitate the enforcement of damages claims in European competition law is both possible and desirable. A stimulation of stand alone actions concerning hard-core infringements is however considered unrealistic; only follow-on actions, which have a limited enforcement value, can be encouraged by legislative measures. In contrast, damages actions concerning grey-area offences can and should be facilitated. These infringements tend to be exclusionary in nature so that the private interest in pursuing a case will often outweigh the public interest. The focus on damages actions is however too narrow. Relevant EC legislation should also establish and define the core elements of injunctive relief. For both damages and injunctive relief, the main hurdle is the legal (and economic) complexity of these cases and the resultant difficulty in proving the illegality of the conduct. This is where legislative action could be useful. While this complexity cannot be changed as such, it is possible to somewhat reduce the risk connected with unpredictability. Legislative action should therefore also deal with the other elements of these remedies, in particular causation, contributory negligence, protective scope and the issue of passing on and indirect purchasers’ claims.
A light in the darkness: Recent developments in the ECJ’s direct tax jurisprudence
Authors: Kingston Suzanne
Published: March 2022

This article will examine the Court’s case law from 2001 to 2007 in one of its most challenging and, due to national sensitivities about tax sovereignty, controversial areas of competence at present: its application of the Treaty free movement rules to national direct tax provisions. First, the article will focus on the Court’s evolving approach to the question of which national tax rules amount to a prima facie breach of the free movement rules – in particular, the Court’s shift from defining breach purely in terms of “restriction” to a discrimination-based approach. Second, it will consider developments in the Court’s attitude to justifications for prima facie breaches of Treaty free movement rules, including the nebulous concept of justification on grounds of “fiscal cohesion”. Finally, it will look at the application of the EU citizenship rules to national tax rules, and the Court’s stance on remedies where national tax rules contravene Community law. Its conclusion will be that, after a substantial period of uncertainty, the Court seems to be moving away from a pure restriction-based approach, towards a more predictable and logical system distinguishing between those restrictions of free movement which should be prohibited by the free movement rules (restrictions resulting from the discriminatory rules of one tax jurisdiction) and those restrictions which, as inevitable consequences of national tax sovereignty, should not fall within the scope of the free movement provisions at all (restrictions resulting from the interaction between two different tax jurisdictions).
Protectionist threats against cross–border mergers:Unexplored avenues to strengthen the effectiveness of Article 21 ECMR
Authors: Gerard Damien
Published: March 2022

In recent months, the European Commission has faced a surge in protectionist moves by Member States designed to protect national companies from foreign acquirers. To resist those attempts, it has relied on a relatively peculiar yet theoretically powerful tool: Article 21 of the EC Merger Regulation (ECMR). That provision allows the Commission to vet State measures against the “general principles and other provisions of Community law” and to act swiftly against Member States, in a way compatible with the requirements of business life. This article undertakes a systematic analysis of the handful cases in which the Commission has formally resorted to Article 21 ECMR to date, including the Endesa saga, and shares insights in the Commission’s conduct of its inquiries into State measures interfering with concentrations of a Community dimension. It attempts to summarize the law on Article 21 ECMR as its stands today. Eventually, it concludes that the Commission’s enforcement record has been rather mixed so far. Still, it considers that Article 21 ECMR carries unexploited potential, which can be derived from the procedural features built into that provision and from the observed evolution in the Commission’s view as to the type of State measures falling within its scope. In turn, the article presents in details those avenues likely to strengthen the effectiveness of Article 21 ECMR, notably by means of various analogies with the law on State aids and a combined application to a hypothetical takeover case of Article 21 ECMR and the principle of effectiveness.
Access to documents and data protection in the European Union: On the public nature of personal data
Authors: Kranenborg Herke
Published: March 2022

If one of the EU Institutions is asked by a citizen to disclose a document which contains personal data, a difficult and sensitive situation can arise. The person asking for the information invokes his or her right of access to documents, while the Institution is obliged to respect the right to data protection of the person to whom the information in the document relates. Two fundamental rights can lead to opposing claims. How this collision can be solved is the focus of this article. It appears that the current legislation in which the right to public access to documents (Regulation 1049/2001) and the right to data protection (Regulation 45/2001) are elaborated does not sufficiently address this possible collision. Although in November 2007 the Court of First Instance has clarified the legal framework to a certain extent, in the judgment in the so-called Bavarian Lager case, questions still remain. It is therefore argued that the legislation should be changed in this respect. Inspired by examples from national legislation and case law from the European Court of Justice as well as the European Court of Human Rights a concrete proposal is developed, which is timely since the Regulation on access to documents is currently under revision.
Industrial actions and EU economic freedoms: The autonomous collective bargaining model curtailed by the European Court of Justice
Authors: Malmberg Jonas , Sigeman Tore
Published: March 2022

Is the right to take collective action as enshrined in a Member State?s national law restricted in any way by the rules on right of establishment under Article 43 EC or on freedom to provide services under Article 49 EC and the Posted Workers Directive? These were the main questions referred to the ECJ in the Viking and Laval cases decided by the Court in December 2007. In this article, the authors take stock of the EC rules brought to the fore in the cases. According to the judgments, the trade unions concerned are caught by the direct horizontal effect of the Treaty articles. Collective actions, with cross–border implications, may constitute a restriction on the economic freedoms under the Treaty. Such a restriction may, however, be justified under specific conditions. Even if the Court recognized the right to take collective actions as a fundamental right in Community law, the exercise of that right must be reconciled with the requirements of other rights protected under the Treaty. The judgments imply that the right to different kinds of collective actions depends on the aim of the action in question. In Laval, the secondary actions taken did not aim to directly regulate the employment conditions of the attacking union’s own members but rather at establishing a uniform level of wages and employment conditions applied by all undertakings in the branch, and the outcome was not confirmed in formal legislation, according to the Swedish social model. Since this demand went beyond protecting the “hard nucleus” of the Posted Workers Directive, the restriction caused by the collective actions was not justified.
Waiter! There’s a beetle in my soup. Yes sir, that’s E120: Disparities between actual individual behaviour and regulating food labelling for the average consumer in EU law
Authors: Macmaoláin Caoimhín
Published: March 2022

This article examines aspects of EU food labelling requirements, explaining how under current law, consumers can still be deceived, misled and confused. It assesses whether this has arisen because of the primacy accorded to other competing policies, asserting that consumers would not be best protected by the introduction of yet further amending legislation. Instead, what needs consideration is the strategic direction of the policy promulgated by existing laws. This article traces the development of EU food labelling laws from the early vertical legislation setting compositional requirements for specific products, through to the most recent, and possible future, horizontal requirements for all foodstuffs. Against this background, the article concentrates on the implementation of particular laws designed to address food–related health concerns, such as the use of additives and the proliferation of obesity related issues. It is concluded that Member States are shackled both by the evolution of current consumer law and the scope afforded to implement new laws relating to the promotion of healthy food, and questions whether the free movement of goods should still be accorded its traditional primacy.
Towards an ever greener Union? Competence in the field of the environment and beyond
Authors: Wennerås Pål
Published: March 2022

It is well known that the European Court of Justice has played an active role in shaping EC environmental law. Community competence in the field of the environment was in fact established by the Court in the Adbhu case (Case 240/83), and recent case law indicates that the Court has not grown less bold. This article examines environmental case law from the last five years through the prism of competence (EC vs. EU competence, EC vs. Member State competence, and EC competence vs. international obligations). Several of the cases have implications beyond the field of the environment, not only because of the horizontal dimension of environmental protection, but also since the judgments may give more general indications as to the Community judiciary’s position on distribution of powers and its affinity for teleological interpretations in order to ensure the effectiveness of Community law. Although the case law could be seen as an expression of a more general pursuit of an ever closer union, the author suggests that it above all reflects the importance which the Court awards environmental protection and a conviction that broad Community powers are necessary to ensure its effectiveness.
The Rome I Regulation
Authors: Lando Ole , Nielsen Peter Arnt
Published: March 2022

This article describes the most significant features of Regulation (EC) No 593/2008 on the Law Applicable to Contractual Obligations that will enter into force on 17. December 2009 (the Rome I Regulation). The Regulation will replace the Rome Convention on the same subject–matter. The authors approve of the “fine-tuning” of the provision regulating the parties’ rights to choose the applicable law. They welcome the provision on the law applicable in absence of an agreed choice. Though radically different from the corresponding provision of the Rome Convention it will satisfy the need for predictability. The new provisions on transports of carriage and insurance contracts are also discussed. The authors find the provision on the application of foreign international mandatory provisions very useful. However, they regret that the Regulation does not allow courts to apply the lex mercatoria in international disputes on an equal footing with national law. They also emphasize the need for a choice–of–law rule on jurisdiction agreements, which has not been provided in the Regulation.
How wide is “the widest possible”? Judicial interpretation of the exceptions to the right of access to official documents revisited
Authors: Adamski Dariusz
Published: March 2022

Both the growing body of jurisprudence on access to documents held by the European Parliament, Council and Commission, and the pending process of amending Regulation 1049/2001 encourage (re)assessment of the current and past court decisions delineating boundaries of this accountability enhancing right. As a contribution to the discussion, the article explores judicial interpretation of exceptions to the access right, in order to assess how the case–law fits into the main principle of the regime established by the Regulation 1049/2001—of ensuring the widest possible access to official documents. The analysis covers the main categories of the exceptions: mandatory, discretionary, relating to the protection of the decision–making process and to documents originating from Member States. In particular it focuses on controversies raised by court decisions granting the institutions broad discretion in deciding on access requests. In conclusion the author makes a case for a more uniform interpretation of the exceptions and suggests a reform agenda.
State liability for breaches of Community law by national courts: Is the requirement of a manifest infringement of the applicable law an insurmountable obstacle?
Authors: Beutler Björn
Published: March 2022

This paper deals with the requirement of a manifest infringement of the applicable law which the European Court of Justice has named in its Köbler and Traghetti del Mediterraneo judgments as a necessary prerequisite for holding Member States liable for breaches of Community law attributable to national courts adjudicating at last instance.

The requirement is first placed within the system of conditions set up in Brasserie du Pêcheur. It is shown that it constitutes no additional condition, but a strict interpretation of the second Brasserie condition which stipulates that the breach must be sufficiently serious.

An analysis of the relevant statements made in Köbler and Traghetti reveals that the prerequi-site constitutes a limitation as the specific nature of the judicial function and the legitimate requirements of legal certainty must be taken into account. Yet at the same time it follows notably from Traghetti that the requirement of a manifest infringement must not be under-stood as an insurmountable obstacle. This finding is corroborated by placing the aforementioned judgments in a broader context of Community and State liability decisions as well as principles of Community law which form the basis for State liability.
Public procurement law and internal market law
Authors: Drijber Berend Jan , Stergiou Hélène
Published: March 2022

In this contribution the interface between EC Public Procurement Law and Internal Market Law case law is analysed. The core question is to what extent primary Community law may be a source of obligations to tender as well as of justifications for not tendering. Some elements of the ‘Transparency case law’ (Telaustria, Coname, Parking Brixen) developed in public procurement cases will be compared with other case law on the fundamental freedoms. This case law also raises new questions, for example the relationship with Article 86 and, in particular, the question whether the award of an exclusive right shall be subject to a transparent procedure. Attention is further given to possible justifications of a presumed infringement of transparency obligations, both under Article 86(2) EC and by virtue of “rule of reason exceptions”. The “interaction” among possible derogations of transparency obligations, both under primary law and specific secondary law, completes the analysis. By way of general conclusion the authors find that the Transparency case law is in some respects open to criticism. However, this case law fits well into the wider body of case law relative to the fundamental freedoms of the Treaty. EC public procurement law genuinely is an integral part of the internal market law.
In the Name of Sovereign Statehood: A Critical Introduction to the Lisbon judgment of the German Constitutional Court
Authors: Thym Daniel
Published: March 2022

In its judgment on the Lisbon Treaty, the German constitutional court presents a comprehensive assessment of European integration. While the evaluation of the Lisbon Treaty assumes a prominent role, many considerations are meant to have a lasting impact on the European project. The judgment should therefore be read as the overture to future debates, not an epilogue on the ratification of the Lisbon Treaty. Its immediate outcome concerns future adjustments of primary law, to which the German parliament will have to consent. More important will be the Court’s involvement: any future Treaty revision will be scrutinized whether it establishes European federal statehood – a move which only the German people may authorize, probably by means of a constitutional referendum. In a similar vein, the leitmotiv of sovereignty statehood guides the demotion of the European Parliament as a source of direct democratic legitimacy and the identification of national reserve powers which cannot be transferred to the European level. Among European lawyers and practitioners the Court’s claim as the ultimate arbiter of European law will draw continued attention. The Lisbon judgment reaffirms the potential ultra vires review of EU law and establishes the necessary respect for German constitutional identity as an additional control standard. Its resolute language and thinly veiled warnings underline the Court’s self-esteem as an influential voice in European affairs. National parliaments in other Member States will also take note. The importance of competences for national identity remains an issue at every Treaty revision.
The Clash Between European Freedoms and National Direct Tax Law: Public Interest Defences Available to the Member States
Authors: van Thiel Servaas , Kofler Georg , Cordewener Axel
Published: March 2022

In the early days of Community law the ECJ, still sheltered from political constraints, was able to develop its jurisprudence on the EC fundamental freedoms with a view to enhancing the development of Community law and to advancing the Internal Market. More recently, however, the case law in the field of direct taxation has more and more come into the political limelight as fundamental tax policy questions and billions of tax revenue are at stake. As the Court’s decisions also take account of the dynamic evolution of the Community’s legal system and are much influenced by considerations of policy and economics, recent case law seems to put more emphasis on a cautious re-balancing of taxpayer rights under the fundamental freedoms and possibilities for Member States to justify restrictive tax measures on the basis of overriding public interest reasons. However, the Court’s recent attempts have also warranted criticism from the perspective of legal certainty, due to the potential disregard of legal precedent and the concern that the Court might deviate from general Internal Market principles in this particular area. Against this background, the present contribution aims at systematizing the recent developments and dogmatic approaches underlying the body of case law in the field of direct taxation with respect to (acceptable and unacceptable) justifications of infringements on taxpayer rights to free movement and non discrimination.
The Unfair Commercial Practices Directive in Context: From Legal Disparity to Legal Complexity?
Authors: Anagnostaras Georgios
Published: March 2022

Based on a maximal harmonization model, the Unfair Commercial Practices Directive purports to introduce legal consistency and simplicity towards consumers by removing the differences between disparate commercial illegality standards that applied at national level in relation to the sale of goods and the provision of services. However, its practical reality seems likely to compromise its operation as a viable instrument of legal convergence and market transparency. This is partly because it relies predominantly on general clauses and vague notions, giving rise to the potential risk of interpretative disparities in its application by national courts. It is, however, primarily due to its strategic choice to approximate only the national laws on business-to-consumers relations, disregarding the evident impact that the laws on commercial practices may also have on the interests of competitors, and posing serious implementation problems in those countries where consumer protection and fair competition policy have been traditionally integrated in the same body of law. This is not, however, to say that the Directive does not constitute a revolutionary legal measure with potential implications even outside the scope of consumer protection policy. This is particularly so as concerns the legislative status it attributes to the average consumer concept, developing the respective Community case law and paving the way to its application in other related EU law areas
Is there a need for a Rule of Reason in European State aid law? Or how to Arrive at a Coherent Concept of Material Selectivity?
Authors: Bartosch Andreas
Published: March 2022

The ban on State aid as laid down by Article 107 (1) TFEU requires any advantage to be selective, meaning that it must be granted to only certain undertakings or to the production of certain goods. The jurisprudence of the European courts on this notion has been anything but coherent and straightforward in recent times. In 2001 the European Court of Justice accepted in its famous Adria-Wien ruling a so-called objectives-based approach, meaning that a Member State is justified to pursue different policies, such as environmental, social, or other objectives, without necessarily rendering a given measure materially selective. The General Court in two judgments handed down some years later built on this precedent and enlarged (to a considerable) extent the freedom enjoyed by Member States to pursue such objectives without falling under the State aid prohibition. In a more recent ruling the Court of Justice set aside one of those decisions, basing its conclusions on the premiss that the ban on State aid is purely effects-based. The analysis provided in this article takes this trias of rulings from the Luxemburg courts as the starting point to perform two main tasks. First, it looks into whether the objectives-based approach initiated by Adria-Wien can still be regarded as “good law”. Second, it then aims to present its own solution for exiting the current status of legal uncertainty and in this has, hopefully, struck an equitable balance between the goal of State aid to prevent distortions of competition and a sensible degree of freedom to be enjoyed by Member States to pursue (legitimate) goals of policy without any need to justify them in terms of State aid control.
From the Banana Saga to a Sugar Saga and beyond: Could the Post-communist Constitutional Courts Teach the EU a Lesson in the Rule of Law?
Authors: Albi Anneli
Published: March 2022

During the Banana Saga in the 1990s, several German courts questioned the level of review of EU measures by the EU Courts. This article explores recent direct actions and domestic cases regarding the sugar market in the new Member States, which seem to corroborate the concerns raised during the Banana Saga. The point of departure is a recent judgment of the General Court, upholding the validity of a European Commission Regulation that retroactively imposed a fine on a country for surplus sugar held by private individuals, despite the fact that the Court acknowledged the absence of a textual basis for the Commission’s requirement to eliminate private household sugar, and despite the Court’s agreement that in practice it had been impossible to eliminate such sugar. The Court upheld the fine on the basis of teleological reasoning. The judgment is contrasted with the case law of post-communist constitutional courts, where in reaction to experiences during the Communist regime, a strong protection has been granted to legal certainty, non-retroactivity and property rights, and it is prohibited to impose obligations or sanctions retroactively or without a statute. It will be suggested that a more rigorous approach to the protection of these rights and principles, which the post-communist constitutional courts regard as the central elements of the rule of law, ought to become part of the EU’s “common constitutional traditions”.
Walking on a tightrope: The draft ECHR accession agreement and the autonomy of the EU legal order
Authors: Lock Tobias
Published: March 2022

This contribution measures the first draft agreement on the accession of the EU to the ECHR by the strict requirements of the autonomy of the EU legal order. It concludes that the review of EU action by the ECtHR would be compatible with the autonomy. However, the procedure before the ECtHR provided for in the draft agreement raises serious problems. Both the co-respondent mechanism and the prior involvement of the ECJ are well-intended suggested solutions, but may not pass the hurdles erected by the ECJ in its case law on the autonomy.
Effective collective redress in antitrust and consumer protection matters: A panacea or a chimera?
Authors: Tzakas Dimitrios-Panagiotis L
Published: March 2022

Although collective redress constitutes a significant feature of modern judicial systems, EU law seems reluctant as to the introduction of such mechanisms. On the one hand, the role of collective rights of action remains indispensable in order to promote procedural efficiency and overcome rational apathy, especially in the fields of antitrust and consumer protection law where illegal business practices may cause scattered and low-valued damages to a multitude of harmed individuals. On the other hand, the potential for unmeritorious claims and abusive actions should not be underestimated, so that specific safeguards are put in place in order to avoid the emergence of a litigation industry in the form of entrepreneurial attorneys.

In light of the recent public consultation launched by the EU Commission, the present paper addresses the challenges and makes propositions for the future collective redress legislation. For that reason, an in-depth analysis as to the substantive, jurisdictional and conflict-of-laws aspects of both representative and collective actions has to be undertaken. In each case, specific consideration will be given to the peculiarities of the Member States procedural traditions and the policy objectives underpinning EU competition and consumer protection law.
Overcoming absolute primacy: Respect for national identity under the Lisbon Treaty
Authors: von Bogdandy Armin , Schill Stephan W.
Published: March 2022

The present article examines the function of the revised identity clause in Article 4(2) TEU. By focusing on the fundamental political and constitutional structures of Member States, Article 4(2) TEU provides a perspective to overcome the idea of absolute primacy of EU law and the underlying assumption of a hierarchical model to understand the relationship between EU law and domestic constitutional law. The revised identity clause in Article 4(2) TEU not only demands respect for national constitutional identity, a notion determined through a close interplay of domestic constitutional law and EU law, but can be understood as permitting domestic constitutional courts to invoke, under certain limited circumstances, constitutional limits to the primacy of EU law. At the same time, Article 4(2) TEU, in tandem with the principle of sincere cooperation contained in Article 4(3) TEU, embeds these constitutional limits into an institutional and procedural framework in which domestic constitutional courts and the Court of Justice interact closely as part of a composite system of constitutional adjudication.
Case law of the European Court of Justice on sex discrimination 2006-2011
Authors: Koldinská Kristina
Published: March 2022

This article aims to point out some important cases recently presented before the ECJ which show that the area of gender equality is still a very dynamic and vital field in EU law, and that thanks to its long-lasting tradition it provides a very important source for legal argumentation and reflection.

The article covers the period from 2006 to May 2011. It discusses firstly the enforcement of EU equality law connected with the issue of horizontal direct effect of the directives reflected in the sex equality case law, which might be further strengthened by the entry into force of the Charter of Fundamental Rights in EU. Special attention is paid to the discourse on retirement pension ages, with an analysis of the Kleist case. Further sections reflect some typical issues, which always return to the ECJ, such as equal pay, pregnancy and parental leave, since in the period covered by this contribution so many cases on pregnancy appeared. The topics which were new before the ECJ, like the multidimensional discrimination are also taken into consideration. Last but not least, attention is paid to the issue of gender equality in access to and supply of goods and services. In this connection, the Lindorfer and Test-Achats cases are discussed in more detail.
The European debt crisis and European Union law
Authors: Ruffert Matthias
Published: March 2022

Economic governance in the EU has been undergoing substantial changes since the beginning of the sovereign debt crisis. The re-arrangements are affecting the convergence of European economies, budgetary control and emergency reactions. Some of them are still at proposal stage, such as the "sixpack" proposed by the Commission for a series of legislative measures on convergence and budgetary surveillance, which is still under scrutiny in Parliament and which is accompanied by activity of the European Council (Euro-Plus-Pact, European Semester). Emergency action is being undertaken since May 2010 (Greek package, EFSM, EFSF) and should lead to a newly inserted provision in the TFEU together with a new international financial institution (ESM). From a European constitutional lawyer's view, the soundness of the reforms already at proposal stage, as well as the emergency activity currently undertaken, may be called into question. European constitutionalism is at stake, as core rules of the Treaties are disrespected. Democratic governance is threatened, as most of the new structures are devoid of parliamentary backing. Stability and welfare are jeopardized as the policy of the Union deviates from successful ways of economic governance as enshrined in the Treaties. European legal scholarship must not be reluctant in pointing at such deficiencies and should participate in showing ways out of the crisis.
The European Securities and Markets Authority: Lifting the veil on the allocation of powers
Authors: Schammo Pierre
Published: March 2022

The European Securities and Markets Authority (ESMA) was established in 2011 in the wake of the financial crisis. As one of the European Supervisory Authorities (ESA), it is part of the new European System of Financial Supervision. In order to carry out its tasks, ESMA was allocated an impressive range of powers which it exercises in relation to national competent authorities or market actors, including Credit Rating Agencies. The aim of this article is to examine ESMA's powers and the questions that they raise. As an EU body, ESMA was delegated certain powers. This fact raises some important issues - notably with respect to the Meroni doctrine - which this article investigates. In particular, it argues that EU actors have mostly been tight-lipped over the precise constitutional limitations of a delegation of powers when vesting powers in ESMA. The main message of this article is that the lack of clarity characterizing the current state of affairs is unsatisfactory and should be addressed.

PERLIO -
The Directive on cross-border healthcare or the art of codifying complex case law
Authors: de La Rosa Stéphane
Published: March 2022

The main objective of this article is to study the recent Directive on the application of patients' right in cross-border healthcare by putting it into perspective with the case law that initiated it, together with the trade-offs that had to be taken into account. The drafters of the Directive have dealt with a number of trade-offs among the requirements of the respect for the freedom to receive care (as part of the freedom to provide services), the recognition of rights for the patients, the respect for the historical competence of Member States and the diversity of different healthcare models, and the protection of national financial balances. As a result of theses trade-offs, the Directive goes beyond a mere codification of the Kohll and Geraets-Smits case law. It displays an original combination of the codifying solutions derived from the free provision of services, the facilitation of the exercise of patient mobility by highlighting information in relation to such mobility, and a notable focus on several cooperating tools between States in connection with Article 168 TFEU. The article then raises some questions about the efficiency of this combination and its contribution to the realization of a genuine European Health policy.
Shareholders between the market and the State. The VW law and other interventions in the market economy
Authors: Gerner-Beuerle Carsten
Published: March 2022

This article takes the VW case as a starting point for a systematic examination of the golden shares jurisprudence of the Court of Justice. The golden shares decisions have received much attention, but a coherent test to establish whether a national measures constitutes a restriction of the free movement of capital has not yet emerged. The Court uses the notion of "derogation from ordinary company law", whereas commentators propose to focus on the effects of potentially restrictive measures. The article seeks to rationalize the golden shares decisions and question the delimiting criteria developed by the Court. In order to do so, it distinguishes between different types of State intervention in the market economy and derives four arguments from the case law that help explain the Court's interpretation of the Treaty. The article shows that the argument with the highest explanatory power is a genuinely political one, that concerns the internal governance structure of companies, an area not regulated by European company law. The Court's approach has implications for the different models of corporate governance and of the market economy prevalent in the Member States. The article submits that the free movement of capital is the wrong tool to level these differences. Accordingly, it recommends exercising constraint when reviewing golden shares.
Sanctions against Member States under Article 260 TFEU: Alive, but not kicking?
Authors: Wennerås Pål
Published: March 2022

Since the Treaty of Maastricht introduced the possibility of imposing financial penalties on Member States that failed to comply with judgments of the Court, only fourteen rulings have been handed down by the Court under Article 260 TFEU (ex 228 EC). Not all of these cases resulted in sanctions, and the penalties imposed in some judgments were hardly sufficient to deter similar infringements from recurring. However, some improvements can be seen in recent years and the Lisbon Treaty has introduced amendments aimed at bolstering the effectiveness of Article 260 TFEU.  Taking stock of the case law and the Lisbon amendments, this article explores whether Article 260 TFEU has been effectively employed as a tool for enforcing EU law and to what extent the Treaty amendments are likely to make a difference.
A missing piece in the horizontal effect jigsaw: Horizontal direct effect and the free movement of goods
Authors: Krenn Christoph
Published: March 2022

Whether and to what extent private actors are directly bound by the provisions on free movement of the EU Treaties, also known as horizontal direct effect of the freedoms, has in the last years been subject to intensive and controversial academic debate. The Court of Justice of the European Union has attributed horizontal direct effect to the free movement of persons, under Articles 45, 49 and 56 TFEU. In sharp contrast, the Court has refused to apply the free movement of goods, Article 34 TFEU, directly to the conduct of private actors, not explaining the reasons for this different approach.

This article aims to contribute to understanding the Court's approach and seeks answers to a number of key outstanding questions, namely what role horizontal direct effect does play currently, what role it can and should play in the free movement of goods, and whether a uniform approach to fundamental freedoms is desirable. In doing so it will be tried to assign the free movement of goods an appropriate place in a coherent overall approach to horizontal direct effect in free movement law. This approach, it is argued, should respect the nature of the different free movement provisions, their genesis and the Court's case-law on horizontal direct effect.
The legal mobility of companies within the European Union through cross-border conversion
Authors: Mörsdorf Oliver
Published: March 2022

Over the last decade, the case law of the ECJ on the freedom of establishment for companies has led to a high degree of corporate mobility within the EU. As a result of that case law it is nowadays common sense among academics that companies which have been founded under the law of a Member State may transfer their real seat to another Member State with no change of legal form as far as the Member State of incorporation allows for such an operation. However, it remains to be clarified whether EU law also grants - besides said right of physical establishment - a right of legal establishment by allowing companies to convert into a legal form of another Member State. In the first part of the article, there is an analysis of whether companies may invoke primary law, notably the right of establishment, in order to conduct such an operation. In this context, two forms of cross-border con-version are addressed separately: cross-border-conversion with an attendant transfer of real seat and, far more problematic, isolated cross-border conversion. The second part of the article contains an outlook on a possible secondary measure enabling and regulating the cross-border conversion of EU companies. Although the Commission has stopped working on a 14th directive on the transfer of registered seat, it will be demonstrated that there is actually a strong need for such a measure. Special focus will also be on the question whether the EU has competence to take any steps in that direction, a problem which is often overlooked, particularly with regard to isolated cross-border conversion.
A definition that does not work: The impact of the EU Framework Decision on the fight against organized crime
Authors: Calderoni Francesco
Published: March 2022

This article analyses the impact of the 2008 Framework Decision on the Fight against Organized Crime (part of the Stockholm Programme) on the national legislations of the Member States. While this measure has been criticized by academics and policy makers in the last years, the Council will soon be called to evaluate it on the basis of a report by the Commission. On the basis of a comparative analysis of the relevant provisions in all the Member States, the article demonstrates the Framework Decision did not have any impact on national legislations and has not increased the level of harmonization among the Member States, with consequences on mutual trust and international cooperation in criminal matters. The findings suggest that the EU should reconsider its policy in the field of organized crime legislation.
External representation of the European Union in the conclusion of international agreements
Authors: Manzini Pietro , Gatti Mauro
Published: March 2022

From a political viewpoint, the external representation of the European Union is an extremely sensitive topic, affecting the visibility and role of European institutions and Member States on the international scene. From a legal perspective, this topic is particularly challenging, since the EU Treaties, as amended by the Lisbon reform, are not completely straightforward in this regard. Such combination of political sensitivity and legal uncertainty renders the Union's representation very contentious. This area has therefore seen not-so-hidden "turf wars" that damaged the image and effectiveness of the EU's external action. The article analyses the issue of the Union's representation with respect to the conclusion of international instruments and, in particular, international agreements. This topic has been profoundly affected by the Lisbon reform, which explicitly provides that the European Commission and the High Representative shall ensure the Union's external representation, in non-CFSP and CFSP areas, respectively (Arts. 17 and 27 TEU). This reform seems to enhance the consistency and unity of the Union's representation and of the Union's ability to carry out effective negotiations, by fostering the self-representation of the Union, with the exclusion of any role previously held by Member States and the rotating Presidency.. The analysis brings to light the two factors preventing the reform from fully achieving its objectives in practice. First, Member States sometimes favour the mixed form of international agreements, even when it would not appear to be strictly necessary. Secondly, Member States seem not to fully accept the consequences of the Treaties' reform and often rely on pre-Lisbon practices, which no longer have any legal ground.
What to keep and what to change in European electronic communications policy?
Authors: de Paz José Carlos Laguna
Published: March 2022

Almost fifteen years after full liberalization, electronic communications provide greater economic efficiency, innovation and consumer satisfaction. However, efforts should be made to improve the effective integration of operators, networks and services at European level.  At present, tuning ex ante regulation is better than alternatives, such as phasing out regulation or applying structural remedies. A more flexible approach could facilitate network competition at the deepest level at which it is effective and sustainable. That notwithstanding, market driven forces will not secure the deployment of next generation networks in large parts of the territory. To this end, remedies will need to be applied, taking care not to distort competition or to discourage the emergence of potential competitors. Keeping an open Internet, based on best-efforts transmission, does not exclude allowing network operators from applying reasonable traffic management practices.
European integration through standardization: How judicial review is breaking down the club house of private standardization bodies
Authors: Micklitz Hans-W. , van Gestel Rob
Published: March 2022

Standardization is slowly but slowly but surely marching forward into the public domain. The revision of the European standardization package is stimulating this development because the use of private standards in public policy is supposed to spur technological innovation and reduce barriers to trade. This may explain why the Commission wants to speed up the standardization process. In the meanwhile, however, a number of important legal issues remain unaddressed in recent European policy and legislation on standardization, such as: how far "delegation" of public rulemaking to private standardization bodies may go and if and when this could come into conflict with the alleged voluntary and self-regulatory nature of these standards; whether copyrights that rest on standards limit the access to pieces of legislation that refer to standards in an unlawful way, and who is responsible for the content of the standards: the state or the market? Our hypothesis is that the "club mentality" of standards makers has, until recently, worked as an effective shield against market dynamics and judicial review. However, under the influence of recent case law from the ECJ and national highest courts, the "club house" of the standards bodies is starting to show cracks.