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(Series Information) European Papers - A Journal on Law and Integration, 2024 9(1), 275-286 | European Forum Insight of 15 July 2024 | (Table of Contents) I. Introduzione. - II. I fatti di causa, il contesto in cui il rinvio si colloca e le conclusioni dell’AG. - III. La sentenza della Corte: gli elementi di novità. - IV. Conclusioni: la valutazione positiva dell’approccio Getin Noble Bank e della sua successiva applicazione in L.G. | (Abstract) Until recently, it would have been tautological to say that the question of assessing independence did not arise when the preliminary ruling instrument was activated by a national judge: judges in the Member States were presumed to be independent. However, in the context of the rule of law backsliding, with the adoption of national laws aimed at undermining the guarantee of independence and making the judiciary subject not only to the law but also to the executive, the Court of Justice was obliged, in the Getin Noble Bank judgment, to limit this presumption in cases where there is a final judgment of a national court or of the ECHR which gives rise to a presumption of infringement of art. 19(1) TEU and art. 47 of the EU Charter. The L.G. judgment is a landmark decision, as it is the first time that the Court of Justice has overturned the “presumption of independence” on the grounds that the Polish Chamber for Extraordinary and Public Affairs cannot be considered a judicial body within the meaning of art. 267 TFEU, due to irregularities in the procedure for the appointment of its members. The aim of this Insight is twofold: firstly, to analyse the facts of the case, the context in which the reference is made, the arguments of the AG and the Court's decision, highlighting its new elements, especially in relation to ECHR jurisprudence; secondly, to examine the systemic impact of the judgment.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(1), 25-42 | European Forum Insight of 19 April 2023 | (Series Information) European Papers (News of dd month yyyy) | (Table of Contents) I. Introduction. - II. How did we get here? - III. What is the General Court supposed to get? - IV. When is a matter specific and exclusive? - V. When should the General Court refer the matter back to the Court of Justice? - VI. Which way, national courts? - VII. Conclusion. | (Abstract) The end of 2022 saw the publication of the proposal for reform of the preliminary ruling procedure, drafted by the Court of Justice of the EU. If the proposal goes through, it will bring about one of the most significant changes in the EU judicial system in its seventy years’ history. In this Insight, I start with an overview of the background to this reform proposal in order to provide the relevant context, before turning to its content. The focus is on specific areas of EU law in which the General Court would acquire jurisdiction in the preliminary ruling procedure. Then I discuss some downsides of the proposed distribution of powers between the Court of Justice and the General Court and suggest certain adjustments to the practice of the two courts to make the reformed preliminary ruling mechanism respond better to its objectives. Before concluding, I also reflect on the possible impact of the reform on the most numerous members of the EU judicial system – national courts.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1441-1464 | Article | (Table of Contents) I. Introduction – II. Cultural analysis, metaphor and the imageries of project and system – III. Autonomy and project and system in EU law – III.1. The EU legal order as the ECJ's project to create a system – III.2. The EU legal order as construction and body – III.3. Autonomy as the immanent principle of EU legal order – IV. The autonomy of EU legal order and the tension between project and system – IV.1. Autonomy and the presumed compatibility of telos, ethos and system – IV.2. The incompatibility of autonomy as project and system – V. Conclusion | (Abstract) This Article examines the understanding of EU legal order that underpins the concept of the autonomy of EU legal order. Building on the work of the American constitutional scholar Paul Kahn, this Article argues that the EU legal order can be understood as either project or system. From the perspective of project, the autonomy of EU legal order is the necessary means to realise the values and objectives the EU pursues, but from the perspective of system, the autonomy of EU legal order is an end in itself. By making this tension explicit, this Article hopes to cast doubt on the claim that autonomy operates in complete harmony with the telos the EU pursues and the ethos on which it is founded. Autonomy will only express a telos or ethos if these align with the preservation of the systemic integrity of the EU legal order. There thus exist no necessary relationship between the autonomy of the EU legal order and the objectives and values it pursues, but only a contingent one.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(2), 641-650 | Article | (Table of Contents) I. Protecting EU values: The state of affairs. - II. Protecting EU values: The debate. - III. The Special Section. - IV. The contributions. | (Abstract) This Article introduces the Special Section "Usual and Unusual Suspects: New Actors, Roles and Mechanisms to Protect EU Values" which collects four Articles originally presented at the NOVA workshop "EU Democracy and the Rule of Law" in June 2021. The four Articles all reflect of how the EU institutions may protect and promote the common values in the Member States, in particular in the context of the ongoing constitutional crises in Hungary and Poland, but looking also at the medium and long-term efforts the EU is called to put in place to prevent new crises and promote a stronger rule of law culture in the Member States and civil society. This Article serves to place the considerations offered in those four contributions against two backgrounds: the current and evolving state of affairs, in which democratic and rule of law questions seem to emerge more and more strongly; and the institutional and academic debate that has taken place in the last decade. We argue that the Articles of this Special Section bring an original and innovative perspective to the debate, showing that the EU response must be based on a combination of political, judicial and financial tools, and that the EU needs to both try to respond to ongoing crisis and construct a stronger toolkit for the future.

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(1), 319-329 | Insight | (Table of Contents) I. Introduction. - II. Jurisdictional sovereignty: a core element of an elusive concept. - III. EU autonomy as construed by the Court of Justice. - IV. Jurisdictional sovereignty of the EU as a legal construction. - V. Concluding reflections on the Court's autonomy conception in context. | (Abstract) Despite all rhetorical references to European sovereignty, the EU cannot make a convincing claim to sovereignty under international law. International law does not vest non-state actors with sovereignty. What the EU can do and what it also does is that it acts as if it was a sovereign entity and claims certain rights that are considered core elements of State sovereignty. This paper sheds light on the meaning of the notion of sovereignty in the specific context of the EU's external legal relations. It argues that the Court of Justice's conception of the autonomy of the EU legal order provides the EU de facto with a core element of State sovereignty, namely a form of (negative) jurisdictional sovereignty that otherwise only States can claim. Under international law, a State's exclusive right to decide what acts shall be given effect on its territory is virtually undisputed. It is the core of the external aspect of negative sovereignty and functions as an independent, overriding justification to keep external influences out. The Court's autonomy conception serves the same purpose. The Court's broad conception of external influences that could threaten the EU's autonomy has in the past jeopardized international cooperation plans of the political institutions of the EU. Yet, shutting out external interference is also a necessary precondition for positive sovereignty, i.e. the ability to determine one's own course of action as a polity, as well as democratic legitimacy.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(1), 465-480 | Article | (Table of Contents) I. Introduction. - II. The multilingual European Union law. - III. Guarantees of clarity in Union law. - IV. Common European legal discourse as a way to overcome relativism. - V. Conclusion. | (Abstract) The European Union as a supranational entity that unites many different legal systems, each with its own linguistic category and distinct legal vocabulary, presents unique challenges in legal translation of European legislation. This Article examines the process of legal-linguistic finalization of EU multi-lingual law and considers the difficulties arising from interpretation of EU acts in light of the linguistic diversity of the Union's 27 Member States. The inquiry reaffirms the importance of the role of the Court of Justice of the European Union to guarantee the uniform functioning of law. Joining the views of some leading researchers in the field, this Article defends the view that a shared European legal discourse is necessary to achieve clarity in European Union law.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(2), 507-525 | European Forum Insight of 25 July 2022 | (Table of Contents) I. Introduction. - II. The background. - III. The Court of Justice's judgments. - III.1. Legal basis. - III.2. The circumvention of Article 7 TEU. - III.3. Legal certainty. - IV. Bold but careful: On the Court's approach in the judgments. - IV.1. "The European Union must be able to defend those values...". - IV.2. "...within the limits of its powers as laid down by the Treaties". - V. Conclusion and the next steps. | (Abstract) In two parallel decisions delivered in February 2022, the Court of Justice has rejected the actions for annulment brought by Hungary and Poland against the new "Budgetary Conditionality Regulation". The Court has confirmed that the institutions used the correct legal basis (art. 322(1)(a) TFEU), that the Regulation does not circumvent the procedures of art. 7 TEU, and that it adequately guarantees legal certainty. The judgments of the Court use bold and explicit constitutional language, stating for example that the rule of law and art. 2 TEU values form the very identity of the Union. At the same time, the Court is much more careful when it analyses the more concrete questions on the legality of the Regulation. This shows the continuous mismatch between the constitutional relevance of the values of art. 2 TEU in the EU legal and political structure, and the concrete powers the EU and its institutions have to protect those values. Still very often, the institutions are forced to rely on indirect mechanisms to defend the values, as is the case with the Regulation under discussion, which is to be considered a budgetary tool rather than an explicit rule of law mechanism.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(1), 409-411 | Editorial | (Abstract) In spite of overflowing case law and an incessant scholarly debate, the doctrine of direct effect still delivers fresh surprises. The last in time is a mysterious tripartite statement included in Thelen Technopark, which, despite its unassuming tone, has the potential to subvert the constitutional dimension of the doctrine of direct effect. We do not know whether the dictum in Thelen Technopark was aimed to start a process of revision or whether we can dismiss it as an incidental passage which escaped from the pen of the Grand Chamber. But the Constitutional relevance of direct effect for the present state of the European legal order and for its possible future development should dissuade the Court from facile and dangerous experimentalism.

(Series Information) European Papers - A Journal on Law and Integration, 2021 6(3), 1397-1414 | Article | (Table of Contents) I. Introduction. - II. Four main categories of CJEU cases. - II.1. EMU and the euro and debt crisis in general. - II.2. Problems of multilevel decision-making. - II.3. Questions of liability and responsibility. - II.4. Issues relating to the Banking Union. - III. Concluding observations. | (Abstract) The main objective of this Article is to map and categorize the CJEU's case law relating to EMU. Although in purely quantitative terms, this is not a huge task, there are already enough relevant court rulings, up to 31 December 2020, to enable the establishment of a taxonomy distinguishing between four different categories of EMU-related case law. The first and foremost category will comprise cases dealing with the fundamentals of EMU, including clarifying the distinction between monetary policy and economic and other policies. This category includes a number of well-known cases of great political importance, such as Pringle ECLI:EU:C:2012:756, Gauweiler ECLI:EU:C:2015:400, Weiss ECLI:EU:C:2018:1000, Kotnik ECLI:EU:C:2016:570 and Florescu ECLI:EU:C:2017:448. A second category relates to the nature of the EU as a system of multilevel governance and the need to determine whether the competence to act is at national or Union level or a mix of the two. Cases in point include UK v ECB (security clearing) ECLI:EU:T:2015:133, Berlusconi ECLI:EU:C:2018:1023 and Rimšēvičs ECLI:EU:C:2019:139. A third group of cases relates to issues of responsibility and liability, including questions of the liability of "abnormal" EU bodies or settings such as the Troika or the Euro Group. Fourth, especially the Banking Union has triggered cases relating to prudential supervision and other more technical issues. This analysis will be completed by some concluding remarks, including the question of the intensity of judicial control (standard of review), viewing the EMU case law in a broader context.

(Series Information) European Papers - A Journal on Law and Integration, 2021 6(1), 527-532 | Article | (Abstract) This Introduction outlines the rationale and genesis of the research project that forms the basis for this collection of Articles, putting it into the context of recent interesting historical and sociological turns in EU law and Court of Justice-focused scholarship. It then identifies and offers initial reflections on a selection of horizontal themes which emerge from the study of individual case dossiers, including insights into legal argumentation, actors, institutions and procedures, as well as on the dossiers as an object of study, with the aim of reflecting on the ways in which use of the Court’s archives may enrich EU law scholarship, as well as on its limits and methodological challenges.

(Series Information) European Papers - A Journal on Law and Integration, 2021 6(1), 121-124 | European Forum Highlight of 22 April 2021 | (Abstract) In DJ v Radiotelevizija Slovenijia (case C-344/19 ECLI:EU:C:2021:182) and RJ v Stadt Offenbach am Main (case C-580/19 ECLI:EU:C:2021:183), the Court of Justice held that periods of stand-by time spent at home would not be considered working time within the meaning of art. 2 of the Working Time Directive 2003/88/EC unless the worker is constrained objectively and very significantly in their ability to manage their free time when their professional services are not required. The Court left it up to the national courts to decide whether the facts of the cases fell within or outwith the scope of art. 2. At a time when the boundaries between work and leisure time are increasingly blurred - a trend that has been accelerated by the Covid-19 pandemic - it is unfortunate that the Court did not use this opportunity to be more forthright in its assessment of what it means to be at an employer's disposal for the purposes of working time.

(Series Information) European Papers - A Journal on Law and Integration, 2021 6(1), 125-139 | European Forum Insight of 22 April 2021 | (Table of Contents) I. Introduction. - II. Defining deprivation of liberty in EU law. - III. The right to liberty and pre-trial detention in purely internal situations. - III.1. Measures of secondary EU law expression of the right to liberty. - III.2. Secondary EU law, the Charter and the indirect link with national provisions. - IV. The right to liberty and pre-trial detention in cross-border scenarios. - IV.1. General principles on the right to liberty and EAW procedures. - IV.2. The use of the Charter to oppose execution. - V. Conclusions. | (Abstract) As EU criminal law has expanded over the years, so have the opportunities for the application of relevant provisions of the EU Charter of Fundamental Rights. The present Insight analyses the situations where the right to liberty has become relevant to pre-trial detention in areas covered by EU rules. It critically discusses the gaps of protection existing in the current legal framework, and puts forward practical solutions to achieve better protection of the right to liberty.

(Series Information) European Papers - A Journal on Law and Integration, 2017 2(1), 93-115 | Article | (Table of Contents) I. Introduction. - II. The origins of "mutual trust" as a concept of EU law. - II.1. In Court of Justice case law. - II.2. In legislative documents. - III. Mutual trust v. mutual recognition. - III.1. Mutual recognition and mutual trust: meaning and relationship. - III.2. No obligation of blind mutual trust: conditions and limitations. - IV. Importance of the mutual trust principle for the internal market. - IV.1. Mutual trust in the internal market. - IV.2. Mutual trust as a constitutional principle. | (Abstract) The principles of mutual trust and mutual recognition are often mentioned together, and sometimes even equated. This paper argues that they are distinct but interconnected principles and that mutual trust is the more fundamental of the two. On the one hand, the paper tries to shed more light on the origins, the meaning and scope of the principle of mutual trust, but also on its relationship with the principle of mutual recognition. On the other hand, it examines the importance of the mutual trust principle in the context of the internal market. It is argued that the elevation of the principle of mutual trust to a constitutional principle in recent Court of Justice case law regarding the Area of Freedom, Security and Justice can and should have a positive impact on the functioning of EU law in this field.

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(3), 1251-1269 | Article | (Table of Contents) I. La question de l'indépendance des juges et des procureurs. - II. L'indépendance comme exigence primordiale pour la coopération judiciaire pénale. - II.1. Une garantie essentielle pour la protection des droits fondamentaux. - II.2. Un gage de confiance mutuelle entre autorités judiciaires. - III. L'indépendance comme exigence conditionnant l'exécution d'un MAE: les limites posées à la confiance mutuelle entre États membres. - III.1. Un risque réel de violation du droit fondamental à un tribunal indépendant justifiant l'inexécution d'un MAE: l'arrêt LM. - III.2. Un lien de subordination à l'égard de l'exécutif non nécessairement invalidant pour l'émission d'un MAE: l'arrêt OG et PI et ses suites. - IV. Conclusion. | (Abstract) As a core requirement of the fundamental right to a fair trial, judicial independence is of fundamental importance to ensure the proper conduct of criminal procedure and to uphold the rule of law. In this respect and despite their distinctive status, it is essential that national judges and prosecutors can act without influence during their mission. The requirement of independence has recently received increasing attention at EU level, notably in the context of the European Arrest Warrant mechanism following a series of preliminary rulings. This Article analyses the requirement of independence in the light of recent Court of justice rulings concerning judges and prosecutors, two key players in the criminal procedural law and judicial cooperation in criminal matters.

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(2), 871-886 | Article | (Table of Contents) I. Introduction. - II. National court opinion in the preliminary reference procedure. - III. Methods and material. - IV. Results. - IV.1. Active courts: motivations for expression opinions. - IV.2. Passive courts: motivations for not expressing opinions. - V. Passive high court judges? - VI. Concluding discussion. | (Abstract) What motivates national judges to be either active in the preliminary reference procedure by expressing opinions in the requests they send to the Court of Justice or passive by not voicing their views? This Article sheds light on how national judges perceive the possibility of framing the cases they refer to the Court, for instance, by expressing an opinion in defence of the challenged national law. Based on interviews with Swedish judges, this Article shows that the respondents express opinions to provide the Court with information and to influence the development of EU law. The Article also uncovers what motivates national judges not to express opinions. These three previously untheorised motivations are: 1) protecting one's reputation, 2) respecting the division of competences between the Court and national courts and 3) upholding the impartiality of the courts. Furthermore, the findings indicate that high court judges in particular are opposed to the inclusion of opinions in a request. In contrast, most of the interviewed lower court judges view the inclusion of opinions in the requests as practically mandatory. This Article proposes that this difference in attitudes towards opinions between high and low court judges originate from variations in professional norms regarding what constitutes appropriate behaviour.

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(2), 777-797 | Article | (Table of Contents) I. Introduction. - II. A European opportunity structure. - III. Lawyers and references: an unexpected task. - III.1. Allocating resources. - III.2. Going to Luxembourg. - III.3. Legal aid and references. - III.4. Lawyers' motivation. - III.5. The "language" of EU law. - III.6. The significance of the hearing. - III.7. The ways of the court. - III.8. Coping strategies. - IV. Macro effects of the allocation of Eurolaw expertise. - V. Conclusions. | (Abstract) The preliminary reference procedure is often credited as the engine behind European integration. Until very recently however, the role of lawyers in this parable of law-led political unification has remained relatively unexplored. As a result, we still lack empirical insight into the day-to-day on-the-ground practice of "doing EU law" by legal professionals that represent parties before the European Court of Justice. Without an exclusive focus on highly transformative, salient, or "landmark" cases, and opting instead for a bottom-up approach, this Article looks at the everyday practice of references to the European Court of Justice from the perspective of the legal practitioners that litigate these cases. This Article draws on interviews with lawyers that have assisted individual litigants in preliminary reference procedures and presents an empirical exploration into the everyday context in which legal practitioners work on preliminary references cases. The central question this Article aims to answer is: How do lawyers deal with the challenges of representing individual parties in preliminary references cases? The findings underscore how the effective use of the preliminary reference procedure is reserved largely for organisations and "strategy entrepreneurs" with the necessary credentials, means, and expertise. On the one hand, it provides possibilities for "trumping" the domestic legal system whenever supranational legislation provides opportunities against national policy or legislation; on the other hand, in terms of access to justice and as a form of remedy, the preliminary reference procedure remains a difficult "sword" to yield.

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(2), 887-910 | Article | (Table of Contents) I. Introduction. - II. Conceptual framework and terminology. - III. Data and research design. - III.1. The dataset. - III.2. Research process. - IV. The Court's behaviour. - V. The Court's strategies. - VI. Conclusions. | (Abstract) Recent cases of national court rebellion against the rulings of the EU Court of Justice have raised questions about the meaning of judicial cooperation within the preliminary reference procedure. Although tensions are inevitable, the trust of Member State judiciaries is crucial for the dissemination and enforcement of the Court's rulings. This Article uses legal empirical method to study how the Court cultivates its relationship with national courts. Specifically, it examines the reasoning and drafting style of the Court of Justice when it delivers a judgment that conflicts with the referring court's view, as expressed in the order for reference, on how the questions ought to be resolved. The findings indicate that disagreement with the referring court affects the Court's drafting and justification choices. In particular, the Article identifies two strategies that the Court resorts to when rejecting the view taken by a referring court: conflict avoidance and appeal to (illegitimate) authority. It is argued that these strategies are not conducive to furthering the judicial cooperation that the Court claims to be engaged in, nor to the legitimacy of its judgments within the Member States.

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(3), 1463-1476 | European Forum Insight of 25 November 2020 | (Table of Contents) I. Introduction. - II. Dual preliminarity after decision 269/2017: taking fundamental rights differently. - III. The main proceedings in order 182/2020. - IV. The main proceedings in order 182/2020. - V. An expanded scope for the CC's dual preliminarity competence? - VI. The evolving approach to the preliminary ruling procedure. - VII. The choice of the parameters for constitutional review. | (Abstract) The Insight discusses order 182/2020 of 30 July 2020 of the Italian Constitutional Court against the background of the latter Court's approach to dual preliminarity inaugurated in decision 269/2017. It argues that the order confirms an expansionist trend as regards the scope of the Court's competence in cases concerning the violation of fundamental rights granted both by the Constitution and the Charter of Fundamental Rights of the European Union. At the same time, however, the order is permeated by a spirit of loyal and constructive collaboration with the Court of Justice, which emerges, notably, from the approach to the preliminary ruling procedure.

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(1), 347-362 | European Forum Insight of 2 June 2020 | (Table of Contents) I. Introduction. - II. The "reforms" of the national council of judiciary and the Supreme Court. - III. The Court of Justice judgment. - IV. The EU-friendly face of the Supreme Court. - V. The restrained face of the Supreme Court. - VI. Conclusions. | (Abstract) The present Insight compares the decisions of two chambers of the Polish Supreme Court regarding the domestic enforcement, under the terms laid down in the Polish Constitution, of a judgment of the Court of Justice, the independence of the judicial branch and the consequences of a judicial appointment. The starting point for the analysis is an overview of recent reforms of judiciary in Poland and the judgment of the Court of Justice in A.K. (Indépendance de la chambre disciplinaire de la Cour suprême) [GC] (judgement of 19 November 2019, joined cases C-585/18, C-624/18 and C-625/18). The first discussed ruling of the Supreme Court aimed to fully enforce that judgment of the Court of Justice, whereas the second sought to limit its actual impact.

(Series Information) European Papers - A Journal on Law and Integration, 2019 4(2), 563-572 | Dialogue | (Table of Contents) I. Introduction. - II. From rights to policies and the interplay between legislation and case law. - III. Ordinary versus constitutional legislation. - IV. Is EU law over-constitutionalised? - V. Conclusion. | (Abstract) The influence of the Court of Justice in the evolution of equality law has been enormous. Interpreting rights provided in EU legislation as mere expressions of pre-existing constitutional rights, as the Court of Justice did in Mangold (judgment of 22 November 2005, case C-144/04 [GC]) and Kücükdeveci (judgment of 19 January 2010, case C-555/07 [GC]), poses challenges to majoritarianism and carries the risk of ossification. Although such mirroring of legislative and constitutional rights has recently been extended beyond the right to equal treatment, whether EU law is over-constitutionalised remains an open question. EU law is remarkably malleable and constitutionalisation coexists with indeterminacy and deference to the legislature.

(Series Information) European Papers - A Journal on Law and Integration, 2016 1(1), 55-66 | Article | (Table of Contents) I. Introduction. - II. Mandatory respect for EU fundamental rights in CFSP. - II.1. CFSP as distinct framework embedded in the EU legal order. - II.2. Horizontal obligation to respect fundamental rights in the EU. - II.3. Mainstreaming fundamental rights in CFSP decision-making. - III. Derogatory enforcement of EU fundamental rights in CFSP. - III.1. Limited ECJ jurisdiction in CFSP: an exception to the rule. - III.2. Broad exercise of limited ECJ jurisdiction. - IV. Complementary national enforcement of EU fundamental rights in CFSP. - IV.1. Member States' courts as EU courts. - IV.2. Practical implications of Member States' courts involvement in reviewing CFSP. - V. Concluding remarks. | (Abstract) This paper examines how fundamental rights are protected in the specific context of the EU Common Foreign and Security Policy, against the backdrop of the European Court of Justice's Opinion 2/13 on the EU accession to the ECHR. As any area of EU law, the CFSP must be implemented in compliance with EU fundamental rights. The jurisdiction of the European Court of Justice plays a critical if limited part in ensuring such compliance, which Member States' judiciaries complement, acting as "guardians of (the) legal order and the judicial system of the (EU)". Such a mixed judicial control over the CFSP derives from the Court's established case law, as well as from the Treaty of Lisbon, and the deeper integration of the CFSP in the EU legal order that it envisages.

(Series Information) European Papers - A Journal on Law and Integration, 2019 4(1), 123-126 | Article | (Abstract) The Special Section investigates, from a multidisciplinary perspective, foundations, tools and implications of regulatory competition in the EU legal order. The analysis takes the view that regulatory competition is not just an inevitable corollary of the creation of the internal market, but it is the result of political choices made to pursue specific policy objectives. Moving from different analytical angles, it sheds more light on the dangers that the choice to promote regulatory competition poses for the constitutional identity of the EU. The Special Section is composed by two main parts. The first one offers an in-depth examination of the complex relationship between the European integration process and regulatory competition, exploring its historical and conceptual foundations, as well as critically engaging with its implications on the EU constitutional architecture. The second one builds on these analytical findings and, in particular, on the idea that regulatory competition is the by-product of political choices made by supranational institutions. These choices, and the institutional dynamics underneath, vary from sector to sector. The Articles composing this second part look both at fields where EU law acted as a facilitator of regulatory competition and at fields where it functioned as a buttress against it or, at least, some of its most heinous effects.

(Series Information) European Papers - A Journal on Law and Integration, 2018 3(3), 1333-1352 | Article | (Table of Contents) I. Introduction. - II. EU citizens and their family members: "autonomous" vs. "derived" residence rights. - III. Residence rights enjoyed by EU citizens as inalienable rights? - III.1. Residence rights of UK nationals and their family members in the EU27. - III.2. Residence rights of EU27 citizens and their family members in the UK. - III.3. Intermediary conclusion. - IV. Brexit and residence rights: an essential issue for any negotiated solution. - IV.1. Changing citizenship statuses at the EU level. - IV.2. Preserving residence rights for EU27 citizens/UK nationals and their family members. - V. Concluding remarks. | (Abstract) One of the fundamental pillars of the European Union is the right of EU citizens and their family members to move freely between and reside in the different EU member States. In recent case law, the Court of Justice has made it abundantly clear that EU citizens derive these rights directly from their EU citizenship status, whereas their family members have only "derived" residence rights, which are dependent on the EU citizen having exercised his freedom of movement. The impact of Brexit on the free movement of persons between the UK and the remaining EU Member States has remained one of the most controversial and politically sensitive issues ever since the British people voted to leave the EU. This Article tries to shed some light on the legal arguments underlying this debate. On the one hand, it provides an overview of a number of arguments deriving from EU law or international law on the basis of which, according to some scholars, EU citizens and their family members would continue to enjoy the residence rights attached to citizenship after Brexit. On the other hand, it will analyse a number of legal principles which would, according to some scholars, have to be respected by any withdrawal agreement between the EU27 and the UK and which, arguably, provide a basis for continued residence rights after Brexit.

(Series Information) European Papers - A Journal on Law and Integration, 2019 4(1), 271-283 | European Forum Insight of 12 February 2019 | (Table of Contents) I. Introduzione. - II. La riforma della Corte suprema della Polonia: le immediate reazioni. - III. L'evoluzione della procedura ex art. 7, par. 1, TUE e l'apertura della pronuncia di infrazione contro la Polonia. - IV. Le pronunce cautelari della Corte di giustizia. - V. La voce della Corte e i richiami alla Polonia. - VI. Considerazioni conclusive. | (Abstract) The mechanism set up by Art. 7, para. 1, TEU has been activated against Poland on 20 December 2017. Nevertheless, Poland did not comply with the recommendations given by the European Commission, focused on the lack of judicial independence due to a recent reform that provoked the forced anticipated retirement of 27 judges sitting in the Polish Supreme Court. Consequently, the Commission launched an infringement procedure against Poland and referred this Member State to the Court of Justice, in order to protect the independence of the Polish Supreme Court (case C-619/18). With two orders given in this case, the Court of Justice highlights, as already underlined in ASJP (case C-64/16) and LM (case C-216/18 PPU), the close link between the rule of law - one of the fundamental values listed by Art. 2 TEU - and Art. 19 TEU. Moreover, the analysis aims to underline the possibility to use the infringement procedure (Art. 258 TFEU) as a powerful (and efficient) tool to protect fundamental values in the ongoing rule of law crisis.

(Series Information) European Papers - A Journal on Law and Integration, 2018 3(2), 693-732 | Article | (Table of Contents) I. Introduction. - II. Explaining the paradox: The historical limitations on European "social integration" as a counter-balance to the internal market. - II.1. The traditional European/national divide in the economic/social dichotomy: social progress as a by-product of economic integration. - II.2. Expanding the market freedoms into the domestic social space. - II.3. Unfit for purpose: the structural prioritisation of free movement and the fallacy of the economic/social dichotomy. - II.4. Contributing to a legitimacy deficit? - III. "Social Europe": maintaining the artificial boundaries of social and economic integration. - III.1. The emergence and evolution of social integration as a (constrained) independent Union aim. - III.2. Limits on social integration resulting from the economic/social dichotomy. - IV. Free movement as a sword to access the domestic social space: European social integration via the negative processes of the internal market. - V. Restricting free movement rights: "social integration" as an individual duty and Court of Justice-endorsed Member State shield. - V.1. Scaling back on social integration via free movement and concretising social integration as an individual duty. - V.2. Undermining the Union's social aims. - V.3. Sacrificing equal treatment in vain: the ongoing question mark over European integration. - VI. Legitimising the European social space through an holistic approach to the Treaties. - VI.1. The post-Lisbon call for an holistic approach to economic and social integration. - VI.2. The emergence of a new adjudicative approach. - VII. Conclusion. | (Abstract) Social integration is often depicted as a means of enhancing the Union's legitimacy. Most recently, a reinvigorated "social Europe" has been back on the agenda following the United Kingdom's Brexit vote. And yet, ironically, the EU citizenry often appears resistant to the very mechanisms that seek to make the Union about its people rather than the market. To explore this phenomenon, this Article conducts a much-need historical analysis of the concept of "social integration" within the EU legal order. The investigation identifies the operation of an economic/social dichotomy operating across European/national dividing lines, established by the Rome Treaty. As the market freedoms expanded, coming into ever-more frequent contact with domestic social policies, this dichotomy ultimately proved to be a myth. And yet, the legacy of the economic/social dichotomy has been not only to leave national social policymaking structurally disadvantaged when it clashes with the market freedoms but to constrain the Union's capacity to offer social integration as a counter-balance to the deregulatory effects of the internal market at the supranational-level: European social policymaking is conceptualised as further interference with the traditionally national social sphere. Efforts to pursue social integration, instead, via the mechanisms of the internal market through Union citizenship have also been inherently limited by its market origins. Indeed, as the political winds have changed, "social integration" has been converted from a Union "aim" into an individual duty of economic activity in that context. This undermines the Union's contemporary social aims, whilst doing little to address perceived Euroscepticism. Instead, a further model of social integration is needed; one which sees domestic and Union activities as jointly contributing to a shared constitutional social space and which is realised through a new method of adjudication that structurally recognises the significance of social goals in the present-day Union.

(Series Information) European Papers - A Journal on Law and Integration, 2018 3(2), 469-473 | Editorial | (Abstract) On 12 September 2018, two events occurred, both with considerable legal and political implications, and seemingly inspired by different conceptions about the role of European fundamental values and principles. The first event is a resolution adopted by the European Parliament - on the basis of a large majority - calling upon the Council to determine the existence of a clear risk of a serious breach by Hungary of the fundamental values of the Union - the so-called preventive procedure established by Art. 7, para. 1, TEU (P8_TA-PROV(2018)0340). The second event is the order in joint cases C-208/17 P to C-210/17 P, NF and Others v. European Council, by which the Court of Justice declared the appeals lodged against the three orders of the General Court of 28 February 2017 manifestly inadmissible, which, in turn, had declared as inadmissible three actions for annulment against the EU-Turkey Statement of 18 March 2016 (see case T-192/16, NF v. European Council; case T-193/16, NG v. European Council; case T-257/16, NM v. European Council: hereinafter, NF). There is no relation, of course, between these two events, that only by accident must have occurred on the same date. Their only connecting factor lies in the diverse, perhaps opposite, conception of the inspiring principles of the process of integration in Europe. On 12 September 2018, the European Parliament embraced the fundamental values of Europe as its own mission and brandished its democratic legitimacy as a sword against the popular legitimacy that, hélas, supports the path towards illiberal democracy. On the same date, the Court of Justice abstained from unveiling the mysteries that still surround one of the most controversial instruments of the Union's migrant policy; by so doing, it abdicated its role as ultimate custodian of the principles and values of the process of European integration. These two events symbolise how fragile and inconsistent the conduct of the various actors of this process may be. At the same time, they remind us of the need to maintain firmly the fundamental values, common to the EU and to its Member States, as the only polar star to navigate the troubled waters of integration.

(Series Information) European Papers - A Journal on Law and Integration, 2018 3(2), 857-873 | European Forum Insight of 25 July 2018 | (Table of Contents) I. Introduction. - II. Political dimension of the principle of mutual trust. - III. Context of the referral. - IV. The CJEU's and national courts' lack of competence to assess Member States' compliance with the rule of law. - V. The CJEU's and national courts' competence to review Member States' compliance with fundamental rights. | (Abstract) This Insight comments on the recent referral for a preliminary ruling by the Irish High Court Minister of Justice and Equality v. Celmer (judgment of 12 March 2018, no. 2017 EXT 291) in the case concerning a Polish citizen sought by the Republic of Poland pursuant to the European Arrest Warrant. The key problem relates to the question whether a violation of the principle of rule of law, as established by a Member State's court, may constitute a sufficient justification for the non-execution of the Arrest Warrant. As the judgment of the CJEU is pending, the authors present their opinion on the issue at stake. Analysing it from the perspective of the principle of mutual trust, which constitutes the foundation of the EU's Area of Freedom, Security and Justice, they argue that the conditions for the suspension of the Arrest Warrant should be interpreted in a restrictive manner and any attempt of assessing a Member State's compliance with the rule of law by the Court of Justice or other Member States' courts should be considered an ultra vires act.

(Series Information) European Papers - A Journal on Law and Integration, 2018 3(2), 1017-1026 | European Forum Insight of 24 June 2018 | (Table of Contents) I. The facts of the case. - II. The "Brexit point". - III. The Government's position. - IV. Why is this preliminary ruling relevant?V. The current negotiations. - VI. Conclusions. | (Abstract) The Irish Supreme Court (IESC) decided to lodge a request for a preliminary ruling with the CJEU in Minister for Justice v. O'Connor on February 1st. The IESC enquired the CJEU about the possibility of surrendering individuals to the UK who will be imprisoned beyond the date on which this country will withdraw from the EU. The doubts arise, in this case, due to the uncertainty surrounding the legal framework applicable after this date. This preliminary ruling could have important ramifications for the functioning of the European Arrest Warrant (EAW) in a post-Brexit scenario and until a bilateral agreement between the EU and the UK is concluded. The goal of this Insight is to analyse some of these implications, especially in connection with the protection of fundamental rights amid the uncertainty concerning the guarantees applicable after Brexit, and to examine impact of this case within the wider EAW scheme.

(Series Information) European Papers - A Journal on Law and Integration, 2018 3(1), 357-373 | European Forum Insight of 30 May 2018 | (Table of Contents) I. The "context". - II. The background of the case. - III. The Court of Justice sticks to its case law. - IV. Achmea and the court's case law on other international tribunals. - IV.1. A real risk of interpreting and applying EU law. - IV.2. Setting new limits for Art. 344 TFEU. - IV.3. Not a "court or tribunal of a Member State" under Art. 267 TFEU. - IV.4. Nothing on Art. 18 TFEU. - V. Achmea and its implications for the EU's investment law and policy. - V.1. What about ISTs with Third Countries? - V.2. What about pending and future arbitral proceedings? - VI. Conclusions. | (Abstract) In the much-awaited Achmea judgment (of 6 March 2018, case C-284/16 [GC]), the Court of Justice held that investor-state tribunals (ISTs), "such as" the one under the Netherlands-Slovakia intra-EU bilateral investment treaty (BIT) are incompatible with EU law. In this arguably short judgment, the Court of Justice consolidated its attitude towards the relationship between other international courts and the EU legal order; it set new limits to Art. 344 TFEU; and, it expanded its list of tribunals that do not qualify as Member State courts or tribunals under Art. 267 TFEU. Nonetheless, whilst the Commission can rejoice that it can now clearly oblige Member States to terminate their intra-EU BITs, Achmea sends some worrying signals. The future of ISTs under Member State BITs with third countries is uncertain; so is the viability of the Investment Court System under the agreements with Canada and Vietnam, the future of the Multilateral Investment Court, and the overall coherence of the EU's international investment law and policy.

(Series Information) European Papers - A Journal on Law and Integration, 2018 3(1), 433-444 | European Forum Insight of 19 March 2018 | (Table of Contents) I. Introduction. - II. The relevant law, the facts, and the questions referred to the Court of Justice. - III. The opinion of AG Bot. - IV. The judgment. - V. Some thoughts on the principle of social rehabilitation of offenders in the case law of the Court of Justice and the European Court of Human Rights. - VI. Conclusion. | (Abstract) This Insight provides an analysis of the first preliminary ruling (Court of Justice, judgment of 21 September 2017, case C-171/16, Beshkov) concerning some provisions of the Council Framework Decision 2008/675/JHA of 24 July 2008 on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings. The Court of Justice was asked: a) to interpret the concept of "criminal proceedings" within the meaning of the Framework Decision; b) to explain whether or not this expression had to be connected to a finding of guilt; c) to make clear whether the procedure for taking into account a previous conviction could be initiated only by the Member State or also by the convicted person; and d) to point out the consequences that taking into account previous convictions could have on the manner of execution of a foreign judgment. In this context, AG Bot recalled the notion of social rehabilitation of offenders as a principle inspiring the Framework Decision that should have been considered in order to answer at least one of the questions referred to the Court. As the Court did not take it into consideration, the purpose of this Insight is to identify a possible interpretative path the Court might follow to acknowledge the social rehabilitation of offenders as a general principle of EU law.

(Series Information) European Papers - A Journal on Law and Integration, 2017 2(2), 759-766 | European Forum Insight of 22 July 2017 | (Table of Contents) I. Introduction. - II. Dispositions applicables à toutes les demandes de décision préjudicielle. - II.1. L'auteur de la demande de décision préjudicielle. - II.2. L'objet et la portée de la demande de décision préjudicielle. - II.3. Le moment approprié pour opérer un renvoi préjudiciel. - II.4. La forme et le contenu de la demande de décision préjudicielle. - II.5. Les interactions entre le renvoi préjudiciel et la procédure nationale. - II.6. Les dépens et l'aide juridictionnelle. - II.7. Les échanges entre la Cour et la juridiction nationale. - III. Dispositions applicables aux demandes de décision préjudicielle nécessitant une célérité particulière. - III.1. Les conditions d'application de la procédure accélérée et de la procédure d'urgence. - III.2. La demande d'application de la procédure accélérée ou de la procédure d'urgence. - III.3. Les échanges entre la Cour, la juridiction de renvoi et les parties au litige au principal. | (Abstract) The latest version (published on the 25 November 2016) of the recommendations of the Court of Justice of the European Union to national courts and tribunals, in relation to the initiation of preliminary ruling proceedings, is the actualisation of the former version of 2012. This new version introduces little change, in both the substance and the style, except for a few interesting precisions.

(Series Information) European Papers - A Journal on Law and Integration, 2017 2(1), 393-401 | European Forum Insight of 11 April 2017 | (Table of Contents) I. The Ognyanov case. - I.1. The facts and the preliminary reference. - I.2. The decision of the Court of Justice. - I.3. Why a Grand Chamber? - II. Preliminary references as an instrument of control of the domestic application of EU law. - III. Legal and factual context as a criterion of admissibility of preliminary references. - IV. Preliminary references and fundamental rights. - V. Concluding Remarks. | (Abstract) In Ognyanov (judgment of 5 July 2016, case C-614/14), the Court of Justice held that Bulgarian courts have to set aside a national rule aimed at protecting fundamental rights of the parties that has the effect of automatically disqualifying a court that refers questions for a preliminary ruling along with the factual and legal context of the case. The rules of procedure of the Court of Justice regard the factual and legal context of the case as a constitutive element of preliminary references. Knowledge of the facts of the case and the applicable national law allows the Court of Justice to control the domestic application of EU law. Failure to include an accurate factual and legal context of the case is a ground for the declaration of the manifest inadmissibility of a preliminary reference by the Court of Justice. The factual and legal context of a criminal case may, however, be drafted in such a way that compromises the impartiality of the court and the presumption of innocence of the accused.

(Series Information) European Papers - A Journal on Law and Integration, 2017 2(1), 321-327 | European Forum Insight of 29 March 2017 | (Table of Contents) I. Introduction. - II. The legal and factual background of the case. - III. The power of national courts to maintain in force national provisions in breach of EU law: mitigating the supremacy of EU law in the environmental protection sector. - VI. The expanded application of the Inter-Environnement case law in Association Nature France Environnement. - V. CILFIT revisited? - VI. Conclusion. | (Abstract) In Association France Nature Environnement (judgment of 28 July 2016, case C-379/15), the Court of Justice dealt with two issues. First, is it possible for national courts to limit the effects of a judicial decision annulling national law contrary to EU law in the field of environmental protection? Second, are national courts obliged to make a preliminary reference to the Court of Justice in case of doubts on the possibility to postpone the temporal effects of a judgment annulling national law contrary to EU law? This judgment expands the Inter-Environnement Wallonie case law by granting to national courts further leeway to maintain in force the national legislation in breach of EU law. At the same time, it also expands the CILFIT case law.