bluuebunny/crossref_metadata_2025 huggingface dataset:
Akrich: A Clear Delimitation without Limits
Authors: Schiltz Christophe
Published: February 2017

In Akrich, the Court operated a clear delimitation of competences between Member State and Community level while at the same time protecting the fundamental rights of Union citizens, even in the absence of a deterrence to the exercise of their free movement rights. It is argued that it thereby contributes to the strengthening of Union citizenship rights. The article analyzes the relationship of the decision with existing case law, its impact on the fundamental rights protection in the Union and on reverse discrimination, as well as the implications for Member State competences. In conclusion, it will be argued that Akrich should be seen as a welcome development in the field of citizenship. It is however tainted by legal uncertainty surrounding its scope, which will have to be lifted in order for the decision to be an effective tool in the citizenship box.
Public Interest Litigation before the European Court of Justice
Authors: De Schutter Olivier
Published: February 2017

This article explores the question of the role of associations before the European Court of Justice, especially in the context of actions for annulment, as currently regulated by Article 230 al. 4 EC. Although associational standing is in principle excluded under that provision, associations acting in the public interest may, under certain well-specified conditions, intervene before the Court of First Instance or the European Court of Justice, thus contributing – to the extent that these jurisdictions are competent – to the fully deliberative character of the judicial process, and ensuring that the Courts take into account the collective interests such associations seek to represent. Moreover, the current case-law of the European Courts considers that the right of certain organisations to be parties to administrative proceedings may justify according those organisations a right to file an action for the annulment of the act adopted on the basis of those proceedings, which may constitute an important incentive for the creation of associations and their active implication in the political or administrative decision-making process. By examining these different possibilities and how they relate to one another, this article contributes to our understanding of the prospects of public interest litigation before the European Court of Justice.
(AB)Using European Citizenship? EU Retired Migrants and the Exercise of Healthcare Rights
Authors: Coldron Keleigh , Ackers Louise
Published: February 2017

Drawing on two empirical projects, this article reveals the different ways EU retired migrants are exercising their healthcare rights on the ground. It describes the legal framework underpinning EU citizens' rights to access healthcare in host Member States, and moves on to identify three main ways in which retirement migrants are doing this: (1) purchasing and using private healthcare; (2) legitimately using public healthcare services in the host region; and (3) manipulating their residency status to (ab)use public healthcare in both the home and host regions. Respondents rarely exercised their rights in the same way every time. Rather, their decisions regarding healthcare were shaped by time, place and the specific medical episode they were presented with. The article attempts to illuminate the relationship between formal rights and individual agency and highlight the consequences of these particular kinds of rights' engagement for the individual migrants themselves and the sending and receiving regions. The article seeks to contribute to the debate about the future direction of European citizenship, the sustainability of public healthcare systems and, more specifically, the implications of growing numbers of retirees on the move.
New Governance Responses to Healthcare Migration in the EU: The EU Guidelines on Block Purchasing
Authors: Hervey Tamara K.
Published: February 2017

This article focuses on a single case of a ‘new governance’ response to healthcare migration in the European Union: the EU Guidelines on block purchasing of cross-border healthcare 2005. Using this focus, the article highlights the differences between legal doctrinal analysis and other analytical or critical frameworks as applied to this new phenomenon of ‘governance’ in the European Union. It notes the predominant concerns of a ‘legal’ and a ‘governance’ framework for analysis. It then considers the basis of the Guidelines, the bodies concerned with their enforcement, the effects of the Guidelines, the relationship between law and implementation and the desirability of litigation, through each of the two analytical frameworks employed. Given the synergy between legal and new governance approaches to solving problems relating to healthcare migration in the EU, the article concludes that a synergistic framework for analysis, bringing together both ‘legal’ and ‘governance’ concerns, offers the most appropriate holistic approach for EU law and policy studies of this nature.
Free Movement of Workers, EU Citizenship and Access to Social Advantages
Authors: Cousins Mel
Published: February 2017

This article discusses recent developments in the European Court of Justice's approach to freedom of movement of workers and how that has been influenced by EU provisions on citizenship. It examines, firstly, the Court's interpretation of the circumstances in which a worker who has changed his or her residence (without altering the place of work) could rely on Article 39 EC (which concerns the rights of migrant workers). Secondly, it examines how the expansion of rights in this area is creating certain tensions between the legal provisions concerning the right to ‘social advantages' – which include many social security benefits – and rights under the detailed system of social security co-ordination set out in Regulation 1408/71. In particular, this has created disputes concerning the ‘export’ of social benefits. In conclusion we discuss some of the implications of this case law for the Court's approach to free movement of citizens and workers.
Negotiating [In the Shadow of a] European Private Law
Authors: Verbeke Alain
Published: February 2017

Clear and predictable rules act as a shadow in which parties can negotiate. European Private Law cannot offer such a shadow because its rules are too diffuse and incoherent. Nor can national laws provide this in a cross-border context. The European Commission's initiative to review the consumer acquis and create a more consistent body of rules through a CFR must therefore be supported. However, to the extent that the CFR goes beyond the revision of the consumer acquis and envisages the creation of a European contract law, it is argued that a fundamental step is lacking. Before drafting technical rules, an open, transparent and political dialogue is needed about the values underpinning such a contract law. This dialogue can benefit from a diversity of views, including more radical welfarist ideas. Negotiation theory shows how to set up a more open process of developing a European contract law. As in any negotiation, several tensions must be managed: between distribution and creation of value, empathy and assertiveness and between the interests of the European constituency and its political agents. New processes of empowered deliberative democracy with a consensus model of decision making may inspire a means for handling this much needed dialogue on European contract law.
Nanomedicine and the EU: Some Legal, Ethical and Regulatory Challenges
Authors: McHale Jean V.
Published: February 2017

The development of nanomedicine has the potential to revolutionise care and treatment of patients. However the rise of this new technology has been subject to considerable controversy. The EU itself while promoting the development of nanomedicine and nanotechnology has become increasingly concerned to address some of the reservations which have been expressed regarding this technology. This paper explores what legal, ethical and regulatory challenges are posed by nanomedicine, how the EU has engaged with these to date and how EU law and policy in this area may develop in the future.
Comparative Notes on Injunction and Wrongful Risk-Taking
Authors: Van Boom Willem H.
Published: February 2017

This article looks into the role of injunctive relief in tort law. More specifically, it focuses on the role of injunction in cases concerning wrongful risk-taking behaviour (as opposed to intentional or deliberate wrongdoing). Although there seems to be little practical experience with injunctive relief in cases of wrongful risk-taking behaviour, both the dogmatic and practical implications of allowing or rejecting such claims are formidable. By granting petitions for injunctive relief, courts effectively convert ex post claims for compensation into primary duties to act or omit. By contrast, rejecting injunctive relief renders tort law rules into mere taxes on wrongful behaviour. Which of these two routes is chosen by courts and legislators and how forceful are the arguments used to support either choice?

The aim of this paper is twofold: firstly, to gain a better understanding of the French, German and English legal systems with respect to the role of injunction in tort law and secondly, by drawing on the comparative analysis, to identify the implications of allowing and rejecting injunctive relief for the understanding of tort law. If indeed the role of injunctive relief in cases of wrongful risk-taking behaviour sheds light on tort law's ends, then perhaps a threefold conception of tort law is in order.
Reasonable Accommodation for Religious Minorities: A Promising Concept for European Antidiscrimination Law?
Authors: Bribosia Emmanuelle , Ringelheim Julie , Rorive Isabelle
Published: February 2017

In both the United States and Canada, the concept of reasonable accommodation first emerged in equality law as a means of handling religious diversity. It was then applied to other grounds of discrimination, most notably disability. In the European Union, the evolution of antidiscrimination law is following a different path: a duty of reasonable accommodation was for the first time established by the 2000 Employment Equality Directive (or Directive 2000/78/EC) but only with respect to disability. Nonetheless, the question whether a right to reasonable accommodation can be derived from the prohibition of discrimination based on religion laid down by the same Directive, or, alternatively, whether such right should be recognized in future European legislation is becoming increasingly salient.
The Outer Limits of the Prohibition of Discrimination on Grounds of Nationality: A Look through the Lens of Union Citizenship
Authors: van der Mei Anne Pieter
Published: February 2017

This contribution analyses the outer limits of the EU prohibition of discrimination on the grounds of nationality. The first part considers the case law of the Court of Justice on the substantive scope of the prohibition in cross-border situations. It demonstrates that the mere possession of Union citizenship plus the presence of a cross-border element suffices for equality of treatment in relation to any substantive right or benefit to the exclusion of arguably none. The right to equal treatment regardless of nationality is no longer functionally related to freedom of movement but a basic ingredient of Union citizenship. This, however, as the second part of the contribution argues, does not imply that the second outer limit, id est the non-application of the ban on nationality discrimination in internal situations, has lost legal significance. Union citizenship, and more generally EU law, do not ensure abolition of so-called ‘reverse discrimination.’
Depillarization and the Shaping of AFSJ
Authors: Salminen Janne
Published: February 2017

This article concerns the Treaty of Lisbon and its impact on the development of the Area of Freedom, Security and Justice (AFSJ). The background of the study is the discussion of the so-called pillar structure of the European Union, its dismantling and the features of the constitution of the EU Justice and Home Affairs (JHA), which have legitimized its characterization as a special field of integration within the architecture of the Union. The depillarization is considered to be one of the main achievements of the Treaty of Lisbon. For this reason, the focus of the article is on the special features of integration in the AFSJ. It is noted that it would indeed be meaningless to characterize AFSJ as a separate field of integration. However, there still are remains of the features which made it possible to consider JHA and the third pillar as different. Pillars continue their life in certain aspects. The AFSJ mode of integration is still based on a rationale of cooperation. Certain possibilities for the differentiation indicate the same attitude. Another important point in the same direction is the status of the individual: for this part the constitution seems not to be primarily rights-based.
The European Union and the United Nations Convention on the Rights of Persons with Disabilities: A Story of Exclusive and Shared Competences
Authors: Waddington Lisa
Published: February 2017

The signature and conclusion of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) by the European Community (now European Union) marks a significant step forward in the protection of human rights by the EU. Whilst the EU has become a party to international treaties in the past, this is the first such accession to a human rights treaty. As a consequence, the conclusion of the CRPD by the EU raises many interesting questions, and the path to be followed by the EU in identifying which Convention obligations it is bound by, or should act on, and which obligations fall primarily within the responsibility of the Member States, is, as yet, untrod. This article is a first attempt to examine some of those issues and, specifically, to reflect on what factors will determine whether EU action to implement the Convention would be appropriate in those many areas that fall within the shared competence of the EU and the Member States.
Translation in the EU: Language and Law in the EU's Judicial Labyrinth
Authors: Künnecke Martina
Published: February 2017

The decline, even the ‘end’, of comparative law in the 21st century has recently been predicted.1 However, this statement overlooks the vital and continuing role of comparative law in the complex task of legal translation in an expanding EU.

To ensure the protection of language rights and transparency, the Court of Justice of the European Union requires translations of national and EU law on a daily basis. The complex task of the translation of law in the Court is carried out by highly qualified Lawyer-Linguists, experts in law and language, who enter the service through rigorous selection processes.2

The methodology employed by these specialists, however, remains to a large extent a ‘black box’ and traditional tenets of legal translation theory appear to be of limited application.3 This article aims to shed light on this black box with a focus on the rarely discussed use of comparative law in the translation process in the Court, in particular in preliminary ruling procedures.4
The Contribution of the European Courts to the Common European Asylum System and its Ongoing Recast Process
Authors: Ippolito Francesca
Published: February 2017

A ‘Common European Asylum System’ (CEAS) based on the full and inclusive application of the Geneva Convention has been developed according to the principles and aims of the Tampere European Council in October 1999 (further elaborated by The Hague Programme adopted in November 2004). However, significant discrepancies and differences between Member States' asylum law and policy still exist, and it has yet to be effectively realized. A recast of the adopted series of important legislative measures harmonizing common minimum standards in the area of asylum is now ongoing. This article will highlight the progressive role played by the Court of Justice of the European Union together with the European Court of Human Rights in the ongoing recast process, particularly in terms of ensuring a higher standard of protection of basic human rights.
European Union Fundamental Rights and Member States Action in EU Criminal Law
Authors: Marguery Tony
Published: February 2017

This article tries to pin down the conditions under which Member States act within the scope of application of EU law when the Union has exercised its competence in the criminal ‘Area of Freedom, Security and Justice’. With the Treaty of Lisbon, Member States have transferred important powers to the EU in the field of judicial cooperation in criminal matters, which has become more supranational. One witnesses the emergence of a European criminal justice. In the meantime, EU fundamental rights have developed, in particular with the Charter of Fundamental Rights of the EU, which has become a clearer and binding source of law. EU fundamental rights have to be combined with multiple other sources of fundamental rights, both at international and national level. On one hand, the application of EU fundamental rights may provide a minimum protection of citizens in criminal justice, but on the other hand, it may also affect the powers of Member States to maintain high standards of protection. However, applying EU fundamental rights to Member States' actions is subject to the condition that Member States are acting within the scope of application of EU law. This article shows that there is no clear-cut criterion to establish when Member States are acting within the field of EU criminal law for the purpose of applying EU fundamental rights.
The Evolution of the EU Economic Governance since the Treaty of Maastricht: An Unfinished Task
Authors: de Streel Alexandre
Published: February 2017

This paper reviews the evolution of the Economic and Monetary Union from its inception in 1992 with the Treaty of Maastricht to the most recent reforms adopted in 2013 to respond to the eurocrisis. The paper describes the evolution of the four pillars of economic governance: the surveillance and the correction of fiscal imbalances between the Member States which are mainly based on the revised Stability and Growth Pact, the surveillance and the correction of macroeconomic imbalances between the Member States, the coordination of national economic and social policies which are now based on the Europe 2020 Strategy for Growth and Jobs, and the financial solidarity between Member States which is currently mainly based on the European Stability Mechanism. The paper also deals with the institutional implications of EMU evolution with the emergence of an institutional landscape for the euro area. Finally, the paper analyses the implications for the transformation of EU law in terms of sources of law with extensive use of international treaties, recommendations and sui generis contracts between the EU and its Member States, in terms of enforcement mechanisms relying on self-enforcement and peer pressure, and in terms of a regulatory model. The paper concludes with grim perspectives that the recent reforms may not be sufficient to make the euro sustainable.
Three Shifts in EU Competition Policy: Towards Standards, Decentralization, Settlements
Authors: Colomo Pablo Ibáñez
Published: February 2017

EU competition policy has undergone fundamental transformations over the past 20 years. The changes observed are substantive, procedural and institutional in nature. Two decades ago, EU competition policy was enforced centrally by the Commission in a way that is probably best described as traditional administrative law-making. Policy was formulated by means of formal decisions adopted in individual cases and by legislative instruments regulating firm behaviour in detail. Following the adoption of Regulation 1/2003, and as a result of the use of economic analysis, the enforcement landscape is more diverse and decentralized. National competition authorities have emerged as key players in the field (a trend that is also observed in other fields of EU economic regulation, including energy and electronic communications). Individual decisions are now crucially complemented by soft law instruments, the use of which started in the 1990s and which now permeate the whole discipline, and by negotiated procedures.
European Criminal Law as an Exercise in EU ‘Experimental’ Constitutional Law
Authors: Herlin-Karnell Ester
Published: February 2017

This contribution explores the evolution of European criminal law through the prism of EU constitutional law and its experimental elements. The paper charts the history of European criminal law by reflecting on the question of to what degree criminal law as an EU policy stands out from the other corners of EU law policies. The paper examines to what extent use of EU law sources in the domain of criminal law has been used in an innovative way and how, as well as to what extent, it differs from mainstream EU law. Furthermore, the paper discusses the issue of enforcement and how the enterprise of EU criminal law could possibly be modernized from the perspective of fundamental rights protection. The paper concludes by looking at the incoming tide of legislative proposals in the area of EU criminal law and how it all adds up to an increased understanding of the AFSJ.
Governing towards Renewable Energy in the EU: Competences, Instruments, and Procedures
Authors: Peeters Marjan
Published: February 2017

This contribution maps new questions and explores potential problems in EU renewable energy law, focusing on competences, regulatory instruments and administrative procedures. The transition towards renewable energy concerns a major transformation of society, which cannot be done on a voluntary basis, and for which law, with all its complexities, has to play a crucial role. Within the EU, the need to establish renewable energy is a legally binding task for which a special legislative framework has been adopted on the basis of the environmental competence. In order to reach the 20% mark for renewable energy by 2020, dramatic action has to be conducted by Member States, and several overlaps between the EU regulatory climate and energy instruments complicate the implementation of the legislative framework further. EU renewable energy law is likely to be a tempestuous field of law with an increasing number of court cases, particularly concerning actions brought by citizens against renewable energy projects. Finally, for the period after 2020, there will be a discussion of which TFEU article could serve as the correct legal basis for any further renewable energy commitments, particularly in view of the special (but limited) energy competence introduced by the Lisbon Treaty.
Meroni Circumvented? Article 114 TFEU and EU Regulatory Agencies
Authors: Van Cleynenbreugel Pieter
Published: February 2017

This paper conceptualizes the somewhat neglected constitutional and constitutive roles of Article 114 TFEU in the establishment and functioning of EU integrated market supervision mechanisms. Relying on a virtually unlimited interpretation of that provision by the Court of Justice, EU institutions and Member States have been able to design an institutional ‘supranational operational support’ narrative that allowed for the expansion of supranational agencies as extensions of national supervisory bodies operating in an EU integrated administration framework.

This paper submits that this interpretation of Article 114 TFEU incorporates a template within which a nascent ius commune underlying the organization and operationalization of EU internal market supervision mechanisms can effectively take shape. That template allows for circumvention of some infamous agency delegation limits and grants Member States and national authorities a more direct role in a supranational system of integrated administration. In doing so however, new constitutional problems are created that have not been adequately addressed by the post-Lisbon Treaty framework. This paper identifies those problems and their impact on the emergence of integrated EU market supervision structures.
From National Banking Supervision to a Centralized Model of Prudential Supervision in Europe?
Authors: Schiavo Gianni Lo
Published: February 2017

The Single Supervisory Mechanism is an evolutionary reform for the supervision of credit institutions in Europe. It establishes a centralized supervision for credit institutions under the mandate of the European Central Bank (ECB). The founding Regulation, adopted in October 2013, provides for new and extensive tasks for the ECB and powers of supervision over credit institutions established participating Member States. While many challenges are open to debate, this paper contends that the SSM will provide the essential tools to shape a new Stability Union where institutionalization, centralization, integration, and top-down supervision take place. However, it is still essential that the ECB exercises its mandate correctly and is not reluctant as to the exercise of its powers. This article will examine some critical SSM regulatory features. These suggest that the SSM will be an essential structure to create a new Stability Union. In particular, the use of the enabling clause (Article 127(6) TFEU), allocation of responsibilities between the ECB and national authorities, and the emerging role of euro area law are key elements showing that Europe is converging towards a new model of European financial stability.
The European Union as a ‘3-D’ Constitutional Space
Authors: Simoncini Andrea
Published: February 2017

This article advances the hypothesis that the European constitution has to be considered a ‘space’: that in addition to the ‘classical’ judicial and political dimensions, there is a third constitutional dimension – the civic. A distinctive feature of European political thought and constitutional practice is that public authority has always been coupled with an autonomous ‘civil sphere’ and that social formations and their rights, as individuals, pre-existed the nation-state. The totalitarian ‘trauma’ between the two world wars, and the decisive role political parties played in it, produced the idea, rooted in the very origin of the European Treaties, that representative democracy must be complemented by social or corporative representation/participation. This article analyses European primary law, finding two subsequent ‘constitutionalization waves’. This leads to the conclusion that there is in fact a ‘corpus juris' (concerning the ‘social dialogue’, the European Economic and Social Committee (EESC), the Commission's consultations, the European Citizen's Initiative (ECI), lobbying) expressing this third civic dimension of the European constitution. This conclusion does not claim that each of the three dimensions is currently equally equipped and effective: it ranges from a highly developed legal/judicial dimension, to a weaker-but-growing institutional/political dimension, and eventually to an embryonic-almost-non-existent social/civic dimension.
EU Directives and Multi-Level Governance – Can Lessons Be Drawn from Cooperative Federalism?
Authors: Vandamme Thomas
Published: February 2017

In this contribution, an attempt will be made to draw lines between the concepts of (cooperative) federalism, multi-level governance (MLG) and the European directive as a multi-tiered instrument. Can directives be regarded as federal by nature? And if so, what normative conclusions might one draw therefrom in terms of their conceptual shape? Although the concept of federalism has the downside of being less inclusive than MLG (for example, non-state actors and civil society), the argument will be made that the ‘federal label’ is not the final destination, but rather a possible bridge or ‘missing link’ between the EU directive and its potential for MLG. Stronger guarantees for more political decision-taking on at least two levels of government could strengthen the directive's function as a ‘hub’ for a constitutionally more ‘adult’ MLG. These stronger guarantees could be forged through a more galvanized application of the principle of proportionality of which the EU directives would ideally be an embodiment. Achieving that will however not be an easy exercise, as one can learn from the experiences in Germany with the Rahmengesetz, an instrument designed to embody proportionality ‘German style’.
Helping Loose Ends Meet? The Judicial Acknowledgement of Soft Law as a Tool of Multi-Level Governance
Authors: Ştefan Oana
Published: February 2017

In the established multi-level governance system of the European Union, the Court of Justice was instrumental in framing a supranational constitution. Over recent years, a vast variety of soft law and soft methods of governance were put in place, ‘loosely’ binding together the different layers of EU governance. While the EU Courts sometimes engage with such instruments and methods, they fail to acknowledge important consequences that soft law can have on the rights and obligations of individuals. This approach can have a negative impact on the justiciability of soft law, creating a way for a vast body of EU instruments to escape judicial control. Furthermore, in the absence of judicial recognition, soft law fails to accomplish some of its key objectives, such as fostering legal certainty, transparency, and the consistent application of rules in the EU multi-level governance system.
The Price of EU Citizenship
Authors: Carrera Sergio
Published: February 2017

How much does European citizenship cost in the EU? This was the question that has raised so much controversy over the Maltese citizenship-for-sale programme. The outright selling of Maltese nationality to rich foreigners led to unprecedented responses by the European Parliament and European Commission. This paper examines the affair and its relevance for current and future configurations of citizenship of the EU. It studies the extent to which Member States are still free to lay down the grounds for the acquisition and loss of nationality without any EU supervision and accountability. It is argued that the EU's intervention in the Maltese citizenship-for-sale affair constitutes a legal precedent for assessing the lawfulness of passport-for-sale programmes in other EU Member States. The affair has also revealed the increasing relevance of a set of European and international legal principles limiting Member States' discretion over citizenship matters and providing a supranational constellation of accountability venues scrutinizing the impact of their decisions over citizenship. The Maltese citizenship-for-sale affair has placed at the forefront the EU general principle of sincere cooperation in nationality matters. Member States' actions in the citizenship domain cannot negatively affect in substance the concept and freedoms of European citizenship.
Oral Hearings before the European Court of Justice
Authors: Rosas Allan
Published: February 2017

This article focuses on the organization of oral hearings at the European Court of Justice. It deals with both the decision to hold or not to hold an oral hearing, as a complement to the written part of the procedure, and the actual conduct of such hearings. This is done by drawing on the modifications introduced by the recast of the Rules of Procedure of the Court of Justice undertaken in 2012 and the Practice Directions to Parties adopted by the Court in 2013 as well as actual practice following the entry into force of the new Rules of Procedure. The article also draws upon the experience of the present author as a judge at the Court since 2002 and chairman of the Rules of Procedure Committee of the Court since 2009. What role does the oral hearing play in the overall handling of cases and what have been the most recent developments in this regard? Some attention will also be paid to fundamental rights concerns, notably the right to a fair and public hearing and its relevance for the organization and conduct of hearings. The article will not address the broader notion of ‘oral part of the procedure’ to the extent that it covers the Opinion of the Advocate General as well. Nor shall I consider in any detail the organization of oral hearings by the other Union Courts, that is, the General Court and the Civil Service Tribunal, where due to the nature of proceedings the oral hearing plays an even more important part than before the Court of Justice.
Law as a Complex Adaptive System
Authors: Lierman Steven
Published: February 2017

The notion of legal pluralism indicates that the national and subnational levels coexist with legal systems being developed at the European and the international level. This phenomenon of increased complexity gives rise to adapted learning methods and the equilibrium is to a certain extent restored by convergence. With regard to the vertical convergence, that is, convergence between the national legal orders and the supranational legal orders, the first part of the article recalls the development of the EU-principle of indirect effect into a true principle of harmonious interpretation, which applies on every level, for all actors and in every direction. With regard to horizontal convergence, the article explores the limits of the traditional dichotomy between public and private law. In addition, two principles of law are discussed in order to illustrate the close interweaving between legal orders and fields of law: the principle of proportionality and the principle of equality before public burdens.
Advisory Opinions, Preliminary Rulings and the New Protocol No. 16 to the European Convention of Human Rights
Authors: Gerards Janneke
Published: February 2017

Through the introduction of an advisory opinions procedure, Protocol No. 16 to the European Convention of Human Rights (the Convention) aims to strengthen the interaction between national courts and the European Court of Human Rights (hereafter the Court), as well as to alleviate the Court's caseload. National courts can present questions to the Court on important aspects of the interpretation of the Convention, on which the Court will give a non-binding opinion. This article critically examines the potential of the procedure established by Protocol No. 16 in the light of its objectives. To this end, a comparison with the preliminary reference procedure in EU law is made to assess the procedure's prospective effects and its impact. It is concluded that it is not to be expected that the advisory opinions procedure will bring much added value, partly as a result of the different legal structure of the procedure of Protocol No. 16 when compared to the preliminary reference procedure in EU law, and partly because of the particular context in which the procedure is introduced.
Free Movement of EU Citizens
Authors: Verschueren Herwig
Published: February 2017

This article analyses the ambiguity within the Union's policy goals of free movement of Union citizens and the combating of poverty and social exclusion. The former is viewed as a fundamental right with constitutional status, whereas the latter is viewed as a central policy objective of the EU. Yet, the right to free movement of economically inactive persons and to equal treatment with the host state's citizens with regard to social benefits is subject to the economically inactive persons having sufficient resources. As a result, in practice the right to free movement could very well become impossible for indigent people. This article examines the legal context offered by the Treaty, secondary legislation (Directive 2004/38 and Regulation 883/2004) and the Court of Justice's case law. It finds that the EU has problems in reconciling the right to free movement and the policy objectives of fighting poverty and social exclusion. To conclude, the article presents some ideas and proposals on how this ambiguity and these contradictions could be solved so as to guarantee the right to free movement for all, including the poor.
Gendering Economic and Financial Governance through Positive Action Measures
Authors: Masselot Annick , Maymont Anthony
Published: February 2017

The number of female directors on the boards of large listed companies in the European Union (EU) is very low and progress towards equal participation and representation of women and men on company boards has been extremely slow. In the aftermath of the recent global financial crisis, the lack of gender diversity on corporate boards has become less justifiable. In response to the clear need for change, a number of European countries and the EU have adopted or proposed the introduction of various positive action measures designed to tackle the gender imbalance on corporate boards. This article compares and contrasts the methods used in France and the EU to achieve a better gender balance on company boards. It questions the applicability of the French measures within the EU and suggests that the French approach is compatible with EU law and is also wide reaching in its coverage of executive as well as non-executive directors. It arguably underpins a shift from gender equality to a broader approach of democratic legitimacy for entities that affect citizens' life. As such, the French approach goes further than the proposed EU directive and it has the potential to be used as a model within the EU.
The Constitutionalization of Equality within the EU Legal Order
Authors: O'Cinneide Colm
Published: February 2017

The principle of equal treatment has become constitutionalized within the framework of the EU legal order. However, its scope and substance remain uncertain, its impact is confined to the restricted horizons of EU law, and its normative foundations are contested. This article explores these issues by focusing on a number of judgments by the Court of Justice of the European Union (CJEU) in cases involving claims of discrimination based on the ground of sexual orientation. These judgments illustrate both the positive impact and also the uncertain scope and substance of the principle of equal treatment as constitutionalized within EU law. It concludes by highlighting the need for the CJEU's equality jurisprudence to engage to a greater degree with human dignity and other values, in order to give greater definition and clarity to the concept of equal treatment.
Regulatory Scrutiny of Subsidiarity and Proportionality
Authors: Meuwese Anne , Gomtsian Suren
Published: February 2017

As the monitoring of the principles of subsidiarity and proportionality is mostly left up to the EU institutions, internal quality control bodies could play an important role in developing tests and standards which represent part of ‘subsidiarity and proportionality in action.’ In this context, the Impact Assessment Board (Board), established within the European Commission in 2006 and recently renamed ‘Regulatory Scrutiny Board’ (to review impact assessments) holds a key position. This paper presents an analysis of opinions from the Board from 2010 and 2011 as an alternative jurisprudential source regarding subsidiarity and proportionality. The analysis tells us something about the ‘everyday meaning’ of these principles, but also about the way the Board functions as an ‘in-house’ regulatory review board.
Reforming Intra-EU Investment Protection
Authors: Moskvan Dominik
Published: February 2017

This article scrutinizes the positions of stakeholders in the light of the arguments of incompatibility of the intra-EU BITs with EU law. Whereas the interest of the Commission and some EU Member States was to protect the legal certainty of EU law and budgetary expenditures, the selective short-term interest of deliberately invoking compliance with EU law conflicts with the long-term interests of the Union, the EU Member States, and investors, including enterprises wholly-owned by the national governments of EU Member State. While waiting for the Commission to come up with a solution to the issue of incompatibility, EU Member States might find themselves exposed to a substantial degree of moral hazard since Member States' courts should set aside the enforcement of arbitral awards that ignore the primacy of EU law. It is suggested that the tension between different interests may impact the competitiveness of the investment environment of the EU as a whole.
The Use of ECtHR Case Law by the Court of Justice after Lisbon
Authors: Krommendijk Jasper
Published: February 2017

This article examines how and why the Court of Justice examines and cites the case law of the ECtHR after the entry into force of the Charter of Fundamental Rights in 2009. The Court's practice will be sketched on the basis of 20 interviews with judges, référendaires and Advocates General at the Court of Justice. It will be shown that the Court of Justice has examined and cited the Strasbourg case law less frequently and extensively. Several reasons will be given for this, primarily on the basis of the observations of the interviewees as to their readiness to cite the Strasbourg case law. This includes a growing awareness that both courts are different as well as strategic reasons related to the wish to develop an autonomous interpretation of the Charter.
Constitutional Pluralism as Mutually Assured Discretion
Authors: Goldmann Matthias
Published: February 2017

This article analyses the standard of review applied by the Court of Justice in the Gauweiler case concerning the European Central Bank's (ECB) Outright Monetary Transaction (OMT) policy. It argues that the Court's focus on rationality and proportionality checks bears great potential for constitutional pluralism in the European Union. Both standards are relatively vague. This allows each actor to use these standards to keep other actors in check. Their particular virtue lies in the fact that they induce self-restraint in other actors because their vagueness leaves them in the dark about possible reactions and because all actors have an interest in keeping the Union intact, or at least in avoiding responsibility for causing serious cracks. Questions of hierarchy and the ultimate say can therefore remain undecided. The Federal Constitutional Court pursued exactly this strategy in its Solange judgments and the Honeywell decision. If it continues following this line of reasoning, the Gauweiler case would lead to a more robust form of constitutional pluralism in the EU. Under this framework, the ECB would have the possibility to decide, in the ambit of its discretionary powers, whether to participate in a sovereign debt restructuring.
Accepting the Judgments of the Court of Justice of the EU as Authoritative
Authors: Charleton Peter , Cox Angelina
Published: February 2017

This article discusses the contrasting constitutional models as between Ireland and Germany of accession to the European Union. Sovereign states are entitled to share a currency pursuant to treaty. Whether that potential has been lost under the European Treaties by reason of the transfer of sovereignty is the subject of decisions of the Court of justice of the European Union (Court of Justice) and the Supreme Court of Ireland. By transferring some aspect of sovereignty pursuant to international treaty, certainty of law and the principle of sovereign state equality require adherence to rulings of tribunals set up under those arrangements. In the case of the European Union, that is the Court of Justice.
The Evolving EU Anti-Money Laundering Regime
Authors: Mitsilegas Valsamis , Vavoula Niovi
Published: February 2017

Over the past twenty-five years, the European Union has developed a far-reaching legal regime aimed at countering money laundering. The evolution of this regime has been linked inextricably with the parallel development of global standards in the field, most notably by the Financial Action Task Force on Money Laundering (FATF). This article will critically evaluate the content of EU anti-money laundering law, by putting forward a comprehensive typology of the EU anti-money laundering regime as outlined in the successive EU Anti-Money Laundering Directives and consisting of three elements: the criminalization of money laundering and terrorist finance; the prevention of money laundering via the imposition of a series of duties on the private sector; and the focus on financial intelligence, via the establishment and co-operation of financial intelligence units responsible for receiving and analysing reports received from the private sector. The article will examine the evolution of EU law as regards all elements of anti-money laundering law, by focusing in particular on the changes brought forward by the post-Lisbon Fourth Money Laundering Directive. The article will cast light on the influence of the FATF in shaping these standards and will highlight the impact of the ever expanding EU anti-money laundering legal framework on fundamental rights and the rule of law.
Towards an Internal Hierarchy of Values in the EU Legal Order
Authors: Petkova Bilyana
Published: February 2017

This article compares American constitutional law and practice on the First Amendment freedom of speech vis-à-vis data privacy in the US to the right to freedom of expression vis-à-vis data privacy rights under European law. The purpose of the comparison is to sketch the current state of an internal hierarchy of values for each of the two (EU and US) legal orders. Whereas in the US commercial interests seem to have taken precedence in the balance between freedom of speech and data privacy, the EU is at a crossroads. As will be laid out in this article the Court of Justice of the European Union (CJEU) has started to show preference for data privacy rights over commercial interests through the cases Google Spain, Digital Rights Ireland and Schrems. The idea that both freedom of expression and data privacy have a political and an autonomy aspect is developed. The main task of the CJEU in the balancing exercise is not to prioritize one right over the other. The CJEU can rather justify when one aspect of a right might under the circumstances of a particular case be deemed more important than the aspect of another right. Following this notion further, when the right to access to documents is at stake, the autonomy aspect of data privacy rights needs to give way to political values such as accountability and self-government protected by the right to access to documents. I suggest a calibrated proportionality test for the CJEU modelled on the US tiers of scrutiny.