bluuebunny/crossref_metadata_2025 huggingface dataset:
The Thirteenth Company Law Directive and Competing Bids
Authors: Stuyck Jules , Kemperink Guus
Published: March 2022

The Thirteenth Company Law Directive (“the Directive”) seeks to create a level playing field within the Community so as to allow EU companies to freely establish themselves in the EU through the acquisition of control over EU listed companies. In this context, the Directive prohibits the board of the target company from taking any action that could result in the frustration of the bid without express shareholder consent (the neutrality rule). Nevertheless, the Directive allows the board of the target company to seek a competitive bidder (a white knight) to ward off a public bid. The Directive requires Member States to provide for legislation on competing bids. The question may be raised whether the discretion left to Member States in this regard will not bring into jeopardy the objectives of the Directive. The answer to this question is complex, more particularly in the light of the opt-outs that are incorporated in the Directive. As the Directive does not provide for a comprehensive harmonization, the article discusses to what extent the powers of Member States and the freedom of EU companies in the field of takeover law are affected by primary Community law. Finally the authors look at the remedies which are available for shareholders or bidders suffering a prejudice as a result of a corporate decision (in particular with respect to a competing bid) that complies with the national rules on takeover bids but is contrary to the Directive or the EC Treaty.
Expert evidence before the EC courts
Authors: Sibony Anne-Lise , de La Serre Eric Barbier
Published: March 2022

The EC courts are regularly asked to rule on complex scientific and technical matters, as illustrated by cases concerning the foot–and–mouth crisis or conglomerate effects in merger control. In order to apprehend these technical issues, the EC courts may, like any other court, rely on experts who are appointed either by the courts themselves or by the parties. However, the law on the use of expert evidence by the EC courts is unclear on many aspects. The purpose of this article is therefore to set out briefly the law on expert evidence, to explore how the EC courts use it and to assess whether improvements are desirable.

Section 2 of this article describes how the EC courts use “neutral” expert evidence (i.e., evidence obtained through an expert’s report commissioned by the court). An analysis of the case law reveals a paradox: while the status of neutral expert evidence is clearly defined by the rules of procedure governing the EC courts, such evidence is rarely used in practice. Section 2 therefore also endeavours to explain why the use of neutral expert evidence remains exceptional. Section 3 focuses on how the EC courts use “partisan” expert evidence (i.e., expert evidence that is voluntarily submitted by the parties). It shows that partisan expert evidence is the mirror image of neutral expert evidence: while its procedural status is unclear, it is widely used before the EC courts. Finally, in Section 4, it is argued that this situation is not wholly satisfactory. It is submitted inter alia that there is no convincing justification for systematic self–restraint over technical issues. Some changes are therefore explored which could be contemplated in order to improve the use of expert evidence by the EC courts.
Coming of age? Children’s rights in the European Union
Authors: Drywood Eleanor , Stalford Helen
Published: March 2022

Children’s rights issues have become an increasingly prominent aspect of EU law and policy making over the past decade. What has traditionally been characterized by scattered, ad hoc measures spanning a range of areas has more recently converged into a more direct, coherent and long term “Children’s Rights Strategy”. This culminated in the Commission’s 2006 Communication, “Towards an EU Strategy on the Rights of the Child”, which summarized the EU’s achievements in various areas of children’s rights to date, and sets out a series of short and long term goals to build on this success.

In an attempt to assess the value of this Strategy, this paper takes a detailed and critical look at the nature and scope of existing EU children’s rights provision. It questions the potential of the law to enhance children’s rights in any meaningful way in the face of limited legal competence, and points to currency of non–binding measures as a more effective way of mobilizing Member States to enhance children’s rights protection. In the process, the paper interrogates the ideological foundation of its children’s rights campaign and points to the need for additional procedural, budgetary and institutional changes to further this endeavour.
The Institutional Framework of the European System of Central Banks: Legal Issues in the Practice of the First Ten Years of its Existence
Authors: Steven Christine , Krauskopf Bernd
Published: March 2022

In this contribution, some legal issues are described that have played a role in the in the first ten years of the European System of Central Banks’ existence. While the institutional framework established in Maastricht for the introduction of the euro and the functioning of the European System of Central Banks has proven to be legally sound and forms an appropriate basis for a successful monetary policy in the euro area, several legal issues have arisen that have been controversially discussed. The following issues are explored: (1) the legal status of the European System of Central Banks/ European Central Bank in the Community/ potential future Union framework, (2) the competences of the decision-making bodies of the European Central Bank, (3) the allocation of tasks and competences to national central banks and the European Central Bank in the context of the so-called principle of decentralization, (4) the new voting regime of the Governing Council of the European Central Bank entailing a rotation of voting rights of the national central banks’ Governors and (5) the allocation of monetary income. The article concludes with the expectation that issues sur-rounding the allocation of tasks and competences within the System and forms of cooperation between central banks will become more and more important, further, that legal issues will need to be resolved concerning the involvement of the European System of Central Banks in the future framework for financial supervision in the European Union.
Legal Remedies Under the EC’s New Chemicals Legislation REACH: Testing a New Model of European Governance
Authors: Bronckers Marco , Van Gerven Yves
Published: March 2022

The REACH legislation constitutes a milestone for the European Union. It sets new standards for environmental law, which are becoming the benchmark for many countries and companies around the world. This new chemicals legislation also introduces institutional novelties at the European level. An independent European agency with decision-making powers has been created to administer this complex and highly technical legislation. Nevertheless, the European Commission and the Member States have maintained direct influence over the agency’s work, and participate in various roles in the implementation of REACH. These environmental and institutional innovations are not making the position of companies, who are the immediate addressees of the legislation, any easier. The present article analyses the decision-making processes under REACH, and inquires which legal remedies, if any, registering companies have in the event they encounter decisions that adversely affect them. It will be shown that companies are not always in an enviable position. They are paying a price, it seems, for the still evolving institutional architecture of the European Union. In other words, the deficiencies in legal protection we identify point to more fundamental problems surrounding the effectiveness and accountability of European agencies. Thus, this analysis can also serve as a case study to test new models of European governance. The article offer recommendations for improvement.
Regulating Credit Ratings in the European Union: A Critical First Assessment of Regulation 1060/2009 on Credit Rating Agencies
Authors: de Haan Jakob , Amtenbrink Fabian
Published: March 2022

In the wake of the global financial crisis, the European Parliament and Council Regulation 1060/2009 on Credit Rating Agencies has recently been published in the Official Journal of the European Union. With this Regulation the European Union takes a first step in addressing calls for a better regulation of the (global) financial markets including, among other things, overall improvements in the rating process of Credit Rating Agencies. According to some analysts, such as the Financial Stability Forum, poor credit assessments of complex structured credit products by Credit rating Agencies contributed to both the build-up and the unfolding of the financial crisis. This contribution offers a first critical comparative examination of Regulation 1060/2009 against the background of the previously applicable regime under the non-binding IOSCO Code of Conduct for Credit Rating Agencies. In doing so, answers are sought to the question whether and to what extent the introduction of the envisaged regulatory framework has the potential to result in a more effective and efficient oversight over the activities of Credit Rating Agencies in the European Union. A certain degree of scepticism may be called for, as the Regulation fails to address some important shortcomings of the present system, while the value added of the regulatory framework may not necessarily outweigh its risks. In this context also the implications for this Regulation of the recent proposals of the European Commission to create a European System of Financial Supervisors as part of an effort to strengthen financial supervision in Europe are addressed.
The Impact of the Definition of the Precautionary Principle in EU Food Law
Authors: Szajkowska Anna
Published: March 2022

Abstract

Regulation 178/2002 contains a definition of the precautionary principle. This is the first time a legal definition of the principle has been formulated for all EU food law. This fact, however, has been given hardly any attention in literature. It is all the more surprising because the lack of clear formulation of this concept was the main reason for criticism and controversy surrounding the principle. In the absence of a definition, the precautionary principle was a general notion, similar to the principles of subsidiarity or proportionality. Its scope was determined by decision makers and ultimately shaped by tendencies in case law. After codification, existing policy orientations and earlier case law may in some aspects differ from the legal definition. This article characterizes the main constituents of the precautionary principle and the risk analysis methodology established in Regulation 178/2002 and discusses examples illustrating how different provisions of the Regulation narrow the scope of the principle. It focuses on issues critical to its application: emergency measures, the so-called other legitimate factors, the burden of proof, and pre-market approval schemes.
From Rome to Lisbon: “Executive Federalism” in the (New) European Union
Authors: Schütze Robert
Published: March 2022

Is the European Union a legislative giant on clay feet? Is it true that the Union has, with some specific exceptions, no original competence to implement European law? This article analyses the structure of the Union’s “executive federalism” in three steps. After a comparative constitutional section on the centralized (American) and decentralized (German) enforcement systems of federal norms, the constitutional foundations of executive power in the European Union are explored. Will Article 291 TFEU provide a reformed textual base for the (new) Union’s executive powers? A third section then examines existing constitutional limits to the national (decentralized) and European (centralized) enforcement of European law. Beginning with the decentralized implementation mechanism, a first part of this section looks at the substantive, procedural and morphological limits on the national implementation of Union law. A second part of that section changes perspective as it investigates the constitutional limits on the executive powers of the Union in the form of, for example, the principle of subsidiarity. An excursus briefly analyses the phenomenon of “mixed administration” through a federal lens. And a conclusion finally argues that the Lisbon Treaty will remedy, to some extent, the lack of clear constitutional foundation of Union executive power.
Supranational corporate forms in the European Union: Prolegomena to a theory on supranational forms of association
Authors: Fleischer Holger
Published: March 2022

With the European Economic Interest Grouping, the European Company, the European Cooperative and the nascent European Private Company, the series of supranational corporate forms has now attained a scope which invites critical-comparative stock-taking. This article examines the foundations, the development and the architecture of the European Union’s own legal creations. Taking a comprehensive approach, it attempts to synthesize existent legal material and thus provide impetus for the elaboration of a theory on supranational corporate forms in Europe. The article looks at the regulatory instruments which the European legislature has used to overcome resistance by the Member States with regard to the development of supranational corporate statutes. It also assesses the EU-wide exchange of ideas and models in the context of the development of supranational corporate forms. Finally, attention is paid to the key characteristics and elements of supranational corporate forms, including: legal personality; corporate purpose and company object; cross-border involvement; registered and head offices and company members from third countries.
The enforcement of EU agreements: Bolstering the effectiveness of treaty law?
Authors: Mendez Mario
Published: March 2022

Many of the recent Court of Justice rulings concerning the relationship between the international legal order and the EU legal order have been on the receiving end of considerable criticism, with the EU level judicial commitment to international law being called into question. One dimension of that critique has concerned the treatment of EU concluded Agreements. An assessment of the extant EU level judicial enforcement practice provides evidence of the emergence of a twin-track approach. Member State level activity challenged for non-compliance with EU Agreements is generally subjected to the full force of those Agreements, whilst in contrast the tendency where EU level activity has been challenged before the Court of Justice appears to have become one of shielding such activity from meaningful review. Even if this trajectory were to be maintained, which remains to be seen, it can be argued that the medium of EU law nevertheless serves to bolster the effectiveness of this increasingly expanding body of Treaty law. For EU law has placed at the disposal of litigants, including the Commission via infringement proceedings, the most powerful of tools for policing the compliance of currently twenty-seven Member States with this growing number of agreements.
The ECJ and ultra vires action: A conceptual analysis
Authors: Craig Paul
Published: March 2022

There has been debate as to whether the EU remains within the ambit of the competence assigned to it, and this concern has been voiced in relation to both EU legislative and judicial action. The Kompetenz-Kompetenz discourse is indeed premised on the fact that the boundary line as to what is intra or ultra vires the EU can be contestable, thereby rendering the issue of who has the last word all the more important. This article begins by specifying in greater detail the ways in which EU legislative or judicial action might be felt to transgress the limits of its assigned power. The analysis then shifts to the demands of coherence when assessing such claims, which is relevant albeit in different ways for the EU courts, academic commentators and national courts. This is followed by examination of some controversial areas, where it is felt that the EU may have strayed beyond its assigned power. The final section of the article examines some of the new challenges posed by the Lisbon Treaty.
A legal-institutional perspective on the European External Action Service
Authors: Van Vooren Bart
Published: March 2022

This article provides a legal perspective on the new European External Action Service (EEAS), and positions this new body in the reshuffled institutional balance of EU external relations. To that end, the paper examines the EEAS's legal nature as compared to that of Council, Commission, their support services and EU agencies, and seeks to define the EEAS's sui generis status in the EU institutional set-up. Some relevant questions are: What are the implications of its absence of legal personality, what does its "functional autonomy" from the Council and Commission imply, what are its formal powers - if any, and could the EEAS be drawn into proceedings before the Court of Justice? In answering those questions, this article then examines to what extent the legal-institutional choices on the structure of the EU External Action Service reflects the age-old tension entrenched in EU external relations law: the EU's nature as an internally diverse entity, which seeks to present a coherent Union voice to the world.
Mission accomplished? EU Justice and Home Affairs law after the Treaty of Lisbon
Authors: Peers Steve
Published: March 2022

The legal framework regarding EU Justice and Home Affairs Law was changed fundamentally by the Treaty of Lisbon, so that the usual rules on decision-making, jurisdiction of the Court of Justice, legal instruments and legal effect are now largely applied to this area of law.

The various issues falling within the scope of JHA law are now set out in Title V of Part Three of the Treaty on the Functioning of the European Union, which is divided into five chapters, beginning with general provisions, followed by chapters on immigration and asylum, civil law, criminal law and policing law. This paper examines the application of the new rules in practice, in particular the impact of extending QMV; the extended legislative powers of the European Parliament; the role of the Commission as compared to the Member States; and the role of national parliaments. It concludes that this area of EU law is now fully part of the mainstream, with the exception of the special opt-outs for three Member States. However, it now follows that some of the general problems of EU law apply to JHA legislation, and there are emergent problems ensuring that JHA legislation is applied in practice by Member States, in particular from the perspective of the ECHR.
Age discrimination before the ECJ  conceptual and theoretical issues
Authors: Schiek Dagmar
Published: March 2022

Although only addressed by EU law from 2000, age discrimination has been the theme of quite a few cases before the Court of Justice, with a high proportion decided by the Grand Chamber recently. This is due to the conceptual and theoretical challenges that a prohibition to use age as differentiating factor poses. After all, age has been an important stratifier used to synchronize life courses through welfare State regimes in Europe. Partly due to these traditions, there are stereotypes associated with old age, and young age, that in turn lead to disadvantage in employment. For the same reason, age discrimination frequently intersects with discrimination on other grounds, such as sex, race or disability. EU legislation on age discrimination has sought to accommodate the traditional role of age in employment policy by allowing wider justifications than for other forms of discrimination. This leads to contradictions within the larger field of discrimination law, which may even threaten to dilute its efficiency. This article analyses how recent case law of the Court of Justice, and in particular its Grand Chamber, deals with the theoretical challenges posed by these conflicting demands on age discrimination and on discrimination law at large.
Just a little sunshine in the rain: The 2010 case law of the European Court of Justice on access to documents
Authors: Leino Päivi
Published: March 2022

In the summer of 2010, the Grand Chamber of the European Court of Justice handed down three significant rulings concerning the interpretation of some of the key principles of Regulation 1049/2001 on public access to documents held by the EU institutions- Case C-139/07 P, Commission v. Technische Glaswerke Ilmenau , C-28/08 P, Commission v. Bavarian Lager, Joined Cases C-514/07 P, 528/07 P & 532/07 P, Sweden v. API and Commission . The current analysis examines the state of openness in the EU after the three rulings, and places it in the context of the ongoing revision of the Regulation. In establishing that the Commission was right in arguing for "general presumptions" for secrecy, which exempt the institutions from examining the contents of documents individually in order to evaluate whether granting access to their contents cause harm to protected interests, and agreeing to a unduly wide interpretation of "privacy" the Court gave its blessing to a significant part of the Commission agenda to limit public access in the Union. The interpretation adopted by the Court gives serious reason for the legislature to amend the Regulation so as to guarantee that the Union is run as openly as possible.
Exploring the boundaries of positive action under EU law: A search for conceptual clarity
Authors: Bell Mark , Waddington Lisa
Published: March 2022

Positive action is a central element of EU anti-discrimination legislation. It allows measures to be taken to further the realization of full equality in practice by redressing past or present disadvantages experienced by groups such as women, ethnic minorities, etc. With the expansion of EU anti-discrimination law, additional methods of promoting equality have been introduced, such as reasonable accommodation duties, mainstreaming and equality data collection. This has given rise to some terminological and conceptual confusion as to the distinction between these measures and positive action, including within court judgments. This article argues that positive action can be separated from other techniques for promoting equality and that maintaining this distinction is important. In particular, there are a specific set of requirements for positive action measures to be lawful, including respect for the principle of proportionality. Applying these requirements in an over-inclusive manner could have the effect of imposing unnecessary restrictions, as well as generating confusion for organizations and individuals with regard to what positive action entails.
Just a little bit of mixity? The EUs role in the field of international investment protection law
Authors: Bischoff Jan Asmus
Published: March 2022

With the entry into force of the Lisbon Treaty, the Common Commercial Policy (CCP) has been extended to foreign direct investment (FDI). However, the scope of these (exclusive) competences under the CCP is limited and thus does not pertain to all issues governed by contemporary bilateral investment treaties (BITs). Rather, the competences for such BITs are mixed. Therefore, future agreements will have to be concluded by the EU and the its Member States together unless the EU is prepared to exclude the protection of certain investments from its agenda. But mixed agreements on investment protection cause complications concerning their conclusion and implementation. Until a satisfying EU investment regime is set up, investments by nationals of the EU Member States will have to be protected by the Member States' BITs. The Member States of the EU have concluded a large number of bilateral and also multilateral investment agreements governing the protection of investments made. Nevertheless, the existing Member States' BITs are affected by the transfer of exclusive competences for FDI to the EU. Generally, the Member States will have to terminate these agreements. To avoid such severe consequences, the European Commission proposed a Regulation establishing a transitional regime that allows the Member States to maintain their existing BITs concluded with third countries or even to conclude new BITs. Such a transitional regime is essential for the protection of investments by EU nationals. However, the Regulation Proposal adopted by the Commission is badly drafted and can only be considered a first step towards such an instrument.
From Airtours to Ryanair: Is the more economic approach to EU merger law really about more economics?
Authors: Witt Anne C.
Published: March 2022

In 2002, the General Court famously annulled three merger prohibitions under the EC Merger Regulation because of serious errors of assessment.  Amongst other things, it held that the Commission had ignored economic theory.  Consequently, the Commission announced radical changes to its approach to ensure that future assessments would be based on rigorous economic and econometric analysis.  This contribution examines the changes introduced by the Commission's "more economic approach" to EU merger review.  An analysis of the Commission's merger guidelines and decisions reveals that the core of the new approach by no means lies in the use of econometric analyses and complex theories of microeconomics.  Its essence rather lies in aligning the purpose of EU merger law with the consumer welfare aim of modern industrial economics.  On the basis of this new legal objective, the Commission reinterpreted the substantive test of EU merger law as containing an unwritten consumer harm requirement and reconsidered the role of efficiency effects.  The Commission's new concept of harm is not entirely compatible with the case law of the Court of Justice, which continues to adhere to its "less economic" concepts of the 1970s.  Moreover, the Commission's attempts to reconcile the two worlds have resulted in theories of harm that are ambiguous and therefore detrimental to legal certainty.
Reverse SolangeProtecting the essence of fundamental rights against EU Member States
Authors: von Bogdandy Armin , Smrkolj Maja , Kottmann Matthias , Antpöhler Carlino , Dickschen Johanna , Hentrei Simon
Published: March 2022

This article presents an innovative approach to EU fundamental rights protection against the Member States. It draws on recent studies which have shown that the fundamental rights situation in a number of Member States is an increasing cause for concern, particularly with respect to media freedom. However, while the Union intensely scrutinizes the fundamental rights situations in candidate countries, there is scant action so far in case of serious problems in the Member States. Although the latter are comprehensively committed to "respect for human rights" according to Art 2 TEU and subject to the enforcement mechanism foreseen by Art 7 TEU this has proven to be of very limited practical impact. Therefore, the article suggests opening up "respect for human rights" for individual legal actions via Union citizenship. Its starting point is the recent jurisprudential development of the "substance" of Union citizenship in Ruiz Zambrano. This substance can and should basically be defined with reference to the essence of fundamental rights enshrined in Article 2 TEU. To put this into practice the article suggests a reverse Solange-doctrine, applied by the ECJ towards the Member States: outside the scope of the EU Charter of Fundamental Rights the Member States remain autonomous in fundamental rights protection as long as it can be presumed that they ensure the essence of fundamental rights enshrined in Article 2 TEU. However, should this presumption be rebutted, the "substance" of Union citizenship - within the meaning of Ruiz Zambrano - comes into play. On this basis Union citizens can seek redress before national courts and the ECJ.
Approximating a workable compromise on access to official documents: The 2011 developments in the European courts
Authors: Adamski Dariusz
Published: March 2022

Despite the fact that the European Union has had specific rules on access to official documents for more than ten years now, their boundaries are still unclear as to why and when the institutions may refuse access. In many respects the lingering doubts have been elicited by the ECJ itself, as the Court often hesitates whether to pursue a restrictive interpretation of the exceptions or whether to protect discretionary powers of the institutions.

This contribution describes how the most recent case law of the Luxembourg courts meanders between the two options. Furthermore, it critically analyses both the origins and the results of this process, by concentrating on paradoxes stemming from two radically different judicial approaches applied to the same area of law.

Inconsistencies as to review standards in respect of access cases are all the more puzzling considering that decisions of the ECJ ignore - and often contradict - the fundamental freedom of expression, as protected by the European Convention on Human Rights. After analysing the issue, the author proposes modifications to the judicial approach of the ECJ. They are aimed at enhancing congruity with the Strasbourg jurisprudence and at improving the balance between diverging interests involved.
The semi-permanent European Council Presidency: Some reflections on the law and early practice
Authors: de Waele Henri , Broeksteeg Hansko
Published: March 2022

One of the most salient innovations provided for by the Treaty of Lisbon has been the creation of a "semi-permanent" or "stable" Presidency of the European Council. This paper offers a legal appraisal of the Union's system of government in the post-Lisbon setting, focused on the role and powers of the refurbished European Council Presidency. It combines an unravelling of the black-letter competences with some extensive analysis of their exercise in practice, aiming to scrutinize the internal dynamics of the office, as well as its interaction with other actors and bodies. It begins by sketching the general background to the new office, taking a mildly unorthodox view of its origin, coming into being and popular terminology. This is followed by an analysis of the modalities for the President's election and dismissal, and an investigation of how the appointment procedure was put into operation for the first time. It then proceeds to gauge his competences, sketching their formal purview as well as (the limits to) their actual exercise. Finally, it subjects the inter-institutional linkages to review, in an attempt to assess how other actors measure up to the new office. In combination, these reflections provide the reader with a picture of the President's position within the wider constitutional framework.
The Consumer Rights Directive: How and why a quest for coherence has (largely) failed
Authors: Weatherill Stephen
Published: March 2022

Directive 2011/83 on consumer rights is a case of misleading advertising. Despite its grand title, it is little more than an up-dating of the Directives on doorstep and distant selling which also re-casts them as measures of maximum, not minimum, harmonization. The real interest lies in why the Directive is such a mouse. And this story tells of political resistance to the Commission's original plan to convert also the far more significant Directives on unfair terms and consumer sales to the maximum model. This vertical shift in regulatory responsibility, driven by an aggressive rhetoric of improving "coherence" in harmonized EU contract law, was firmly rejected, with the result that the finally adopted text is stripped of any depth of ambition. Consequently Directive 2011/83 on consumer rights is not without interest for its choice of detailed regulatory technique, explored in this paper, which focuses on pre-contractual information disclosure, post-agreement rights of withdrawal and limited aspects of contractual performance. But much more so, it reveals the contested heart of the EU's internal market project - coherence achieved by suppression of national regulatory competence (unity) or preservation of regulatory experimentation and local autonomy (diversity). The making of Directive 2011/83 demonstrates political readiness to shield the latter from the Commission's current predilection for the former.
Legal developments in the Economic and Monetary Union during the debt crisis: The mechanisms of financial assistance
Authors: Merino Alberto de Gregorio
Published: March 2022

The Union and its Member States have given a double response to the sovereign debt crisis: the creation of mechanisms of assistance and the strengthening of economic governance. Both responses have contributed to substantially redesign the architecture of the economic and monetary union. This article focuses on the mechanisms of assistance - most of which have been agreed intergovernmentally outside the EU Treaties -, describing them and examining their most significant legal implications. These are their compatibility with the no bail-out clause, the limited revision of the Treaties to include new Article 136(3) TFEU, the use of Article 122(2) TFEU as the only legal basis under the Treaties to provide financial assistance, the relationship between the intergovernmental mechanisms of assistance and the law of the Union and the judgment of 7 September 2011 of the German Constitutional Court on the compatibility of mechanisms of assistance with the German Constitution. Mechanisms of assistance are presented as part of an unavoidable process of further integration of the Member States that share a common good, the euro, a process that might lead to fundamental changes in the EU Treaties, including the creation of a European Treasury, that would go hand by hand with a fiscal federation where budgetary sovereignty of euro area Member States would yield to supranational control.
Europes (misguided) constitution of economic prosperity
Authors: Adamski Dariusz
Published: March 2022

The article discusses the institutional framework for three important economic policies - macroeconomic governance, cohesion policy and innovation policy - and examines their relationship with the generally inauspicious economic outlook of the European Union. It explains in particular how the newly established excessive imbalance procedure has been practicallydisabled by political forces, why the regions benefitting from the cohesion policy for a long time have seriously contributed to the ongoing economic crisis, and why the EU innovation policy finds it very difficult to support a harmonious development of the Union.The article also pays attention to thosedevelopmentswhich are particularly important for economic growth in the EU but still remain outside the mainstream economic policies. Necessary adjustments establishing a more credible framework of economic prosperity - the contribution argues - are primarily hindered by domestic politics and democratic dynamics rather than by Treaty constraints.Economic prospects of the EU will remain gloomy unless this political constitution is properly altered.
Optional law for firms and consumers: An economic analysis of opting into the Common European Sales Law
Authors: Gomez Fernando , Ganuza Juan José
Published: March 2022

The European Commission has launched the Regulation Proposal on a Common European

Sales Law as an optional instrument for European firms and consumers. Several critical opinions have been raised against the optional nature, characterizing it as an instrument for social dumping (i. e. lowering consumer protection standards, given that no set of rules with higher levels of protection would ever be chosen by firms), as depriving consumers of any meaningful choice, and emphasizing its futility. In this paper we present a simple model showing how these critiques present theoretical flaws, even if one does not rely on the efficiency gains that increasing cross border trade may bring in terms of having more efficient firms serving consumers in other national markets. The role of verification or compliance costs, and of the impact of legal diversity on firms' operating costs is crucial for understanding the effects of an optional instrument, and may make high levels of consumer protection, and consumer choice implementable. We also characterize how different levels of the standard may lead to complete replacement of national standards and to

the joint use of European and national standards.
Regulatory techniques in consumer protection: A critique of European consumer contract law
Authors: Ben-Shahar Omri , Bar-Gill Oren
Published: March 2022

This Article classifies the consumer protection techniques that European contract law employs into four categories: Mandatory arrangements; disclosure; regulation of entry to and exit from contract; and pro-buyer default rules and contract interpretation. It argues that these techniques are far less likely to succeed than advocates,  including the European Commission, believe, and they may bring about unintended consequences and hurt consumers. The techniques and their limits are illustrated through a study of proposed Common European Sales Law (CESL). The Article argues that the ambitious pursuit of consumer protection goals is also likely to interfere with the other main goal of the European contract law: harmonizing the laws of member states, encouraging cross border trade, and improving consumer' access to markets.
Unweaving the CESL: Legal-economic reason and institutional imagination in European contract law
Authors: Mak Chantal
Published: March 2022

From a law-and-economics perspective, the European Commission's proposal for the introduction of an optional Common European Sales Law (CESL) has been criticized for overregulating consumer sales law in Europe and for being likely to yield more costs than benefits. In defence of CESL, it is submitted here that its optional nature may mitigate the risk of overregulation and provide an opportunity for firms to tailor their activities to consumer preferences in different markets. Furthermore, although the introduction of an optional instrument may increase transaction costs, it does not seem to be excluded that the benefits of increased cross-border trade may (on a long-term basis) outweigh these costs. Finally, in order to evaluate the institutional choices underlying the proposed rules of CESL, and other instruments of European contract law, it is suggested that the further analysis of these rules should take into account the legal-political as well as the legal-economic backdrop to this field of law.
Reflections on the role of the Court of Justice as the motor of European integration: Legal limits to judicial lawmaking
Authors: Horsley Thomas
Published: March 2022

This article argues for a new approach to the assessment of the Court of Justice's contribution to EU integration. Responding to weaknesses identified with the classic "activism" versus "restraint" scholarship on the Court, it constructs a more robust theoretical framework to critique the legitimacy of judicial lawmaking. This framework, inspired by political science scholarship on the Court, positions the ECJ as an institutional actor, engaged alongside the EU legislature in the development of EU law through judicial interpretation. The institutional actor thesis is employed to explore the restraining impact of Treaty provisions on the ECJ's freedom to act as lawmaker. The article identifies a range of Treaty provisions that were conceived as limits on the pace and depth of EU integration and reframes these as "legal limits" to ECJ lawmaking. It then reflects on the challenges, opportunities and broader implications associated with operationalizing these provisions as sources of normative restraint on the ECJ's interpretative competence.
Proving public interest: The growing impact of evidence in free movement case law
Authors: Shuibhne Niamh Nic , Maci Marsela
Published: March 2022

When national measures restrict free movement rights, Member States canargue that their actions are,nevertheless, justifiable and proportionate. But how do they actually demonstrate this? This article explores the standard that Member States must satisfy to provetheir public interest claims successfully. It will be argued that a critical information gap on what the Court of Justice expects defendant States to establish has been narrowed through a more concerted focus on proof in recent case law; but that significant issues still demand further attention. While an evolving guidance framework can be pieced together by extracting key principles from relevant - especially more recent - case law, it is questionable whether this is sufficient for national courts and lawyers. The fact that more attention isbeing placed on proof and evidence in recent case law, however, also raises questions about the value or even propriety of applying a veneer of empiricism over the many complexities involved in adjudicating on public interest choices. As a case study, the article discusses the difficulty of unpicking economic arguments from public interest claims. It is suggested, overall, thatknowing an appropriate standard of proof has to be reached is one thing; but knowing what it is and how to reach it is something else entirely.
The emergence of a parallel system of social security coordination
Authors: Rennuy Nicolas
Published: March 2022

The ECJ grants migrant citizens an increasingly wide access to the social security schemes of Member States lacking competence. This line of case law is conceptualized as creating a parallel system of social security coordination. Its foundations lie in the doctrine of pre-emption and the case law on Union citizenship, both of which remodel the constitutional relationship between the free movement provisions of the TFEU on the one hand, and, on the other, secondary EU legislation (in particular Regulations 1408/71 and 883/2004) and national law. The system adds a layer of social security protection for migrants under the legislation of Member States with which they have a privileged connection. As a corollary, it imposes additional duties upon these States, which until recently were entirely free of social security responsibilities. The uncertain position of the employer generates a tension between the freedom to provide services and the free movement of workers.
State aid is falling down, falling down: An analysis of the case law on the notion of aid
Authors: Biondi Andrea
Published: March 2022

The article looks at the definition of State aid, in the light of  recent case law of the EU Courts. There are claims that this case law shows serious shortcomings, is too complex, and reveals a rift between the General Court and the ECJ. In particular the interpretation of the  substantive elements forming the notion of aid  such 'granted by the state or through state resources' and 'selectivity' is far from clear. The question arises whether State aid control is then possible at all, given the underlying political objectives. Despite some shortcomings the Courts  are somehow still managing  to maintain a formal approach, in order to meet predictability requirements and legal certainty  and at the same allowing  a certain degree of flexibility. The case law reaffirms that the interpretation of the notion of aid still aims to preserve free movement and fair competition between States, and to ensure that Member States  comply with EU law in terms of transparent economic governance. The efforts by the Courts and the European Institutions, in particular the Commission, in developing consensual rules on policy may still be the best we have so far.
A Memorandum of Misunderstanding  The doomed road of the European Stability Mechanism and a possible way out: Enhanced cooperation
Authors: Schwarz Michael
Published: March 2022

The European Stability Mechanism (ESM) stands pars pro toto for how the EU and the Member States have confronted what allegedly started out as a sovereign debt crisis and has turned into an existential crisis of the EU. Attempts to get Europe back on track rely too heavily on technocratic governance and abandon some of the EU's core values. This paper proposes an alternative, more legitimate route. It argues that ESM-like financial assistance should be integrated into the framework of the EU's legal order, by using the legal instrument of enhanced cooperation under Article 20 TEU.A critical analysis is given of economic governance under the ESM, addressing and assessing its shortcomings in terms of human rights protection, the rule of law ideal and lack of input legitimacy. The feasibility of using enhanced cooperation for the ESM is examined.
Europes copyright law decade: Recent case law of the European Court of Justice and policy perspectives
Authors: Leistner Matthias
Published: March 2022

The article provides an overview of the most important developments in the field of EU copyright law in the period 2009-2013. It points to the active role the ECJ has taken in interpreting the EU copyright directives, in particular the Information Society Directive.

The article discusses the ECJ's case law covering the condition for copyright protection, the exclusive economic exploitation rights, including a full treatment of the Used Soft case, exceptions to copyright and in particular the case law on fair compensation for private copying. It argues that the ECJ's case law is consistently rooted in the objectives of primary law, notwithstanding certain weaknesses in the interpretation of substantive copyright law in detail. A brief outline of the most important legislative activities since 2009 puts the Court's case law in the overall context of the development of EU copyright in the last 5 years
The preclusion of direct effect in the recently concluded EU free trade agreements
Authors: Semertzi Aliki
Published: March 2022

The EU's FTA network is steadily expanding. All recently concluded FTAs adopt a WTO-like dispute settlement mechanism, and incorporate to varying degrees WTO provisions. Even more remarkably, EU FTAs explicitly restrain the direct effect of their provisions. This comes in contrast to the case law of the ECJ so far, which invariably granted direct effect to provisions of EU's bilateral agreements. The article aims to analyse this shift, which is observed across the spectrum of EU's trade agreements, from development instruments and neighbourhood agreements to pure Global Europe FTAs. It employs their two common features, namely the WTO-like dispute settlement mechanism and WTO incorporation, in order to determine which of the two led decisively to the restriction of their domestic effects. It contends that it is the inextricable FTA/WTO intertwinement that hardly leaves any margin for the EU FTAs to have more far-reaching legal effects than those already accepted for the WTO agreements in the ECJ case law.
The new EU extraterritoriality
Authors: Scott Joanne
Published: March 2022

The established triggers for application of EU law - conduct, nationality and presence - are being supplemented by novel "extraterritorial" triggers that cause EU legislation to apply to conduct that occurs abroad. This is apparent in the area of financial regulation. EU legislation that relies on such triggers is neither self-evidently territorial nor extraterritorial, and it remains unclear whether it is consistent with the territorial principle of jurisdiction. Nonetheless, this legislation also usually includes "safety valves" in a bid to prevent jurisdictional over-reach and to facilitate cooperation between States. These safety valves should be viewed as of significance in assessing the legality of EU legislation that incorporates novel "extraterritorial" triggers.