bluuebunny/crossref_metadata_2025 huggingface dataset:
How to Go Ahead as an EU Law National Judge
Authors: Biondi Andrea
Published: April 2022

The effective protection of those rights that the EU legal order confers on individuals has traditionally been ensured by a continuous dialogue between the supranational judiciary, the European Court of Justice (ECJ), and all national courts. Such a constitutional settlement, which worked reasonably well for several years, is now considered by some commentators under threat. The obligations imposed on national courts are perceived as too burdensome, and several recent judgments have been regarded as intruding excessively into national procedural autonomy. This article analyzes recent decisions such as Kempter, Impact, and Lucchini, SPA, and argues instead that these fears are unjustified mainly because both the ECJ and national courts are striving to achieve the same aims, namely, the effective application of a given legal system, the fair composition of litigation, the protection of the parties involved, and the promotion of the efficiency of the legal process.
Sector-Specific Regulation and Competition Law: Between Convergence and Divergence
Authors: Szydlo Marek
Published: April 2022

The present article focuses on the question of mutual relations between sector-specific regulation (existing on the community level) and general competition law (mainly contained in Articles 81 and 82 of the Treaty and in Regulation No. 139/2004). The author examines the above-mentioned relations on the three following planes: (1) aims of both sets of rules, (2) nature of legal norms (legal rules) included in both sets of rules, and (3) the way of application (modus of enforcing) of the legal norms that are included in both of the discussed sets of rules. The final conclusion is that – against many different opinions – there exists a very advanced convergence in that respect, which may even put into question the very need of the existence of the sector-specific regulation.
The Role of the Spanish Constitutional Court in the Judicial Review of Parliamentary Legislation
Authors: Castaño Abel Arias , Corral Benito Alaez
Published: April 2022

This article considers the main procedures established in the Spanish Constitution to carry out the Judicial (Constitutional) Review of Parliamentary Legislation. After briefly describing the institutional role and the organization of the Spanish Constitutional Court, the paper deals with the two main procedures for the review of parliamentary legislation: the appeal of unconstitutionality (a politically rooted procedure) and the questioning of unconstitutionality (that unlike the appeal is a judicially rooted procedure and represents a middle way of judicial review between the American-US Model and the European Model). Each procedure is critically analysed taking into account four different elements: the plaintiffs or applicants, the challengeable legislation, the model used as legal basis for the constitutional scrutiny, and the development of the procedure as such. The article finishes with a concluding section about the main effects of the Decisions of the Constitutional Court in these judicial review procedures.
Individuals from Minority and Marginalized Groups before the Strasbourg Court: Legal Norms and State Responses from a Comparative Perspective
Authors: Anagnostou Dia
Published: April 2022

The obligation of states to implement the European Court of Human Rights case-law and the potential to exert influence in domestic laws and policies have been instrumental in the establishment and consolidation of the regime of human rights protection established by the European Convention on Human Rights. This article outlines a frame for exploring domestic implementation of ECtHR judgments by specifically focusing on case-law pertaining to marginalized individuals and minorities across different countries. The Court’s jurisprudence has progressively extended the scope of the civil and political rights contained in the Convention to address and at times embrace a multifaceted set of rights claims by non-dominant and marginalized groups, such as prisoners, immigrants, refugees, ethnic, religious, sexual minorities, etc. The purpose of the research introduced by this article is to comparatively explore the conditions under which state authorities implement adverse judgments pertaining to such groups, as well as to probe whether these promote rights-expansive policy change at the national level.
Litigation before the European Court of Human Rights and Domestic Implementation: Does the European Convention Promote the Rights of Immigrants and Asylum Seekers?
Authors: Steinkellner Astrid , Buchinger Kerstin
Published: April 2022

The purpose of this article is to compare the evolution and current state of European Court of Human Rights (ECtHR) jurisprudence in issues of immigration and asylum. Looking at the variable patterns of litigation and implementation across Europe, the article examines the common challenges to all States in dealing with complex questions of state sovereignty, the regulation of the entry and stay of immigrants and asylum seekers and the human rights of non-nationals. Following a description of the Council of Europe (CoE) framework in dealing with immigration and asylum issues, the article goes on to examine noteworthy case law from the Strasbourg Court, followed by a detailed account of the variable patterns and causes of litigation in different European Union Member States and the different patterns of implementation of ECtHR decisions. The article concludes with a consideration of the impact of European human rights law on the protection of the rights of individuals with an immigration or asylum background.
Open Government in Poland: The Current Situation and Its Perspectives
Authors: Banaszak Boguslaw , Bernaczyk Michal
Published: April 2022

Article presents the evolution of the concept of open government in Poland and implementation of new technologies in law-making processes. The emergence of civic society in Middle and Eastern Europe has brought along a profound interest in the concept of 'open government'. The Polish concept of civic participation in law-making process is based on an electronic access to information held by the government. The Polish law imposes on public entities a duty of creating their own electronic mandatory data bases as a part of national system of public information. This technology has been most distinctively combined with the constitutional freedom of information and lobbying in the law-making process enabling indirect civic participation in deciding on the matters significant for the state.
Embedding Consultation Procedures: Law or Institutionalization?
Authors: Meuwese Anne
Published: April 2022

This contribution explores the implications of the European Commission's choice to include reporting on consultation in the set of impact assessment (IA) requirements. The text book story on how IA and consultation can only strengthen one another and benefit the citizen is contrasted to some more problematic riskier aspects of this joint Better Regulation (BR) vehicle. It then zooms in on two different pathways to stronger (legal) embedding of consultation: through review and through social and institutional processes of incremental norm formation.
The European Research Council as Case Study for Agency Design in the EU
Authors: Hofmann Herwig C.H.
Published: April 2022

Agencies have become a ubiquitous part of the administrative structure of the EU. They fulfil diverse and important roles in implementing EU policies. As diverse as the tasks of EU agencies are their forms of organization. Few have been established by the Treaties themselves; most have been created on the basis of secondary legal acts. Agency design has, thus, become an important part of EU legislative activity. The future of agencies is, however, very much subject to debate. This article does not analyse agencies in the EU context from an abstract point of view. Instead, it studies possible structural and procedural arrangements for agencies on the basis of a real-life case study, the European Research Council (ERC), chosen from the area of the EU's research policy. The ERC displays not only a rather unusual structure with creative institutional design. It also stands as an example for many controversies about independence and accountability of agencies in the EU. This short article, after introducing the ERC and before looking at the various options for agency design in the EU in general terms, looks at the options for changing the ERC's legal status and architecture. This is used as a canvas to outline some thoughts on the role and independence of agencies in the EU.
English Rapport: The Coalition and the Constitution
Authors: Graham Cosmo
Published: April 2022

This articles discusses a number of constitutional issues arising out of the Coalition's Programme for government in the UK. It examines the issue of elections to the House of Commons and a fixed-term Parliament, which leads to a second issue, namely, reform of the House of Lords, Parliament's secondchamber. It then looks at the relationship between the UK and Europe, in the shape of the European Union and the European Convention on Human Rights. A final section looks at changes in relation to devolution, both planned and speculative. A major theme is that the recent constitutionalchanges in the UK, both those in the past and those that are currently being considered, are not part of an over-arching programme of constitutional reform based on some set of coherent principles. Understandable though this is in the context of a Coalition government, it remains a major problem.
Article 6 ECHR, Civil Rights, and the Enduring Role of the Common Law
Authors: Anthony Gordon
Published: April 2022

This article examines the role that the common law has played in Human Rights Act 1998 case law on the protection of 'civil rights' within the meaning of Article 6 ECHR. Focusing on Article 6 ECHR's 'disclosure' and 'full jurisdiction' requirements, it highlights an increasingly nuanced relationship between the ECHR and common law in cases under and outside the Human Rights Act 1998. Although the general pattern within the case law has been one of domestic court fidelity to the ECHR - something that is wholly consistent with section 2 of the Human Rights Act 1998 - the article notes areas in which the courts have been reluctant to adapt common law principles, as well as instances of common law protections exceeding those available under Article 6 ECHR. The article suggests that such lines of reasoning reveal a robustness within the common law that brings a multi-dimensional quality to the Human Rights Act 1998. It also suggests that such robustness can be analysed with reference to 'common law constitutionalism' and a corresponding imagery of 'dialogue' between the domestic courts and European Court of Human Rights.
The French Parliament: A European Scrutineer or National Actor?
Authors: Jancic Davor
Published: April 2022

With the Treaty of Lisbon in force, the expectation for national parliaments to democratize EU decision making has risen tangibly. This raises the question of the relationship between them and the European Parliament, as two channels of EU legitimation. The main argument of this article is that, in circumstances of high political salience of EU initiatives, national parliaments can be deemed to be European actors, performing their constitutional functions within a broader EU legal order as direct counterparts of EU institutions. To demonstrate this, we delve into the French Parliament's scrutiny of the Services Directive and the European External Action Service Decision, both of which have sparked strong reactions in many parliamentary corners of Europe. We focus on the role perceptions of the French MPs and senators in their ex ante monitoring of these two dossiers. The analysis reveals that political control is not always directed only at the Government, but that EU institutions can be addressees of national parliamentary scrutiny.
The Case for Enshrining a Right to Environment within EU Law
Authors: O’Gorman Roderic
Published: April 2022

Since the Single European Act in 1987, the European Union has had increasing competence to legislate on environmental matters. However, while the EU must now integrate environmental protection requirements into the definition and implementation of its policies and activities, there is no explicit protection of a 'right to environment' within Union law. The absence of such a right is unsurprising, as the debate on the existence and applicability of environmental rights is both recent and unresolved.
Informal Information Processing in Dispute Resolution Networks: Informality versus the Protection of Individuals Rights?
Authors: Galetta Diana-Urania
Published: April 2022

In the last two decades the EU Commission has launched and supported a number of networks' initiatives, aimed at providing an alternative to the courts in protecting individuals against alleged misapplications of European law by national authorities. Starting from the analysis of three of such networks of administrative cooperation (SOLVIT, PPN and EU Pilot), all of them developed in an informal way and lacking any formal legal basis, the articles points out the problems arising in the specific field of information management. The informal way of working such alternative tools utilize is indeed too informal, if one considers the huge quantity of information which are conveyed and exchanged within these networks. The future development of such networks has therefore to cope first of all with information exchanges and transparency issues which are strictly related to citizens' rights and their protection.
An Instrument of Intensified Informal Mutual Assistance: The Internal Market Information System (IMI) and the Protection of Personal Data
Authors: Lottini Micaela
Published: April 2022

Public administrative authorities at a national and at a European level, more and more often, have to cooperate for the application of European regulations; hence, they are faced with the new challenges and problems raised by the different languages, administrative and working techniques of their counterparts. The Internal Market Information (IMI) system was conceived to overcome these difficulties and to help national and EU public administration to cooperate in order to make prompt and lawful decisions. The mutual exchange of information in IMI raises relevant legal issues in relation to the protection of the rights of the data subject when their data are processed within the network.
Departing from the Ordinary: The Executive Prerogative in a State of Emergency
Authors: Pottakis Andreas
Published: April 2022

Now, in a well-ordered republic, it should never be necessary to resort to extra-constitutional measures; for although they may for the time be beneficial, yet the precedent is pernicious, for if the practice is once established of disregarding the laws for good objects, they will in a little while be disregarded under that pretext for evil purposes. Thus, no republic will ever be perfect if she has not by law provided for everything, having a remedy for every emergency and fixed rules for applying it.
The Court of Justice, the Bundesverfassungsgericht and Legal Reasoning during the Euro Crisis: The Rule of Law as a Fair-Weather Phenomenon
Authors: Beck Gunnar
Published: April 2022

Since 2010 the EU has been in an 'emergency' situation due to the euro crisis, where the crisis management by the EU institutions, notably the European Central Bank, and national governments has been increasingly out of step with the EU Treaties and the natural meaning of the provisions defining the mandate of the central bank and the EU's economic policy powers. This article examines the judicial response to the euro crisis. The discussion will focus on the Pringle decision of the Court of Justice of the EU and the ESM judgment of the German Federal Constitutional Court (hereafter 'FCC'), in which both courts had to consider the compatibility of the European Stability Mechanism (hereafter 'ESM') with the EU Treaties and, in the case of the German Constitutional Court, also with the German Constitution known as the Grundgesetz. Further but less detailed consideration will be given to other decisions handed down by both courts in connection with the euro crisis since 2011.

In relation to the Pringle decision, the author will summarize the key aspects of the decision and analyse the Court's legal argumentation to justify its conclusions. It is argued that the Court's general approach exhibits features which afford the Court great flexibility to take underhand account of extra-legal factors of judicial decision-making, notably political goals and institutional self-interest. In Pringle, however, the Court exploits the vagueness and norm uncertainty in its general approach to the maximum, to a point where legal reasoning no longer imposes any meaningful constraints on judicial decision-making. The author further shows that the Court of Justice's pragmatic and politically compliant response to the euro crisis is mirrored by the approach of the German Federal Constitutional Court (hereafter 'FCC') which, in its judgments on the legality of the Greek financial aid measures, the eurozone's temporary and permanent rescue funds, and the ECB's so-called Outright Monetary Transactions ('OMT') unlimited bonds buys programme effectively abandoned most central tenets of its long-established and well-considered case law on the principles governing the relationship between EU and national constitutional law and the principles of national sovereignty and the EU's supra-national authority confined by the EU Treaties.
European Union Law in the Jurisprudence of Italian High Courts: Is the Counter- Limits Doctrine a Dog That Barks but Does Not Bite?
Authors: Galetta Diana-Urania
Published: April 2022

In many Member States Community law has been accepted through the adoption of specific rules of a constitutional nature, in order to identify the specific position of European Union (EU) Law within the national legal system. This was not the case for Italy where, for a long period of time, no special rule of a constitutional nature has been adopted for this specific purpose. In this complex situation the Italian Constitutional Court has constantly stressed the need to protect the fundamental principles of our constitutional law and the inalienable rights afforded to human beings and had identified both as part of a nucleus of Italian constitutional norms resistant to Community norms (controlimiti). Even after the adoption of the Treaty of Lisbon – where, thanks to Article 4 paragraph 2 TUE and Article 53 of the Charter of Fundamental Rights, a ‘unionization’ of the counter-limits has taken place – the Italian Constitutional Court, in a recent judgment of October 2014, has referred again to its mantra-like counter-limits doctrine.

Nevertheless, even if usually barking dogs do not bite, it is the author’s opinion that the counter-limits doctrine should be, once and for all, abandoned and replaced by another issue: the introduction of a specific provision about the European Union into our national Constitution. The real challenge, today, is not who or what prevails over who or what.

The real challenge is to be able to create a workable and effective cooperative relationships ‘Verfassungsverbund’, replacing confrontation and fight for the last word with an ongoing, on mutual trust based dialogue between high Courts.
From EU Citizens to Third Country Nationals: The Legacy of Polydor
Authors: Öberg Marja-Liisa
Published: April 2022

This article considers the possible effects of ‘Brexit’ on British nationals who would no longer be EU citizens. Any Member State withdrawing from the Union is unlikely to cut all ties to the Internal Market. It is almost inevitable that a departing State would need to set up a bilateral or multilateral arrangement for the purpose of continuing to participate in the Internal Market. The analysis compares the legal status of the citizens of a withdrawing state vis-à-vis EU citizens and examines whether and under what conditions third country nationals are conferred rights and obligations in the EU Internal Market which are equal to those enjoyed by EU citizens. In this context, the possibility of using the Polydor doctrine to empower third country nationals to an extent comparable to EU nationals is explored.
Defining Disability in the European Union Nondiscrimination Legislation: Judicial Activism and Legislative Restraints
Authors: Ferri Delia , Favalli Silvia
Published: April 2022

To date European Union anti-discrimination legislation, particularly the Employment Equality Directive (Directive 2000/78/EC), does not provide any clear definition of disability as a ground of discrimination. In the last few years, the Court of Justice of the European Union (CJEU) has attempted to fill this gap and discussed the concept of disability in several decisions, in the attempt to provide a definition of the ground of disability. The ratification by the European Union of the UN Convention on Rights of Persons with Disabilities (UNCRPD), has led to a clear overruling in the case law: the Court shifted from the medical model to the social model of disability. The UNCRPD now represents a milestone for the CJEU, which recognized that a duty arises to define disability in line with the social model, under the principle of consistent interpretation. Against this background, this article discusses CJEU case law, and compares and contrasts the judicial activism of the Court with the cautious approach adopted by the European Commission in the proposal for a new non-discrimination directive.
Reassessing the Accountability of European Union Decentralized Agencies: Mind the Independence Gap
Authors: Costa Marios , Peers Steve
Published: April 2022

This article examines two recent developments to ensure accountability and independence of the European Union (EU)’s decentralized agencies: the ‘Common Approach’ adopted by the EU’s political institutions, and the European Securities and Markets Authority (ESMA) judgment on the validity of the rules delegating extensive power to an EU agency. The article argues that first of all, the Common Approach strengthens the accountability and independence of EU agencies, yet it is not being sufficiently implemented and as such it fails to mitigate the accountability and independence deficits inherent in EU agencies. Secondly, it argues that ESMA strengthens the independence of the EU’s financial authorities at the expense of failing to address the existing accountability problem. On the whole, these developments are disappointing and fall far short of ensuring a coherent and effective system for safeguarding the agencies’ accountability and independence.
Breaking the Isolation? Italian Perspectives on the Dialogue Between the European Court of Justice and Constitutional Courts
Authors: Matteucci Stefano Civitarese
Published: April 2022

This article focuses on the relationships between the Italian Constitutional Court (ICC) and the Court of Justice of the European Union (ECJ) when the necessity of managing policies affecting delicate constitutional issues is at stake. The mechanisms which govern the use by national courts and particularly constitutional courts of the preliminary reference are put under scrutiny. The author claims that for the dialogue between the two courts to work is important to review the legal premises on which the involvement of a constitutional court in matters of European Union (EU) law is based. In Italy in principle only when EU law lacks direct effect would there be room for the ICC to intervene in the process of adaptation of the domestic legal system to the European, irrespective of the matter at stake. In this way the role of a constitutional court is barely distinguishable from regular courts.

The article purports that this situation is unsatisfactory from a normative point of view according to which constitutional courts should take part – using preliminary reference to the ECJ – in a broader European constitutional discourse and that a concept of ‘sensitive constitutional issues’ should instead inspire the mechanism by which constitutional courts deal with the area covered by Article 267 TFEU.
Increasing Inter-Parliamentary Cooperation in the European Union: Current Trends and Challenges
Authors: Fromage Diane
Published: April 2022

This article analyses the blossoming of the initiatives for inter-parliamentary cooperation currently observable in the European Union from a democratic legitimacy perspective. It shows that there exists numerous forms and settings for the cooperation among national parliaments (NPs) and with the European Parliament (EP) outside of the best-known and formalized inter-parliamentary conferences (Speakers’ Conference, Conference of Parliamentary Committees for Union Affairs of Parliaments of the European Union (COSAC), Common Foreign and Security Policy/Common Security and Defense Policy (CSDP) Conference and Article 13 Conference). There is, indeed, a rapidly growing number of formal and informal forums in which not necessarily all Member States parliaments, or the EP, are invited to participate. It is argued on this basis that while an increased participation of NPs especially to the European integration process can be positive and contribute to bringing ‘Brussels’ closer to the citizens, this evolution is not free of risk. If the number of inter-parliamentary initiatives continues to grow without order or control, their representativeness, legitimacy and in fine their impact is likely to become insignificant. Therefore, a re-recentralization and a strong reinforcement of their visibility and their clarity for the public in general are in order so that the benefits of such an increased parliamentary participation can be preserved.
Judicial Activism or Constitutional Interpretation?: An Analysis of the Workings of the Constitutional Court of Kosovo
Authors: Tahiri Xhafer
Published: April 2022

The article is an analysis of the workings of the Constitutional Court of Kosovo and investigates judicial activism of the Court. The Constitutional Court is established in the new Constitution of Kosovo; it is empowered with legal authority to review decisions and laws adopted by the Assembly of Kosovo regarding their constitutionality, and the constitutionality of laws or acts of the Government and institutions of public authority. The Court has broad legal authority to protect rights under the constitution, through broad ranging instruments for protecting those human rights guaranteed to all in Kosovo, including protection of ethnic minorities.

The jurisdiction of the Constitutional Court of the Republic of Kosovo is wider, in scope than any other in the region of the Balkans: modeled upon the German Constitutional Court and it has a jurisdiction almost over every aspect of the actions of public authority. Therefore its study might be especially useful for comparative studies of the constitutional transformation and judicial empowerment in the countries in transition.
Three Transparencies and the Persistence of Opacity in the Italian Government System
Authors: Giglioni Fabio , Carloni Enrico
Published: April 2022

In spite of an image as 'opaque' country, Italy has made significant efforts in recent years for affirming its way to transparency. To begin with 1990, Italian lawmakers approved many statutes aiming to make public authorities transparent, meaning open to a widespread control by citizens. This path, though, has not followed an unique and certain way, but has included different ideas of transparency, diverse tools and, finally, has brought about controversial results. The latest novelties with reference to the introduction of the so called 'Italian FOIA' are not out of this context, even if it is logical that a definitive assessment can not be given since its very recent approval. At the end the Italian government system recognizes three instruments: the right of access to documents, the total accessibility associated with the civic access tool and the new widespread civic access, better known as the 'Italian FOIA'. They are valued solutions whose application, though, could fail the final objective because of their scarce familiarity and feasibility.
Reading Up or Down EU Legislation: A Plea for a Principled Approach to an Extraordinary Judicial Power
Authors: Rademacher Timo
Published: April 2022

When courts apply the technique of purposive legislative interpretation there will be cases in which the result of that interpretation cannot be reconciled with the literal meaning of the statute. Confronted with such a situation, the CJEU tends to give prevalence to the purposive interpretation, i.e. to read up or down legislation it deems to be literally deficient. At the same time the Court recognizes that individuals, under the principle of legal certainty and predictability, are entitled, in principle, to rely on the wording of legislation. The Court has yet to develop a principled approach on how to deal with that conflict. Based on the experiences of English and German law with the reading up or down of legislation this article tries to identify the most convincing approach the CJEU might choose to adopt.
Conflict and Complementarity: EU Obligations, Member State Interests and Services of General Interest
Authors: Varju Marton
Published: April 2022

This article examines, through the example of the EU’s law and policy on Services on General Interest, the claim that the relationship between Union obligations and Member State interests can be conceived not only in terms of conflict, but also in terms of complementarity. It argues that even though the main purpose of EU law is to confine Member State conduct pursuing local interests needs, the same legal framework also recognizes the interconnectedness of Member State obligations and interests in the Union, which in certain policy areas, where the EU action is delimited by constitutional principles or by the lack of competences, may include an element of complementarity. In the legal and policy domain of Services of General Interest (SGI), the relevant policy documents, Article 14 TFEU and Protocol 26, and Article 106(2) TFEU confirm this essentially positive relationship between Union obligations and Member State interests.
Food Fraud: Protecting European Consumers Through Effective Deterrence
Authors: Jack Brian
Published: April 2022

The 2013 horsemeat scandal drew attention to the issue of food fraud in the European Union and highlighted the potential health and economic risks associated with such frauds. In the aftermath of the scandal, this article examines the effectiveness of the European Union ’ s legal framework in protecting against future frauds. It argues that this will only by achieved if this operates as a strong deterrent, which places potential fraudsters at significant risk of being apprehended. In the light of this, the article evaluates the measures in place to deter fraud in both food products manufactured within the European Union and in those imported from third countries. In doing so, it examines both the European Union ’ s legislative framework and the manner in which it has been implemented across Member States. Finally, the article concludes by examining Member State cooperation in addressing cross-border food fraud, such as the one perpetrated in the horsemeat scandal itself.
Requirements for Horizontal Cooperation Between Contracting Authorities
Authors: Pilving Ivo
Published: April 2022

The principal purpose of the article at hand is to elucidate the conditions on which Member States’ public authorities – in particular, local authorities – are allowed, without observing the principles and rules that emanate from the EU’s procurement directives, to enter into cooperation agreements for the performance of public tasks. Based on the principle of administrative autonomy of Member States, the relevant conditions were initially elaborated by the European Court of Justice in the Stadtreinigung Hamburg ruling and the ensuing case law. By and large, these conditions are reflected in the 2014 procurement directives. The article concludes that the new directives, in several regards, expand the possibilities of using cooperation agreements. The main principle that restricts recourse to such agreements is the prohibition against abusing the resulting joint ventures to engage in business activities. Several questions are as yet in dispute and may come to require settlement by way of preliminary rulings from the European Court of Justice.
Non-Removable Migrants in Europe: An Atypical Migration Status?
Authors: Queiroz Benedita Menezes
Published: April 2022

Non-removable migrants are migrants whose presence is acknowledged by national immigration authorities, however they are not returned despite the irregularity of their legal status. Such situations are revealing of the lack of effectiveness of EU’s return policy. The regulation of nonremovable migrants at the EU level raises several concerns and poses a number of questions in need of an urgent answer. One such question relates to the absence of a mechanism at the EU level to directly address the grey areas in EU law where the distinction between legality and illegality is unclear. In such circumstances the question arises as to whether an EU law protection status for migrants exists. Further, national responses to the same phenomenon vary widely from Member State to Member State, creating considerable indeterminacy. This article examines the crucial question of whether there is there a link between EU law and the creation of these legal grey areas and whether this link is strong enough to provide supranational remedies for this issue.
Private Actors, Public Authorities and the Relevance of Public Law in the Process of European Standardization
Authors: Eliantonio Mariolina
Published: April 2022

The reliance on private parties is a global tendency in modern regulation. One peculiar regulatory technique which foresees a core role for private parties is that of European standardization. The employment of standards for regulatory purposes delivers enormous benefits for the harmonization process and is today a key factor in the EU’s trade policy; however, the process of European standardization raises a number of concerns from a rule of law perspective, which are linked to ‘hybrid nature’ of the process, which foresees an intertwined public and private decision-making process. The aim of this contribution is to discuss the role of public law in the process of European standardization. After discussing the legal nature of European harmonized standards, the current application and potential applicability of general principles of administrative law is discussed and the necessity and availability of judicial control is examined.
Unpaid Tax Collectors: The Public Function of Private Parties in EU VAT
Authors: Nellen Frank J.G.
Published: April 2022

This contribution centres on the legal position of private parties (‘VAT entrepreneurs’) who are tasked with the collection of Value Added Tax (VAT) on behalf of the public authorities. The author discusses the main characteristics of the EU VAT system, and concludes that the VAT entrepreneurs do not have at their disposal any of the investigative competences that traditional fiscal public bodies such as the tax authorities enjoy (e.g. the possibility of instigating tax audits).As such, they are exposed to the risk of not having sufficient information to apply VAT to their transactions in line with the legal requirements – potentially leading to double taxation, non-taxation, and other adversities. The central research aim of this contribution is to establish whether VAT entrepreneurs should, with regard to their ‘public’ function as unpaid tax collectors, enjoy information procurement prerogatives similar to those enjoyed by conventional tax authorities. To that end, the author explores various options to reinforce the information procurement capabilities of VAT entrepreneurs.
What Is the European Union required to Respect under Article 4(2) TEU?: The Uniqueness Approach
Authors: Kaczorowska-Ireland Alina
Published: April 2022

The meaning of the ‘national identity’ clause set out in Article 4(2) TEU has been subject to various interpretations. This article proposes that a new approach, ‘the uniqueness approach’, be used to determine what exactly the EU is required to respect under Article 4(2) TEU. The uniqueness approach entails examination of the following three criteria in order to determine whether a particular feature of a Member State can be regarded as being part of the national identity of that Member State: first whether that feature is unique in that no other Member State exhibits such a feature, second, whether that feature can be seen to be part of that Member State’s constitutional and political structures, and third, whether that feature is fundamental to those structures. Once these criteria have been satisfied the proportionality review of that feature in terms of its compatibility with primary or secondary EU law should be done away with. Part I of this article explains the essential components of the uniqueness approach. Part II focuses on the question of who should be the final authority on the interpretation and application of Article 4(2) TEU.
Passing-On Unlawful Charges: Still No Small Matter
Authors: Monsen Erik , Strand Magnus
Published: April 2022

This contribution focuses on the so-called passing-on problem in actions for repayment of charges levied by Member States in breach of EU law. ‘Passing-on’ occurs when the economic burden of a charge levied from a business is passed on to burden that business’ customers, and possibly even further down the supply chain. The main issues at stake in the passing-on problem are whether actual or possible passing-on should be relevant to the amount repayable, and whether (and against whom) downstream claimants should be able to bring an action in respect of an economic burden passed on to them. Using examples from their home jurisdictions Sweden and Norway, the authors demonstrate that the passing-on problem is a multi-million euro issue which remains governed by diverging national laws, albeit subject to some restrictions developed by the Court of Justice in the absence of EU harmonization. With a view to safeguarding legal certainty, the effective protection of EU law rights, and the elimination of random discrepancies among national rules that are crucial to the proper functioning of the internal market, the authors call for EU harmonization of the legal issues triggered by passing-on. To that end, the authors present two alternative models for harmonization.
From Economic to Symbiotic Constitutionalism: A Belated Post-Lisbon, Post-Crisis Transformation?
Authors: Alexandris Polomarkakis Konstantinos
Published: April 2022

This article departs from the traditional portrayal of the relationship between economic and social constitutionalism as an antagonistic pair in a never-ending struggle. Instead, it propounds a more conciliating thesis in light of the post-Lisbon and ongoing developments at EU level, which have advanced social constitutionalism further. This line of argument is better explained by the concept of symbiotic constitutionalism, which aims at keeping its economic and social components in balance. Symbiotic constitutionalism gives effect to the social market economy paradigm introduced by the Treaty of Lisbon and acknowledges the incremental socialization of the Union, reawakened in the aftermath of the crisis. Finally, it bestows a constitutional telos upon the EU that is not detrimental towards its economic and social components. These are no longer pitted against each other, but understood as a complementary pair.
Austerity Measures at the European Court of Human Rights: Can the Court Establish a Minimum of Welfare Provisions?
Authors: Koufopoulos Dimitrios
Published: April 2022

The European Court of Human Rights has, in specific circumstances, interpreted the Convention in a manner that extends the protection provided under civil and political rights into the socioeconomic sphere. Additionally, in obiter statements, the Court has alluded to the possibility that ‘a wholly insufficient amount of pensions and other benefits’ would ‘in principle’ violate the Convention, namely Articles 2, 3 and 1 Protocol 1 ECHR. This statement also appears in recent admissibility decisions where applicants unsuccessfully challenged austerity measures adopted to give effect to conditionality agreements in states facing a debt crisis. The article examines whether with this statement the Court is suggesting that states must adhere to a minimum threshold of welfare protection, thereby protecting all individuals in their jurisdiction from the destitution that may arise from austerity policies. The article concludes that the Court’s approach in cases where welfare reductions are under scrutiny points more towards a comparative or relative approach, an approach that compares the position of the applicant to others within the respondent state, rather than one that determines a welfare minimum in absolute and objective terms. Nonetheless, the article argues that this statement on insufficiency of benefits has the potential of contributing to a more substantively fair distribution of the cost of austerity in states facing a debt crisis.

European Convention on Human Rights, welfare state, destitution, austerity.
The Plea of Illegality as a Pillar of the Incidental Review
Authors: Karayigit Mustafa T.
Published: April 2022

The plea of illegality as a limb of incidental review alongside the preliminary ruling procedure is examined in light of its raison d’être, nature, ratione materiae and personae scope and its interrelated characteristics with other remedies and procedures in the EU judicial system. This article considers the origin of anomalies in the inconsistent case law reaching different conclusions with regard to standing of different applicants on a selective basis in the transposition of national procedure of exception d’illegalité into the Rome Treaty with a general wording. It is argued that the broad interpretation of ratione personae scope of the procedure on the basis of the wording of Article 277 TFEU requires, in parallel, relaxation of the strict application of the admissibility requirements towards individual applications especially where irregularities might become apparent after the concrete application of the general act in order to prevent from carrying privileged or non-privileged status of applicants under the action for annulment to the plea of illegality.

Plea of Illegality, Incidental Review, Acts of General Application, Legal Certainty v Legality, Complementary or Alternative Remedy.
Interoperability of EU Information Systems: The Deathblow to the Rights to Privacy and Personal Data Protection of Third-Country Nationals?
Authors: Vavoula Niovi
Published: April 2022

This article examines key privacy and data protection concerns raised by the Regulations that establish a framework for interoperability between EU-wide centralized information systems processing personal data of third-country nationals (Schengen Information System II, Visa Information System, Eurodac, Entry/Exit System, European Travel Information and Authorization System, European Criminal Records Information System for third-country nationals). After a concise outline of the complex landscape within which these databases have been set up, emphasis is placed on the novelties and challenges that interoperability brings forward. In that regard, the articles evaluates the setting up of new databases, particularly the Biometric Matching Service and the Common Identity Repository – viewed through the Panopticon lens – the maximization of uses for which personal data may be destined, the revised rules on consultation of databases for law enforcement purposes, the challenge of ensuring data quality and the exercise of individual rights.

Interoperability, Privacy, Data Protection, Databases, SIS II, VIS, Eurodac, EES, ETIAS, ECRIS-TCN
‘Full Jurisdiction’ Under Article 6 ECHR: Hans Kelsen v. the Principle of Separation of Powers
Authors: Allena Miriam , Goisis Francesco
Published: April 2022

This article examines the ‘full jurisdiction’ requirement under Article 6 European Convention on Human Rights (ECHR) and its implementation within European Court of Human Rights (ECtHR) case law. It first analyses the theoretical foundations for ‘full jurisdiction’ which implies, in principle, a substitutive review of the merits of administrative decisions. It then focuses on the ECtHR case law, highlighting its ambivalence and inconsistencies: while the Court generally requires a substitutive review in criminal cases and in cases involving complex technical assessments, it tends to accept a less exacting standard of review in civil cases, especially when administrative discretionary choices or policy determinations are at issue. This article suggests that the ambivalence and inconsistencies within ECtHR case law can be explained in terms of the principle of separation of powers, which still underpins most legal systems of signatory states to the ECHR.

Art. 6 ECHR, fair trial, administrative procedures, full jurisdiction, principle of separation of powers.
Judges Sitting on the Warsaw-Budapest Express Train: The Independence of Polish and Hungarian Judges Before the CJEU
Authors: Bakó Beáta
Published: April 2022

This article is a contribution to the vital discussions about the rule of law in the EU, focusing on a specific and crucial element of the rule of law: judicial independence. Recently, the CJEU started to use Article 19 (1) of Treaty on European Union and Article 47 of the EU Charter of Fundamental Rights as a basis for enforcing judicial independence in the Member States in cases which do not contain any explicit cross-border elements. This is how some provisions of the heavily criticized reform of the Polish judiciary have already been declared as contrary to EU law by the CJEU. However, it is not only Poland where judges face difficulties. The main subject of this article is a Hungarian case: a preliminary reference issued by a Hungarian judge questioning his own independence. Judicial independence is not primarily threatened by explicit legal provisions but by the fact that the former head of the judiciary administration regularly misused her competence to invalidate judicial applications over several years. This article analyses the Hungarian preliminary reference and its chances in light of the CJEU’s recent, respective case law, especially the preliminary ruling concerning the Polish National Council of the Judiciary, the KRS (Krajowa Rada Sądownictwa) and the Disciplinary Chamber of the Supreme Court (joined cases C 585/18, C 624/18 and C 625/18).

Hungary, Poland, European Court of Justice, Article 19 (1) TEU, Article 47 EU Charter of Fundamental Rights, judicial independence, judicial councils, disciplinary chamber, right to an effective remedy, preliminary reference, infringement procedure, rule of law, C-564/19, joined cases C 585/18, C 624/18 and C 625/18