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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]

The death and disease burden of non‐communicable diseases falls disproportionately on members of lower socioeconomic groups. This paper explores NCD prevention measures introduced through EU consumer law in order to assess the impact these have had on health inequalities. It demonstrates that these interventions often have limited impact, and therefore maintain inequalities. Indeed, when interventions do work, they tend to be more effective with advantaged citizens than disadvantaged citizens, and therefore increase inequalities. From a behavioural research perspective, this paper demonstrates why these interventions – which focus on regulating the consumer information environment – have failed to reduce health inequalities, and analyses the debate on the extent to which behavioural research should act as a core consideration in public health related consumer policy. The paper concludes that, while regulating consumer information is a useful tool for NCD prevention, if information‐based interventions are to reduce health inequalities the EU will need to incorporate greater insights from the way consumers actually behave. Moreover, there are limitations to policies which regulate information, and therefore the EU should make more use of other tools in its regulatory toolbox. [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]

To assert their role in global governance, international organisations, including the EU, have progressively involved economic actors in their activities, particularly in the course of law‐making processes. Their integration, even if necessary, raises the risk of excessive influence that they may exert on law‐makers. The paper builds on the theory of regulation that coined the concept of 'capture' and proposes to analyse the conditions and effects of such phenomenon within three selected international organisations that are particularly prone to the influence of economic actors: the United Nations (UN), the International Institute for the Unification of Private Law (UNIDROIT) and the International Centre for Settlement of Investment Disputes (ICSID). In light of their practice, the paper suggests key features that an EU legal framework could take to promote the participation of economic actors in its law‐making process while preventing the occurrence of capture. [ABSTRACT FROM AUTHOR]

This paper it looks at some of the normative questions which frame debates about the EU constitutional architecture. Its main objective is to identify the core facets of a ‘responsible and inclusive EU constitutionalism’, and to argue for a focus on process, freedom, fairness and democracy as well as formal constitution–building within the debates inside and outside the Convention running up to the Intergovernmental Conference anticipated for 2003/2004. A model using the work of Canadian political theorist James Tully is constructed. The paper applies this framework in order to analyse some aspects of the work of the Convention on the Future of the Union, looking especially at questions of autonomy, representativity, internal dynamics, deliberation, receptiveness, and decision–making. The interim conclusion is drawn that the Convention method contains within itself the seeds of a critical and reflexive approach to EU constitutionalism. [ABSTRACT FROM AUTHOR]

The EU has demonstrated interesting institutional practices with regard to the evolution of environmental norms. The paper illuminates a role of law in the institutional practices in terms of the discursive power of law, drawing on the fact that law catalyses discourses and individual laws in and of themselves are also discourses. In order to elucidate this discursive viewpoint, the paper offers a conceptual framework, referring to the concepts of frame and regime. Building on this conceptual framework, the paper understands the development of EU environmental law as an example of normative evolution in a régime and describes the evolutionary process from pre– to post–Single European Act. [ABSTRACT FROM AUTHOR]

The rule‐of‐law‐backsliding in some Member States has subverted not only one of the EU fundamental values but also trust among national authorities when implementing European Arrest Warrants (EAW). However, when evaluating the execution of EAWs issued by countries experiencing rule‐of‐law crises, the Court of Justice of the EU (CJEU) sought to preserve judicial cooperation and imposed a rather "top‐down" view on mutual trust among Member States. This approach seemingly disregards the (dis)trust which has emerged in the EU due to rule‐of‐law‐backsliding and fails to acknowledge the psycho‐sociological nature of trust. Drawing on the trust literature, the paper offers novel conceptual elements to rethink mutual trust in the EAW framework. Notably, it critically assesses some of the gaps in the CJEU's interpretation of mutual trust and advances suggestions to embed empirical considerations in the conceptualisation of this principle to bridge the gap between trust in practice and in principle. [ABSTRACT FROM AUTHOR]

The war in Ukraine triggered significant changes at the European Union level. The speed at which the EU has achieved progress on sanctions, migration and defense is particularly impressive. But the Russian aggression against Ukraine has also served as a pretext for putting aside internal discussions about the rule of law, and provided additional political rationales for inaction against Member State governments responsible for the violation of European values, as well as triggered the deepening of double standards in several fields. Against this background, the paper argues that using this crisis as a justification for further inaction in the context of EU values is not a sustainable course of action. The Union must not delay further the need to act to halt the insidious erosion of democracy and the rule of law within its own borders both at the national and supranational level. [ABSTRACT FROM AUTHOR]

The word 'governance' has become an increasingly central policy motif in the European Union and elsewhere yet its meanings are ambiguous and often poorly understood. This article examines the genealogy of that concept focusing in particular on the European Commission's claim to have developed a new, more open and progressive model of 'European governance'. The paper is set out in four steps. The first analyses the European Commission's claims for 'governance' as a concept integral to its new vision for Europe. The second interrogates some of the conflicting definitions and meanings inherent in the term and examines the highly selective paradigm of governance that has been developed in official Commission discourse. The third addresses two specific areas where the Commission's governance model has been applied: the Green paper on The Future of Parliamentary Democracy and the Open Method of Coordination. The fourth turns to analyse these findings using critical social theory. I conclude that far from laying the grounds for a more inclusive, participatory and democratic political order, the Commission's model to governance represents a form of neoliberal governmentality that is actually undermining democratic government and promoting a politics of exclusion. [ABSTRACT FROM AUTHOR]

The open method of coordination (OMC) has emerged as a new policy instrument in the European context. While it was initially confined to the employment field, it has recently been applied to several other areas. The aim of this article is to provide a reconstruction of the OMC. The focus is in particular on the structure and process of the OMC, but also on the new approach to law that it proposes. The OMC differs from traditional EC methods but also from traditional soft-law mechanisms. In order to highlight those original features, the paper analyses the key steps in the evolution of a strategy, the European employment strategy, which slowly became a new mode of governance. [ABSTRACT FROM AUTHOR]

This article seeks to examine the relationship between EU law and the Italian legal order in light of the recent Italian Constitutional Court (ICC)'s jurisprudence attempting to redefine EU core principles. When fundamental rights are at stake, three assumptions are challenged: the determination of direct effect shall be a prerogative of the ECJ; EU directly effective provisions entail the disapplication of conflicting national law; judges have the discretion to refer preliminary references to the ECJ where a clarification on EU law is needed. The contribution argues that the judicial search for a balance between sovereignty and supranationality is undermined by the ICC's new resistance to the well‐established EU jurisprudence. In that respect, the paper posits that the ICC's activism is the result of an unjustified 'argumentative self‐restraint' of the ECJ vis‐à‐vis the evolution of EU foundational principles. [ABSTRACT FROM AUTHOR]

This paper critically questions the legal and economic foundation of price regulation in environmental markets, with a focus on the European Union (EU) and Chinese Emissions Trading Schemes (ETSs). In 2018, the EU adopted a structural reform of its own ETS with the objective of increasing and stabilising carbon prices. This reform raises fundamental questions concerning the free market nature of the ETS and its function as a driver of low‐carbon investments. On the one hand, regulatory adjustments are necessary to address the large surplus of allowances that can result from exogenous shocks (e.g. economic downturn). On the other hand, the risk of regulatory intervention in the market undermines investor certainty. In China, limited regulatory independence and more stringent government control over the market exacerbates the threat posed by price control measures to the integrity of China's ETS and its role as a driver of investments in environmental protection. [ABSTRACT FROM AUTHOR]

Difficulties abound as to where the boundary between legitimate and illegitimate processing of personal data should be set. The open‐ended wording of the EU Data Protection Directive (DPD) 95/46 leaves space for diverse interpretations. The European Court of Justice finds it difficult to establish methodically the contextual data flows associated with individuals' rights and their processing, with cascading consequences for the proportionality analysis, thus echoing the wider debate on proportionality. Taking stock of the criticisms of the ECJ's decisions and of the changes introduced by the General Data Protection Regulation, this paper proposes to use contextual integrity, a framework of analysis developed by Helen Nissenbaum, largely implicit in EU data protection law, to provide a systematic method of interpretation that ensures more consistency in current EU legal practice. It recommends adopting a new formal three‐tier structure, so that all factors necessary to the discussion on proportionality are fully and systematically identified and proportionality is taken seriously. [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 1995 ruling of the European Court of Justice in Bosman was a pivotal point in the relationship between the European Union and sport. It has had an immense impact upon professional team sports, most notably football, in terms of liberalising the transfer system and abolishing player quotas. This paper will chart the development of a European sports law policy generally and will specifically discuss two current proposals concerning the reintroduction of playing quotas in football. We will examine the legality of these proposals with reference to Article 45 of the Treaty on the Functioning of the European Union and will evaluate the political context within which these proposals have been promulgated. It will be suggested that a possible solution, which should end legal uncertainty, could be the adoption of a collective agreement or directive based on the methodology of reflexive labour law. [ABSTRACT FROM AUTHOR]

Globalisation has increased the mobility of people while rapid development of the knowledge economy places human capital at the centre of economic progress. Both result in competition for highly skilled labour among states, particularly the more-developed states. The EU has a particular role in this global competition for the highly skilled. It is faced with the ageing of its population. Furthermore, the quest to revitalise the EU's economy by implementing the ambitious Lisbon Strategy requires an additional 700,000 research positions. Lastly, the EU is trying to design a common European policy for economic migration, starting with the Green Paper in 2005. This article aims to contribute to a common policy design in the area of highly skilled temporary migration. It compares the UK and German schemes for highly skilled immigrants (the only two in the EU) with the successful US scheme, still seen as the benchmark for the EU. The findings are twofold. First, there is a set of obligatory characteristics that should be introduced to the schemes to make them more attractive. Second, as the programmes are not the only factors that determine the attractiveness of a respective country, the article argues that an EU common policy for highly skilled migrants would make the EU area more attractive as a whole and therefore increase its competitiveness in the global economy. [ABSTRACT FROM AUTHOR]

Moving from Michel Foucault's criticism, in the mid-1970s, of a‘theory of the State’, this paper addresses the relevance—for the current process of making the‘Constitution’ of the European Union—of the obsolescence of the state concept and the emergence instead, in the course of the twentieth-century, of an idea of‘social control’ as a way to represent conditions for social order within the new mass democratic society. Such conditions, and the theory thereof, first developed in North America, and then increasingly in Europe after World War II and especially since the 1970s. From such a comparative-historical perspective, the paper then tries to shed light on the debate that was ignited by Dieter Grimm on the very possibility of a‘democratic constitutionalisation’ of Europe. The connections between language, social control, and a (democratic) European constitution are then discussed, and specific attention is given to the nexus that has been constructed in today's Europe between migration, criminalisation and security, as a sort of test bench of those connections. [ABSTRACT FROM AUTHOR]

Conditionality has deeply affected European integration, particularly in what concerns EU human rights external policy on the one hand, and the enlargement process on the other hand. This paper affords a picture of the problems which conditionality has raised, not only on legal grounds, but also for the shaping and the understanding of the European identity. Moreover, the paper investigates how recent EU developments, such as the further stages of the enlargement process and the ‘Treaty establishing a European Constitution’, might change the course of, and might be affected by, conditionality. [ABSTRACT FROM AUTHOR]

The January 2004 issue of "European Law Journal" is devoted to research by young scholars in European law. It presents a selection of the revised versions of papers which were originally presented at the First International Workshop for Young Scholars in European legal studies. The articles selected for publication in this issue, though ranging widely in specific topics, deal with two broad areas of concern. The first area is governance, including domestic, social and economic regulation, issues of powers and competence, and relations of the European Union with other countries. The second area is consumer protection, broadly understood to include access to justice and public health, as well as protection against defective products.

This paper builds on a process–oriented approach which examines constitutionalism with respect to both legislation and social practices. Drawing on the institutionalist concept of the organisational field it provides tools for explaining the emergence of the distinct connectedness and isomorphism of European sex equality norms. The paper elucidates the shifting meaning of sex equality in the field of employment on the one hand, as it demonstrates the close ties between sex equality law and the constitutional status of gender norms on the other. Contrary to both the intergovernmentalist and neo–functionalist approaches in European integration studies, the concept of ‘institutionalist field’ allows for explication of shifting institutional demands that work beyond the rational interests of the nation–state. The field approach thus emphasises the interrelation between legal and political actors and their respective shared cognition which defines what bears meaning. [ABSTRACT FROM AUTHOR]

Abstract: Contemporary critiques of globalisation processes often focus on the potential levelling of regulatory standards and the export by the United States of neoliberal norms of deregulation and market facilitation. This paper, in contrast, examines the extra-jurisdictional impact of EU regulatory policy on the behaviour of foreign private parties, even in powerful states such as the United States. Shaffer finds that the threat of curtailing access to the EU's large market provides the EU with leverage. By acting collectively, EU Member States can magnify the impact of European policy on US business practice and enhance EU Member State clout in the negotiation of de jure and de facto foreign standards. The site of analysis is the current dispute between the United States and the European Union over the provision of 'adequate' data privacy protection in accordance with the EU Directive on data privacy. The paper explores the many ways in which the Directive affects US practice through changing the stakes of US players - including regulators, businesses, privacy advocates, lawyers and privacy service providers - and thereby shifting the playing field in the United States on which competing interest groups clash. In examining the interaction of EU law, US practice and international trade rules, the author finds that WTO law, rather than constraining the Directive's extra-jurisdictional impact, provides the EU with a shield against US retaliatory threats, thereby facilitating a trading up of data privacy standards. The paper concludes by examining the conditions under which cross-border exchange can lead to a leveraging up of social protections: the desire for firms to expand their markets, Member States' collective bargaining power buttressed by market clout, the nature of luxury goods, the externalities of foreign under-regulation legitimising EU intervention, and the constraints of supranational trade rules. [ABSTRACT FROM AUTHOR]

This paper identifies key obstacles of law enforcement that may frustrate a policy that fights the facilitation of collusion. It outlines remedial actions against features that facilitate collusion and examines to what extent authorities––such as Directorate General (DG) for Competition, National Competition Authorities and regulators––have the powers and ability to take these actions. The analysis covers a number of legal tools including the theory of harm of coordinated effects in European merger control, Articles 101 and 102 Treaty for the Functioning of the European Union, stricter national laws and regulation. I conclude that DG Competition has little powers to act, except for merger control. Although NCAs and regulators may enjoy broader powers, tough challenges lie ahead in terms of the exercise of discretion, error and effectiveness of remedial actions. [ABSTRACT FROM AUTHOR]

Since the mid-1990s the European Union has introduced a number of policy coordination processes that abstain from delegating or pooling sovereignty. Instead the EU relies on soft law that does not legally bind governments in the same way as the Community Method used to. The literature assumes that soft law is chosen to achieve common objectives given considerable diversity among the Member States. In contrast, this paper suggests that non-binding coordination is first and foremost a means to foster compromises in the absence of substantial agreements. Three case studies demonstrate that international organisations have repeatedly relied on soft law to overcome disagreements among their members. The IMF, the OECD, and the EU introduced soft coordination at times of institutional crisis to prevent a breakdown of negotiations. [ABSTRACT FROM AUTHOR]

This paper provides an account of the European principle of subsidiarity that presents it as a principle of democratic structuring: engaging both with the allocation of powers to existing democratic institutions and with the creation of new democratic institutions. In the process of discussing the European principle, a contrast is drawn with the Catholic principle of subsidiarity and with the rival doctrine of national self-determination. It is argued that the European principle is a central part of the Union's constitutional identity, and, as such, crucial to an understanding of the European project. [ABSTRACT FROM AUTHOR]

The debate over the Open Method of Co-ordination has reopened discussion of the role of‘soft law’ in the process of European integration. This paper outlines the debate over the relative value of hard and soft law in EU social policy, explores the operation of non-binding objectives and guidelines in the European Employment Strategy, suggests a number of reasons why‘soft law’ might be effective in this area, and explores the possibility for productive combination of hard and soft law measures. [ABSTRACT FROM AUTHOR]

This paper discusses the relationship between the idea of coherence and the legal order set up by the European Community. It focuses on a specific dimension of this relationship and shows how the appeals to coherence made by the European Court of Justice have shaped a particular branch of the European legal order, namely, the judicial review of Community acts. The analysis of the Court of Justice's case law in this field shows that in its extensive use of coherence the Court of Justice explored and brought into play different types of coherence and, while it failed to distinguish between them, it made use of sorts of coherence that thus far legal theorists have disregarded. The article concludes that a closer collaboration between legal theory and legal practice would be profitable for both legal theorists and Community law specialists. [ABSTRACT FROM AUTHOR]

Extension of the acquis to the new Member States raises a number of questions relating to the temporal reach of Community rules. This paper examines a general doctrine underlying the solutions. It presents a classic intertemporal doctrine, which has influenced early jurisprudence of the European Court of Justice. Then, it comments upon the cases brought before the Court in the context of the 1995 enlargement, the entry into force of the EEA Agreement and also the Europe Agreements. These cases evidence substantial differences in the attitudes taken by the national courts, the Advocates General and the Court. One reason for divergence is that the line of reasoning adopted by the Court carries several interpretative difficulties characteristic of the classic doctrine. Secondly, controversies arise in the instances where the Court takes a proactive attitude, which is difficult to reconcile with the traditional scheme. It is argued that greater attention to the structure underlying the reasoning would help to strengthen justification of the Court's solutions and enhance their predictability. This is the more important, as the forthcoming accessions are likely to bring new disputes relating to the effects of Community law in time. [ABSTRACT FROM AUTHOR]

This paper addresses the issues on jurisdiction over consumer contracts concluded online in the Member States of the European Union through analysis of the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, which has been transformed into the Regulation recently. The changes brought by the Regulation to the régime of jurisdiction over consumer contracts in the European Union include the concept of the company ‘directing its activities towards particular Member State or States’ as a ground for a consumer to sue such a company in the country of his domicile. Since the list of criteria that could define the activity as directed to the particular Member State does not exist so far, the future effect of the Regulation remains unclear. [ABSTRACT FROM AUTHOR]

The paper analyses how politics and adjudication answer similar questions in the context of policy-making. It contrasts how societal problems are selected, defined, solved and legitimised by both disciplines. We raise these questions in regard to the liberalization of the European Electricity markets. We reconstruct the decision-making process at the political and adjudicative arena taking place in this policy area. By so doing, we elaborate the differences and establish the links between politics and adjudication. We argue that what differentiates these two disciplines constitutes their very links; that is, the adjudicative and political arena are linked precisely because they are different at various level. [ABSTRACT FROM AUTHOR]

It is a common place of academic and political discourse that the EC/EU, being neither a parliamentary democracy nor a separation-of-powers system, must be a sui generis polity. Tocqueville reminds us that the pool of original and historically tested constitutional models is fairly limited. But however limited, it contains more than the two systems of rule found among today's democratic nation states. During the three centuries preceding the rise of monarchical absolutism in Europe, the prevalent constitutional arrangement was ‘mixed government’—a system characterised by the presence in the legislature of the territorial rulers and of the ‘estates’ representing the main social and political interests in the polity. This paper argues that this model is applicable to the EC, as shown by the isomorphism of the central tenets of the mixed polity and the three basic Community principles: institutional balance, institutional autonomy and loyal cooperation among European institutions and Member States. The model is then applied to gain a better understanding of the delegation problem. As is well known, a crucial normative obstacle to the delegation of regulatory powers to independent European agencies is the principle of institutional balance. By way of contrast, separation-of-powers has not prevented the US Congress from delegating extensive rule-making powers to independent commissions and agencies. Comparison with the philosophy of mixed government explains this difference. The same philosophy suggests the direction of regulatory reform. The growing complexity of EC policy making should be matched by greater functional differentiation, and in particular by the explicit acknowledgement of an autonomous ‘regulatory estate’. At a time when the Commission aspires to become the sole European executive, as in a parliamentary system, it is particularly important to stress the importance of separating the regulatory function from general executive power. The notion of a regulatory estate is meant to emphasise this need. [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]

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]

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]

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]

Introduces a series of articles about the European Union enlargement.

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]

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 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]

The dissemination of public sector information is not carried out exclusively by public administration. A significant proportion of public sector information constitutes the raw material used by the content industry to offer goods and services and by citizens to provide richer information. In the European Union, Directive 2003/98/ EC on the reuse of public sector information establishes a set of rules governing the reuse of public sector information. Although this rule is not intended to provide greater transparency, the re-use of public sector information could have this effect. This article sets out the European policy on public sector information reuse and it looks in depth at the content of Spanish Act 37/2007, of 16 November, about the reuse of public sector information, as a case study, outlining some of the instruments that have been used in Spain as well as in other Member States to promote the reuse of public sector information. [ABSTRACT FROM AUTHOR]

The comitology regime, the committee-based system developed as a mechanism for controlling the Commission's exercise of its powers to implement EU measures, has been subject to severe criticism on grounds of lack of accountability and transparency. The system has recently been fundamentally reformed by means of the new Implementing Acts Regulation, which came into force on 1 March 2011. This paper investigates whether the new rules are sufficient to remedy accountability deficits as regards implementing acts and concludes that as far as accountability to the Member States is concerned, their control powers have remained static. In addition, the new-delegated acts procedure introduced by the Treaty of Lisbon grants the European Parliament (EP) more control powers, although the EP's gains are more modest than they might appear. This change has come at the cost of reduced control powers for Member States as well as lowered standards of transparency for the public. [ABSTRACT FROM AUTHOR]

This paper concerns the financial stability during the crisis. It introduces the experience of Chinese commercial banks. The Chinese commercial banks emphasise social responsibilities, which contributed to improve the stability of the Chinese financial system, while the increased financial stability brought tremendous positive effects to the development of economy, society and also the commercial banks themselves. We argue that in China, both the government and the financial authority enhance the commercial banks' social responsibility. There are sufficient incentives for the staff of commercial banks to increase the achievements of enhancing the social responsibilities under effective formal institutions. We further argue that, although the legal foundations of China and the EU are different, it is possible for the EU Member States to learn from China to increase the financial stability by enhancing the commercial banks' social responsibilities. We find that because the EU has much more developed financial markets, it is possible for the EU to create effective institutions and legal framework to achieve that goal through the market mechanisms. [ABSTRACT FROM AUTHOR]

Even 50 years on the principle of supremacy or primacy is still surrounded with ambiguity, which is apparent already on the level of semantics. The principle has not carried a single name, but three. This paper argues that a disparity in the denomination of the principle amounts to much more than semantics. It exhibits conceptual differences. Different conceptualisations of the principle of primacy or supremacy entail different models of structural principles of EU law: the hierarchical, the conditionally hierarchical and the heterarchical model. These are no mere theoretical constructions; rather they have influenced concrete practices of EU law, including the most recent Kücükdeveci case as well as the Lisbon decision of the German Constitutional Court. While none of the three models has yet found an unequivocal and conclusive endorsement in the EU practice, there are compelling theoretical and practical reasons for which one of them should be preferred over the others. Whether EU law has supremacy or primacy therefore matters. [ABSTRACT FROM AUTHOR]

Currently the Member States' nationalities, short of being abolished in the legal sense, mostly serve as access points to the status of EU citizenship. Besides, they provide their owners with a limited number of specific rights in deviation from the general principle of non-discrimination on the basis of nationality, and-what is probably more important for the majority of their owners-trigger legalised discrimination in the wholly internal situations. Viewed in this light, the requirement to have only one Member State's nationality enforced in national law by 10 Member States seems totally outdated and misplaced. This paper focuses on the legal analysis of this controversial requirement. [ABSTRACT FROM AUTHOR]

The concept of corporate social responsibility (CSR) emerged in the official discourse of the EU in 2000. This article explains how, while CSR may have been initially an idea about the scope of the responsibility of companies towards their environment, it has now become a process in which the representatives of the business community have come to occupy the main role, and whose purpose is to promote learning among business organisations, rather than to identify the components of a regulatory framework for CSR. The central question now, therefore, is whether the so-called ‘business case’ for CSR is strong enough, so that we may hope that the forces of market will suffice to encourage companies to behave responsibly, over and above their obligation to comply with their legal obligations. The article shows, however, that this case rests on certain presuppositions about markets and the business environment, which cannot be simply assumed, but should be affirmatively created by a regulatory framework for CSR. Following the introduction, it proceeds in four stages. First, it examines the development of CSR in the EU. Second, it offers a critical examination of the so-called ‘business case’ for CSR, taking into account the growing diversity within the enlarged EU. It then discusses, as an alternative, what a regulatory framework for CSR could resemble, highlighting a number of initiatives which have been taken in this regard by the EU. The article finally concludes that, since the failure of the European Multi-Stakeholder Forum on CSR in 2004, the debate has made a turn in the wrong direction, both because of the mistaken view that the establishment of a regulatory framework for CSR would threaten the competitiveness of European companies, and because of the naive (and contradictory) view that reliance on market mechanisms will suffice to ensure that corporations will seek to minimise the negative social and environmental impacts of their activities, even in circumstances where they are not legally obliged to do so. [ABSTRACT FROM AUTHOR]

EU action in the field of procedural rights in criminal proceedings was expected. The effects on procedural rights of the EU-propelled increase of repressive, cross-border efficiency with the application of the principle of mutual recognition could not fail to be noticed, and doctrinal opinion has been outspokenly critical of the current predominance of the ‘security’-element over the other two in the ‘area of freedom, security and justice’. Unfortunately, the proposed Framework Decision on certain procedural rights in criminal proceedings throughout the EU is a double failure: first, the Commission's methodological choices betray a cavalier attitude to the limits of EU competence in this area. Second, it is also a substantive failure in that the rights selected as being ‘so fundamental that they should be given priority at this stage’ do little to solve the problems actually besetting the application of the principle of mutual recognition in criminal matters. [ABSTRACT FROM AUTHOR]

This article challenges the widely diffuse view of family law as peripheral to private law. It aims to the de–marginalisation of family legal issues, by showing their ties to the market realm and freedom of contract. In this theoretical framework, the article analyses the process of family law harmonisation in Europe. In particular, it focuses on three steps or aspects in respect to which the presumed peculiarity of family law is proclaimed and reveals, at the same time, its groundlessness: the status/contract dichotomy as a reflection of the family/market divide which seems to influence future developments of the harmonisation of law in Europe; the presumed political character of family law, which represents the leitmotiv in most recent harmonisation projects; and the subsequent strictly national character of family law, which makes EC institutions much more cautious in intervening in these matters than in any other field of private law. [ABSTRACT FROM AUTHOR]