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In recent years, the US and the Netherlands have been on opposing sides of the spectrum regarding climate litigation. Dutch courts, in several revolutionary climate cases, have been an arena of societal change, whilst climate claims in the US have been largely unsuccessful. In a way this difference seems strange, because the US judiciary has the power of constitutional review, whilst the Dutch judiciary does not. Against that background, this paper extensively compares the doctrines of judicial competence regarding political questions in both jurisdictions. As a comparative framework, this paper uses three judicial phases, namely: the institutional phase, the substantial phase, and the remedial phase. Climate litigation reveals that the Dutch doctrine of judicial competence is focused on the substantial and remedial phases, which has allowed it more freedom in reviewing climate litigation. On the other hand, climate litigation reveals that the US doctrine of judicial competence is focused on a strict institutional phase, dominated by the Political Question Doctrine (PQD). The main contribution of this paper to the constitutional debate is that climate litigation reveals fundamental differences in doctrines of judicial competence. This is not only an important takeaway for future climate litigation, but also, in terms of the Radbruch formula, for other potential gaps between the executive and justice. [ABSTRACT FROM AUTHOR]

The paper explores the evolution of private powers in the digital landscape, developing a quadrangular systematisation of such a phenomenon based on four main aspects: space, values, (private) actors, and (digital) constitutional remedies. Taking a trans‐Atlantic approach, the paper shows how these categories, typical of constitutionalism, apply to the context of the Internet and of new digital technologies both in the United States and in Europe. On the one hand, the United States has up to now maintained the supremacy of the notorious Section 230 of the Communications Decency Act. On the other hand, European legislation has undergone a significant change, moving from a phase of digital liberalism, of which the 2000 E‐Commerce Directive is the emblem, towards a new era of digital constitutionalism, passing through the age of judicial activism of European courts. In this sense, Europe has increasingly attempted to introduce limits to private (digital) powers, with a view to better protect and enforce (also horizontally) users' fundamental rights. Additionally, the evolution of digital constitutionalism, from a vertical‐sectoral approach to a horizontal and procedure‐based one, significantly showcased by the recent Digital Services Package, is underscored, signalling the recent movement of the EU into its second phase of digital constitutionalism. In this respect, the paper argues that the great benefit of stressing the procedural dimension, which may be defined as a European application of "due (data) process" to the relationship between individuals and private powers, is that it is potentially able to help consolidate a (necessary) trans‐Atlantic bridge. [ABSTRACT FROM AUTHOR]

China's approach to ISDS reform is widely perceived as undecided and ambiguous. This paper provides the first detailed analysis of China's submission to the UNITRAL Working Group III and situates China's approach in the context of global dialogue of ISDS reform and competing reform proposals. The paper shows that China's open, flexible, and evolving approach to ISDS reform could be better understood by a contextual evaluation of the pertinent factors which have contributed to its formation. Moreover, this paper explains why China did not sign up to the EU's investment court system (ICS) proposal in the EU‐China Comprehensive Agreement on Investment (CAI). Lastly, the paper argues that China should reconsider its attitude towards the ICS in the CAI context and that the EU's recent suggestion that the envisaged multilateral investment court may adopt an 'open architecture' is likely to enhance its appeal to China. [ABSTRACT FROM AUTHOR]

This paper raises the question as to whether a theory of justice exists in EU law. The focus is on justice as a system. The assumption is that the independence of institutional actors involved in the administration of criminal justice (mainly judges and prosecutors) vis‐à‐vis each other, and other State powers, is key to that system achieving justice as a value. Against the benchmark of judicial and prosecutorial independence developed in European law, the paper assesses the role for independence in investigative, prosecutorial and adjudicating functions as it emerges from the current state of EU criminal law. The conclusions reveal that the EU's idea of justice remains underdeveloped, and that there is a need for systemic coherence to better protect the rule of law and enhance the legitimacy of EU criminal law. [ABSTRACT FROM AUTHOR]

While Artificial Intelligence (AI) is becoming a key element in supporting the migration and border management policies of the European Union and its Member States, so far, AI‐based migration technologies have been tested and implemented with limited public scrutiny. In this context, the EU AI Act holds the promise of a regulation in line with the protection of fundamental rights and the rule of law. While Member States are bound by existing EU legislation when deploying AI, the Act represents the first attempt to regulate this technology in migration and border management. This paper examines the evolution of the Act throughout the negotiation process and its potential to hold actors involved in AI‐driven migration technology accountable, thereby promoting the rule of law. It argues that while the regulation offers promising and important elements, a closer examination brings to light important concerns about its ability to ensure accountability. [ABSTRACT FROM AUTHOR]

Consultation is a crucial tool for better regulation, as well as being essential for the accountability and legitimacy of decision‐makers. The European minimum requirements for consultation are fundamental conditions in order to attain these goals. However, they may not be enough, and consultation should also be designed to neutralise or reveal cognitive limitations, both of decision‐makers as well as of stakeholders. This paper claims that enriching the better regulation approach with cognitive insights can in fact increase consultation effectiveness and thus become a critical piece in the puzzle to improve the legitimacy of the European Commission. Moreover, it suggests some techniques to tackle this complexity, which need to be further assessed by ad hoc experiments. [ABSTRACT FROM AUTHOR]

This article looks at three main issues raised by the PNR scheme: (i) the base‐rate fallacy and its effect on false positives; (ii) built‐in biases; and (iii) opacity and unchallengeability of the decisions generated, and at whether the Court has properly addressed them. It concludes that the AG and the Court failed to address the evidentiary issues including the base‐rate fallacy—a lethal defect. It also finds that neither the Member States nor the Commission have even tried to assess whether the operation of the PNR Directive has resulted in discriminatory outputs or outcomes; and that the Court should have demanded that they produce serious, verifiable data on this, including on whether the PNR system has led in practice to discrimination. But it also finds that the AG and the Court provided important guidance on the third issue, in that they made clear that the use of unexplainable and hence unreviewable and unchallengeable "black box" machine‐learning artificial intelligence (ML/AI) systems violates the very essence of the right to an effective remedy. This means that any EU Member State that still uses such opaque ML/AI systems in its PNR screening will be in violation of the law. [ABSTRACT FROM AUTHOR]

The concept of 'Regulation by Information' is changing. Past such approaches consisted mainly of signalling regulatory intent and indirectly guiding how and when regulatory discretion should be exercised. We suggest that this conceptual understanding must be reviewed in view of developing regulatory technologies (RegTech) allowing for a far more proactive integration of data flows into regulatory processes. RegTech is thereby changing conditions of Regulation by Information. This article uses financial regulation as an information‐intensive and highly regulated policy field to illustrate and analyse RegTech‐induced changes to conditions of Regulation by Information. It finds that the rise of near real‐time information flows between market participants and regulatory bodies and, consequently, the need for near real‐time regulatory responses on the European Union level have led to an ever higher degree of integration of regulatory software into market data flows. Regulatory software now increasingly shapes the definitions of reporting standards and formats, which in turn shape regulatory choices by influencing information flows. The article shows how this development will likely be used in other data‐ and information‐dense policy areas outside of financial markets. Critics of Regulation by Information argue that it can lead to a lack of accountability and transparency, increasing the democratic deficit within the European Union. This article scrutinises both continuities and changes in the role and significance of legal principles and procedures used in regulatory oversight, following the evolution of this new form of Regulation by Information within the EU. [ABSTRACT FROM AUTHOR]

The article explores the difficult balance of interests in the Italian field of seabed mining. In recent years, the regions, bearers of the local communities' social demands, claimed greater attention to sustainability, while the State almost always privileged productivity. The Constitutional Court always took an attitude of self‐restraint, basically adhering to State reasons. Given this starting point, it is not entirely certain that the European Court of Justice's 2022 ruling, which included the environmental interest alongside economic concerns, will bring concrete developments. Indeed, although environmental protection falls under constitutional principles from 2022, there is a complex framework of interests involved in the sector, from which political power suffers above all. Consequently, the reception of social demands makes the effort of only the Court insufficient. The Italian case thus illustrates some of the constraints that can weigh on courts, especially constitutional courts, in their ability to constitute an arena of societal change. [ABSTRACT FROM AUTHOR]

The transnational movement of climate activists is resorting increasingly often to acts of civil disobedience. Upon being prosecuted for those acts, climate activists across various jurisdictions are starting to plead the general criminal law defence of necessity. The present article takes the cases in which that defence was pleaded before Swiss courts as a case study to analyse the legal questions raised by the 'climate necessity defence', conceptualised as an instance of climate litigation. The article hence situates the Swiss cases within a broader framework, trying to draw interpretive insights from international environmental law and climate science, as well as the transnational case‐law on the climate necessity defence. The article's overarching submission is that a broad interpretation of the defence, tending towards accepting its applicability, is more in line with the current legal thinking on environmental matters than a restrictive interpretation rejecting a priori climate necessity claims. [ABSTRACT FROM AUTHOR]

Following the landmark Urgenda case, European social movements and legal networks have increasingly turned to courts to compel governments to more ambitious mitigation policies. The rapid proliferation of Urgenda‐like cases in the most diverse European jurisdictions, makes a compelling case to investigate the motivations and goals animating European climate litigators, especially when facing high legal barriers. While timely legal analyses of high‐profile climate litigation abound in the literature, an emerging body of research has focused on the genesis of climate cases , their strategies, and societal impacts. To contribute to this latter thread, the article investigates how legal barriers and considerations, and social movements' motivations and goals,have shaped a diverse range of legal strategies in high‐profile climate lawsuits inspired by Urgenda in Europe. The article shows that courts might turn into very different arenas to pursue social change, in which actors elect cautious or daring strategies, depending on the legal system and tradition they refer to, but also their vision and objectives. [ABSTRACT FROM AUTHOR]

Trends in the Argentine courts indicate a judicial preference towards flexibility in light of possibly serious environmental consequences, particularly in relation to mining. Through a liberal interpretation of constitutional provisions where collective environmental rights are threatened, the courts have expanded access to justice, leading some to view the Argentine judiciary as "interventionist" or "political". However, judicial decisions emphasise compliance with constitutional mandates without necessarily encroaching on policy‐making realms. The constitutionalisation of environmental rights has had a strong influence on the judiciary's approach, but in combination with other factors, particularly civic mobilisation, institutional changes and an evolving public ethos on environmental protection. Proactive judicial engagement with the full extent of its powers to ensure that policy‐makers meet their constitutionally mandated obligations can compel policy‐makers to address sustainability issues and rethink strategies. This positioning of the judiciary as a catalyst for more effective environmental governance offers useful insights for European courts. [ABSTRACT FROM AUTHOR]

Over the seven decades of its existence, the European Court of Justice (ECJ) has performed well as a conflict‐solving institution. From the existing literature, it becomes less clear however to what extent it served as an effective agent for societal change. Obtaining clarity on this issue seems imperative in the current day and age, considering the gargantuan challenges of accelerating climate change and environmental degradation: if the ECJ generally manages to 'deliver', at least some further progress could realistically be expected on this front also. The present article conducts an examination reviewing the experiences in the green domain from a comparative perspective, seeking to discern possible patterns and draw common inferences. Thus, it aims to expose how and when judges prove successful in recalibrating the conduct or opinions of real people in actual practice. Those insights may well inform future progress in different fields—the ecological as much as anywhere. [ABSTRACT FROM AUTHOR]

Few studies address climate litigation and climate forced mobility together, and the link between climate litigation and internal forced climate displacement remains poorly addressed. This article aims to participate in filling this void. We focus on climate displacement litigation argued before regional human rights courts (the Inter‐American Court) and national human rights protection bodies (the Mexican Commission) to determine the adequacy of each from the perspective of potential litigants. We address institutional, procedural and positive law within the context of water scarcity. We find that while institutional and procedural aspects reveal the potential of the Inter‐American Court in ruling on climate displacement cases, the application of the positive obligations doctrine by the Mexican National Human Rights Commission is more disaggregated and a priori suitable to ground the course of action of potential litigants. [ABSTRACT FROM AUTHOR]

This article explores how judicial approaches to science relate to the procedural legitimacy of rulings in cases where the plaintiffs seek a change in a government's overall climate policy. It reviews challenges in court interaction with climate science and compares two prominent cases: Urgenda v. The State of the Netherlands and Neubauer et al. v. Germany. The selected lawsuits yield comparative interest in aiming for changes in national climate policies and emission mitigation targets, involving the same kind of evidence (Assessment Reports by the Intergovernmental Panel on Climate Change) but resulting in partially opposing decisions. The analysis reveals that scientific inputs informed courts about climate change risks and mitigation measures. It also suggests that differing approaches to scientific reports influenced contrasting decisions regarding mitigation targets. Finally, it provides insights into how engagement with evidence might impact judgments' legitimacy from a procedural perspective. [ABSTRACT FROM AUTHOR]

Dark Patterns are interface design elements that can influence users' behaviour in digital environments. They can cause harm, not only on an individual but also a collective level, by creating behavioral market failures, reducing trust in markets and promoting unfair competition and data dominance. We contend that these collective effects of Dark Patterns cannot be tackled by existent laws, and thus call for policy intervention. This article reviews how existing and proposed laws in Europe and the US, namely the EU Digital Services Act and Digital Markets Act as well as the U.S. DETOUR and AICO Acts, address these collective dimensions of welfare and add to existing protection. We find that the novel legislative measures attain that goal to varying degrees. However, the collective welfare perspective may prove useful to both support a risk‐based approach to the enforcement and provide guidance as to which practices should be addressed as priority. [ABSTRACT FROM AUTHOR]

The use for security purposes of airline passenger data (PNR) has gradually come to the fore especially in EU‐US relations because of the tension between those who considered the use of PNR an effective tool in the fight against terrorism and those who considered the interference in citizens' privacy disproportionate. The Court of Justice intervened decisively on the issue in June 2022 with the "Ligue des Droits Humains" Judgment C‐817/19. This ruling should have been followed by a review of the national legislations that transposed the Directive. On the contrary, the Member States are still going in the opposite direction to that indicated by the Court. [ABSTRACT FROM AUTHOR]

An introduction is presented in which the editor discusses articles in the issue on such topics as the Transatlantic Reflection Group on Democracy and the Rule of Law on Artificial Intelligence, digital accountability, as well as the use of airline passenger data for security purposes.

This article highlights how the EU fundamental rights framework should inform the liability regime of platforms foreseen in secondary EU law, in particular with regard to the reform of the E‐commerce directive by the Digital Services Act. In order to identify all possible tensions between the liability regime of platforms on the one hand, and fundamental rights on the other hand, and in order to contribute to a well‐balanced and proportionate European legal instrument, this article addresses these potential conflicts from the standpoint of users (those who share content and those who access it), platforms, regulators and other stakeholders involved. Section 2 delves into the intricate landscape of online intermediary liability, interrogating how the E‐Commerce Directive and the emerging Digital Services Act grapple with the delicate equilibrium between shielding intermediaries and upholding the competing rights of other stakeholders. The article then navigates in Section 3 the fraught terrain of fundamental rights as articulated by the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) under the aegis of the European Convention on Human Rights and the EU Charter. This section poses an urgent inquiry: can the DSA's foundational principles reconcile these legal frameworks in a manner that fuels democracy rather than stifles it through inadvertent censorship? Section 4 then delves into the intricate relationship between fundamental rights and the DSA reform. This section conducts a comprehensive analysis of the key provisions of the DSA, emphasising how they underscore the importance of fundamental rights. In addition to mapping out the strengths of the framework the section also identifies existing limitations within the DSA and suggests potential pathways for further refinement and improvement. This article concludes by outlining key avenues for achieving a balanced and fundamental rights‐compliant regulatory framework for platform liability within the EU. [ABSTRACT FROM AUTHOR]

Data plays a crucial role for society. Accordingly, building a 'single market for data' by increasing the availability of public and private data ranks high on the EU policy agenda. But when advancing legal data sharing regimes, there is an inevitable need to balance public and private interests. While the European Commission continues to push for more binding rules on data sharing between private businesses, public undertakings are already covered by mandatory rules. Exploring how the law addresses their data offers valuable lessons on the reconciliation of market reasoning with the public interest. In particular, this article inquires into the recast Open Data and Public Sector Information Directive, the Data Governance Act, and different national rules which regulate access to and re‐use of public undertakings' data. It identifies five striking characteristics and discusses their potential and limitations for regulating data sharing by private undertakings. The implications serve as a guidepost for advancing the wider debate on building a single market for data in the EU. Some of them are already reflected in the upcoming EU Data Act. [ABSTRACT FROM AUTHOR]

The last decade has seen increasing demands for greater accountability in digital governance. What, however, does accountability require and what normative goods does it serve? This article develops a general framework for assessing digital accountability focused on four normative goods: openness, non‐arbitrariness, effectiveness and publicness. As the article will evidence, claims for digital accountability often refer to deficits relating to one or more of these goods. While scholarly attention has deservedly focused on tying powerful digital actors to rule of law guarantees, the article argues that accountability offers an important normative yardstick to allow citizens to contest digital decisions beyond strict legality. The framework therefore provides a basis for both conceptually disaggregating and normatively forwarding accountability claims in the digital sphere. [ABSTRACT FROM AUTHOR]

The optimisation of sales practices in consumer markets through machine learning not only harbours the potential to better match consumer preferences with products, but also risks to facilitate the exploitation of consumer weaknesses discovered via data analysis. More specifically, recent technological advances have brought us to the edge of mind‐reading technologies, which automatically analyse mental states and adapt offers accordingly, in potentially manipulative ways. This article shows that, in market contexts, the challenges of manipulation by algorithm necessitate an integrated understanding of unfair commercial practice, data protection, and privacy law. It maps the interactions between these contiguous yet distinct fields of law, and draws on economics and computer science to develop a novel framework to deal with algorithmic influence. Furthermore, it critically discusses the Commission proposals for the Digital Services Act and the Artificial Intelligence Act, and suggests to complement them with more broadly applicable measures to mitigate algorithmic manipulation. [ABSTRACT FROM AUTHOR]

The article discusses the aim of the Transatlantic Reflection Group on Democracy and the Rule of Law in the Age of Artificial Intelligence (AI) to address challenges facing democracy caused by monopolies and centralized governance of AI. It describes the formation of the interdisciplinary group, its concerns regarding AI systems and the importance of reforming laws governing such technologies. It presents the group's manifesto outlining the principles to follow in addressing the challenges.

Recent and upcoming judgments of the Court of Justice of the European Union (CJEU) have resurfaced a much‐debated topic on the legal limitations of law enforcement authorities and intelligence services under EU law in implementing surveillance operations. In its decisions, the CJEU has reinstated and at times remoulded its case‐law on data retention, unearthing a variety of legal issues. This article aims to critically analyse the legal limitations of (indiscriminate) surveillance measures, the role of the private sector in the scheme, and the line between the competence of the Member States and that of the EU on national security matters. It also aims to remark on the latest developments on the reception of the decisions by the Member States and the EU legislator, as well as on the ongoing dialogue between the CJEU and the European Court of Human Rights (ECHR). [ABSTRACT FROM AUTHOR]

An introduction to the journal is presented in which the editor discusses various reports within the issue on topics including the European integration, the legitimacy of the Banking Union (BU), and the Court of Justice of the European Union (CJEU) case law on the European Arrest Warrant.

Mutual trust in the Dublin III Regulation is justified by the assumption that all Member States respect the fundamental rights of asylum seekers and that it is therefore immaterial which Member State processes any given claim. This justification has been questioned in light of the treatment of asylum seekers in some Member States. Nonetheless, in order to circumvent a Dublin transfer on fundamental rights grounds, the Court of Justice of the EU has held that the risked violation must meet the threshold for inhuman or degrading treatment in Article 4 of the Charter. Recently, the Court rejected the proposition that another Charter right—the principle of the best interests of the child—could block Dublin transfers of families with children. Through a child‐rights analysis of the jurisprudence, this article explores the idea of exceptionality for children, concluding that there is potential for the best interests principle to trump mutual trust. [ABSTRACT FROM AUTHOR]

This comment on Ermioni Xanthopoulou's insightful article starts by revisiting the nature and role of trust in the European Arrest Warrant (EAW) procedure, considering the recent developments in the case law of the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) (from Aranyosi/Căldăraru to Bivolaru/Moldovan). It is argued that trust is distinct from the presumption of respect for fundamental rights that underlies mutual recognition. The exercise of trust is now monitored by those Courts, as a means of protecting individual rights. This rehabilitates the proper meaning of trust, which can be reinforced by assurances. Prison conditions and legal changes affecting the rule of law are analysed in this light, as 'drivers of distrust'. In sum, distrust can legitimately provide immediate protection for the individual, and the spectre of distrust causes the appreciation of trust, which in turn is beneficial for fundamental rights. [ABSTRACT FROM AUTHOR]

The aim of the article is to fill a gap in the literature on the externalisation of immigration control by focusing not on practices of extraterritorial immigration control but on the externalisation of immigration control at the EU external border. The article will examine four parallel and inter‐related trends of preventive injustice on the border: the denial of law and pushbacks, and their handling by judicial authorities and EU institutions and agencies; the emerging framework of the instrumentalisation of migration; the normalisation of border procedures based on the fiction of 'non‐entry'; and detention of third‐country nationals at the border, to back up non‐entry policies. The article will highlight the rule of law deficit such externalisation entails. [ABSTRACT FROM AUTHOR]

This article discusses the role of soft law in advancing the rights of persons with disabilities in the European Union (EU). In doing so, it revisits the emergence of the standalone, yet cross‐cutting, field of 'EU disability law' through the lens of the 'hybridity theory' advanced inter alia by Trubek and Trubek. Being speculative in nature, this article construes EU disability law as a fruitful area for an enquiry into the dynamic relationship between hard and soft law. Until the entry into force of the Treaty of Amsterdam, soft law was crucial to attract disability within the sphere of action of the EU and to embed the social model of disability, displaying a value‐setting role. In the post‐Amsterdam period, soft law and hard law coexisted, being complementary to one another. Both contributed to a common objective, namely that of advancing equality of opportunities for persons with disabilities. After the conclusion of the UN Convention on the Rights of Persons with Disabilities, the dynamic relationship between hard and soft law has become more complex and akin to what Trubek and Trubek define as 'transformation'. [ABSTRACT FROM AUTHOR]

The Single Supervisory Mechanism (SSM) and Single Resolution Mechanism (SRM) form the Banking Union, which comprises EU authorities (ECB and SRB) and national authorities (NCAs and NRAs) with vast powers. Although crucial for its legitimacy, the Banking Union's accountability is flawed, and not for the (stereo)typical reasons: accountability is a visible concept in SSM and SRM regulations, and political, administrative and judicial bodies are knowledgeable, engaged and thorough. Rather, this article posits that the SSM and SRM work very well because the legislature focused on practical details such as information flows, planning and continuity and coordination, while there has been no comparable effort to ensure the functioning of accountability tools. The result is a "system" characterised by limited access to crucial information, lack of continuity, and uncoordinated functioning. Changing this should not be hard but requires replacing blanket criticism and stereotypical views with greater attention to detail. [ABSTRACT FROM AUTHOR]

The ethical‐political model of the EU needs normative rethinking after the pandemic. Using Dworkin's 'thesis of continuity' between ethics and politics, I argue that a strong model of the citizen, called on to exercise duties and civic virtues, is badly needed by the EU. The legitimacy of EU political institutions is not enough, if we want to promote the participation of citizens to their functioning. The basic point is that of arguing in favour of the model of 'the reasonable citizen', aimed to overcome the dominant liberal model of 'citizenship as rights'. This is shown by the 'European Social Model', but its weaknesses need to be supplemented by a republican conception. In order for the reasonable citizen not to be just an abstract ideal, some measure of operationalisation is proposed through 'progressively increasing constellations of common identities'; these rely on and respect the multiple demoi of the EU. [ABSTRACT FROM AUTHOR]

This contribution assesses representation in the EU through the lens of demoicracy, focusing on how the demos and the demoi are represented and how this interacts with the executive‐legislative balance and party politics. As the Belgian polity is a living case for the EU but often as flawed as the latter when it comes to democratic standards of representation, we examine whether and how reform proposals for the Belgian polity can inspire future reforms at EU level. We demonstrate that the direction demoicracies should head for when strengthening democratic representation should include a balanced representation of the demos and demoi via a bicameral system, a polity‐wide constituency to represent the demos, involvement of the legislatives of the constituent units at the encompassing level, and a specific role for polity‐wide parties. [ABSTRACT FROM AUTHOR]

In some Member States, doctrine and case law of national courts have highlighted that, under currently applicable European electoral law, elections to the EP are of a second‐order, whereby European issues give way to purely domestic ones. In any event, this does not hinder the position of the EP as a genuine legislative chamber, which, above all, demands effects from electoral law that it cannot provide, since the intensity with which an election is experienced depends on circumstances external to the system itself. What electoral law can guarantee instead is the periodic holding of free elections. And that requires ensuring that the EP is appointed by the free expression of the opinion of all (and only) European citizens; that the weight of the vote is determined by rational criteria; that the electoral formula allows access to significant political currents; and that the "rule of law" is respected in the electoral process. [ABSTRACT FROM AUTHOR]

EU Treaties contain an arsenal of purpose‐defined and ambiguous competences that are enjoyed by EU institutions, yet devote little attention to the restraining impact of EU competences on Member States' autonomy and policies. While the focus has traditionally been on subsidiarity to deal with competence issues, the judgment of the Bundesverfassungsgericht in Weiss revitalises the discussion on the potential of proportionality to guide competence issues. This inquiry seeks to highlight both the existing traces of competence proportionality employed by the Court to allocate competences as well as the potential of the proportionality standard to temper the spillovers on Member States' autonomy accruing from the exercise of EU competences. While the Treaty restricts proportionality to reviewing the use (not existence) of EU competences, the Court has implicitly employed proportionality considerations to verify the existence of EU competences. In addition, drawing from established case law, competence proportionality assessments could rely on an effect‐based substantive review in combination with procedural duties allowing a meaningful balancing of national autonomy against the dynamics of deeper integration. [ABSTRACT FROM AUTHOR]

Discussions pertaining to advancing strategic policies and democracy in the EU cannot afford to disregard a fundamental institutional dilemma of the EU's political system, the conflict between intense interdependence and power sharing in a multilevel polity for one, and autonomy of governments as a condition for democratic legitimacy of power for another. Conceiving the EU as a federal democracy draws attention to this dilemma. This concept suggests democracy‐preserving modes of governance instead of coercive coordination (policy adjustment to competition in the common market, joint decision‐making among governments, central regulation by law and court decisions), which so far predominate in most relevant policy fields. It also calls for procedures to cope with issues of distributive justice stemming from territorial disparities in resources and burdens. The article conceptualises these challenges and outlines feasible steps to advance federal democracy in the EU. [ABSTRACT FROM AUTHOR]

Differentiation has become a central topic of debate in the EU. Generally, it is considered a positive device for advancing integration in crucial policies, letting the unwilling states opt out from the new regimes. However, the debate has not sufficiently acknowledged that policy differentiation has been made possible by governance differentiation. It was the 1992 Maastricht Treaty's decision to inaugurate an intergovernmental regime for core state power policies, distinct from the supranational regime regulating single market policies, that allowed differentiation to flourish. Differentiation and intergovernmentalism are thus inter‐connected. During multiple crises of the last decade, intergovernmental governance has shown its undemocratic effects, thus soliciting a critical reappraisal of the differentiation logic. The federalisation of the EU appears a more promising alternative strategy for advancing integration and, at the same time, meeting the democratic expectations of the EU. [ABSTRACT FROM AUTHOR]

This article explores the role and justifications for EU action in the EU Area of Criminal Justice, also relying on a comparison with the justifications for EU action in the internal market. It distinguishes between a role for the EU as a subsidiary policy actor and as a primary policy actor. By substantiating both models, the article illustrates how the model of the EU as a subsidiary policy actor has been challenged by legislative and judicial developments in the internal market and how these trends were particularly accentuated in the EU Area of Criminal Justice. The EU increasingly regulates areas of non‐cross‐border crime, as can be appreciated by the shape and the implementation of the competence to harmonise definitions of crimes. And the Court of Justice has unequivocally extended the application of EU criminal law, both substantive and procedural, to internal cases. The article argues that such developments, which build on pre‐existing trends in the internal market field, are inevitable in the EU Area of Criminal Justice due to the inherent fundamental rights' sensitive nature of criminal law. A subsidiary, piecemeal approach in criminal justice might safeguard national regulatory autonomy but is hardly affordable as it would challenge general principles of criminal law. Relying only on "legal cross‐borderness" as a criterion to justify EU definition of crimes would neglect the harm principle and the legal interest principle. Legal creativity that would stem from limiting EU intervention and safeguarding regulatory competition can be fostered by enlarging EU regulatory tools in this area codifying also decriminalisation competences. Moreover, limiting the application of EU criminal law to only cross‐border cases is at odds with the principle of legality in criminal matters and of equal treatment. [ABSTRACT FROM AUTHOR]

EU policy‐making in criminal law is a matter of significant public concern for EU citizens and the Member States. The exercise of EU public powers in the fields of criminal law and law enforcement have tangible and adverse consequences for the liberties and well‐being of individuals. Furthermore, EU cooperation in the area of criminal law touches upon core functions of statehood including 'core state powers' such as the safeguarding of internal security and law enforcement. This raises several questions regarding the rationale underpinning EU criminal policy and its legitimacy within the context of a multi‐level polity. This article sketches out a normative argument for legitimate justifications for some particular areas of EU criminal law on the basis of the transnational criterion enshrined in the subsidiarity principle. The article claims that there is a compelling justification for EU action in criminal law to protect European public goods and other key transnational interests. [ABSTRACT FROM AUTHOR]

This contribution intends to show that normative foundations, in the sense of foundations prescribing norms or expressing prescriptions, have been rather limited in determining or defining the legal bases, legal provisions and their evolution in EU criminal law. EU primary and secondary law in penal matters has indeed been adopted mainly in reaction to the need to adjust to reality, to face challenges, react to facts, incidents and threats and to implement overwhelmingly political objectives, which themselves follow most of the time from the said factual or operational needs resulting from practice. This thus calls for an assessment of the advantages and risks of the relatively decisive role of external factors on the development of criminal justice in the EU. [ABSTRACT FROM AUTHOR]

Ever since the establishment of EU competence to legislate in criminal matters, legal scholarship has been devoting a fair amount of attention to the scope of these powers as well as to their proper exercise. The many scholarly contributions this has led to make a commendable and laudable body of knowledge with respect to the matter at hand. Yet, as will be argued, its capacities to shape the normative foundations of EU criminal law remain limited, with the main reason being that normative limits of EU‐level criminalisation have so far predominantly been articulated in terms of principles. For the reasons set out below, this article proposes to supplement the ongoing debate with another conceptual lens, i.e., the lens of legal interests (Rechtsgüter). The purpose of this article is to substantiate the point of view that the concept of legal interests offers essential opportunities to further shape the normative foundations of EU criminal law. [ABSTRACT FROM AUTHOR]

The increasing legislative activity of the Union in the field of criminal law highlights the need for a normative justification of EU action in this area. The article first examines and compares the existing EU legislative grounds for criminalisation, coupled with EU criminal policy orientations, with the well‐established criminalisation grounds recognised in criminalisation theory in order to distil what the underlying substantive criminalisation principles behind EU criminal law may be. This article then scrutinises 'effectiveness' as the potential normative principle of EU criminalisation. It is submitted that, within EU criminal law and policy, effectiveness has become a sort of 'hybrid criminalisation principle', joining pragmatic with seemingly normative criminalisation‐legitimising considerations. However, the article argues that effectiveness should remain primarily conceptualised as a pragmatic criminalisation consideration, not as a normative substantive criminalisation principle that acts as the first and most important criminalisation criterion determining the content of what may be criminalised. [ABSTRACT FROM AUTHOR]

Although the place of EU criminal law in the European construction has become incontestable today, it has historically been a far from obvious one. In its origins and development, two different rationales can be distinguished: a functional one aimed at using criminal law instruments to address specific cross‐border crime challenges generated or enhanced by the progress of EU integration in other fields, and a constitutional one implying the use of criminal law also to further enhance the respect and promotion of EU common values. While the first rationale has been dominant from the outset, the second has emerged only gradually. For the sake of effectiveness, legitimacy and mutual trust, both rationales should equally drive the further development of EU criminal law. Yet prospects for a stronger affirmation of the constitutional rationale are weakened by current EU rule of law and democratic leadership challenges. [ABSTRACT FROM AUTHOR]

This article looks at how and why the EU has been/can be endowed with powers over criminal matters, within the framework of the theory of jurisdiction. It examines the extent to which the specific responsibility of the EU for the protection of certain legal interests justifies the establishment of a (peripheral) jurisdiction. Member States (MS) can confer such powers upon the EU, but this attribution must be consistent with their domestic obligations and limitations on state action. A crucial distinction is established between exclusive and shared responsibility: the former concerns the protection of 'institutional legal interests' exclusive to the EU, whereas the latter relates to 'functional legal interests', which also fall within the remit of Member States but are moulded or significantly affected by EU policies. It is argued that this differentiation should translate into the type of acts adopted, which may require some adaptations to traditional guarantees such as the legality principle. [ABSTRACT FROM AUTHOR]