Search

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(1), 349-352 | What Should Have Said | (Abstract) This preface to the new series What ... Should Have Said: Rewriting Landmark Judgments of the European Court of Justice introduces the project and its rationale. Legal scholars typically critically analyse court judgments so as to provide a ‘soft power based’ check on judicial reasoning and provide doctrinal and normative guidance for courts in future cases. Notwithstanding the merits of legal scholarship, especially scholarly critiques of case law invites the question of how these scholars concretely would have decided the respective cases. What ... Should Have Said provides a new way of ‘doing EU law’ by asking both junior and senior EU legal scholars to literally rewrite landmark judgments of the European Court of Justice.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(1), 363-372 | What Should Have Said | (Abstract) This rewriting of Keck and Mithouard is based on three categories of measures having equivalent effect: (1) national measures which disadvantage imported goods, (2) product requirements and (3) indistinctly applicable measures capable of substantially impeding the access of goods to a Member State market. Thus, instead of the category of national measures relating to certain selling arrangements, Nachtnebel, Langrée and Rodger's judgment emphasises that national measures which do not discriminate directly or indirectly, and which do not qualify as 'product requirements' in the sense of Cassis de Dijon, must substantially impede market access in order to qualify as measures having equivalent effect. The resulting judgment roughly follows the approach of Advocate General Jacobs in Leclerc-Siplec.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(1), 353-362 | What Should Have Said | (Abstract) The European Court of Justice's judgment in Keck and Mithouard is one of the crucial judgments in the development of the free movement of goods, and EU internal market law more generally. Keck generated a vast number of scholarly commentaries. Its legacy has continued to be widely debated following more recent judgments including Commission v Italy (trailers) and Deutsche Parkinson Vereinigung. This introduction aims to briefly revisit the developments leading to the Keck judgment, the central parts of the Court's reasoning, and its legacy in subsequent case law. It will conclude with a brief introduction to the four rewritings in this issue.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(1), 393-403 | What Should Have Said | (Abstract) This rewriting of Keck and Mithouard unequivocally states that the French prohibition on sale at a loss is a measure having equivalent effect, and relies to this effect on the Oosthoek line of case law. Gormley's judgment aims to closely follow the logic of earlier case law, including the Sunday trading case law. The judgment also concludes that a general prohibition of sale at a loss is contrary to Article 30 EEC. Insofar as such a general prohibition takes no account of the reason why the products are offered at a loss, it goes beyond what is necessary and proportionate to ensure fair trading and the protection of consumers. Also in regard to proportionality, the judgment aims to strictly follow the 1980s case law, starting with Cassis de Dijon.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(1), 385-391 | What Should Have Said | (Abstract) This rewriting of Keck and Mithouard maintains the basic underlying philosophy of the Keck judgment but dispenses with the terminology of ‘certain selling arrangements’. Enchelmaier’s judgment squarely overturns the Sunday trading case law by stating that Member States ‘need not justify rules that apply equally in law, and do not entail greater factual burdens for imported than for domestic goods’. The judgment allows for only one exception to this rule, namely that ‘universal bans’ – i.e. national measures prohibiting the marketing of a type or types of product altogether – must be justified because they raise legislative frontier to trade contrary to what is now Article 26(2) TFEU.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(1), 373-383 | What Should Have Said | (Abstract) This rewriting of Keck and Mithouard aims to retain the ‘spirit’ of Keck without resorting to categorising national measures into ‘product requirements’ and ‘certain selling arrangements’. The judgment is informed by Senn and Nussbaum’s capability approach and a social justice perspective on the free movement of goods. To this effect, Schøyen’s judgment affirms that only national measures which either negatively impact the competitive position of goods from other Member States or prevent their market access altogether require justification. Thus, the judgment clarifies that product requirements in the sense of Cassis de Dijon are measures having equivalent effect because they impose a double burden on foreign producers. The Sunday trading case law, by contrast, is overturned, like in Keck itself.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(3), 1431-1446 | Article | (Table of Contents) I. Introduction. - II. The development of European consumer protection policy. - III. The limits of art. 12 TFEU. - IV. Coordination between consumer and environmental policy: a new avenue to activate art. 12 TFEU? - IV.1. The 2020 Consumer agenda. - V. Conclusion. | (Abstract) The integration clause contained in art. 12 TFEU has been rarely invoked in European policymaking. This is due to the generic language adopted by the EU legislator, who does not impose an obligation on the EU bodies to integrate consumer protection in other Union policies or on Member States, thus reducing the justiciability of the provision. Compared to other TFEU provisions dedicated to consumer protection, the strength of art. 12 TFEU seems extremely low. However, art. 12 TFEU may come in handy in the development of a more sustainable economy in which the interests of consumers are not only focused on strengthening the internal market but also on safeguarding the environment and reducing industrial waste. This Article evaluates whether and how art. 12 TFEU may impact the choices of European bodies on the circular economy, the European Green Deal and the re-cent Consumer Agenda strengthening the role of consumers in the green transition.

(Series Information) European Papers - A Journal on Law and Integration, 2021 6(3), 1505-1521 | Article | (Table of Contents) I. Introduction. - II. Objectives in documents. - III. Legislative momentum. - IV. Legislative process and content. - V. Conclusion. | (Abstract) Capital Markets Union (CMU) is a plan towards a single market for capital in the EU. While the plan is not limited to the euro area, some of its stated objectives are aimed at supporting EMU, especially by financial stability through private risk-sharing. The present Article seeks to specify and clarify these EMU objectives. It points out their expressions in official documents, discusses their role in creating legislative momentum for CMU and its individual initiatives, and observes them in the legislative process and content of selected initiatives. The research results include an explanation of the significance of EMU objectives as arguments in debates and decision-making concerning CMU as well as an assessment of their justificatory force.

(Series Information) European Papers - A Journal on Law and Integration, 2021 6(1), 293-309 | Article | (Table of Contents) I. Economic and social rights and the European integration process. - II. Promoting economic and social rights within the internal market through the recognition of horizontal effects of the Charter: limits and caveats. - III. New challenges in the promotion of economic and social rights through the Charter's effects in horizontal disputes. - IV. Shaping the future of the European Union through enforceability of the Charter's economic and social rights. | (Abstract) This Article aims to ascertain the role of the Charter of Fundamental Rights in promoting economic and social rights within the internal market through an analysis of its applicability in horizontal disputes. Recognition of the horizontal effects of fundamental rights can ensure a minimum level of social justice in relations between individuals, help overturn the division between political and social rights in the Charter and promote an appropriate balance between the market and the social. In a series of rulings in 2018 on paid annual leave, the Court of Justice of the European Union attempted to clarify the legal relationship between the rights enshrined in the Charter and the directives on which those rights are based, and admitted the possibility of relying on certain rights conferred by the Charter in disputes between private parties. In particular, in Bauer and Max-Planck, the Court argued that art. 31(2) of the Charter, is of a mandatory and unconditional character and sufficient in itself to confer on workers a right to be invoked in horizontal disputes in a field covered by EU law. Recent CJEU case law has recognised horizontal direct effects to a Charter's right outside the scope of the principle of non-discrimination, thus opening a new path to enforcement of the economic and social rights in the internal market and to shaping the future of the European Union through reiteration of its social values and objectives.

(Series Information) European Papers - A Journal on Law and Integration, 2021 6(1), 57-67 | European Forum Insight of 14 April 2021 | (Table of Contents) I. Propos introductifs et objet de la controverse. - II. De l'importance de l'étourdissement préalable: le cas particulier de l'étourdissement réversible. - III. L'existence de sensibilités européennes comme justification à l'autonomie des Etats membres dans la détermination du rapport bien-être animal et religion. - IV. La valorisation croissante d'une éthique animale: une prise en compte jurisprudentielle de la sensibilité des européens à l'égard de la protection animale. - V. Le marché intérieur garant de la liberté religieuse. - VI. Réflexions conclusives et perspectives d'évolution de la législation européenne en matière d'abattage des animaux. | (Abstract) The Court of Justice of the European Union is once again invited to rule on the conciliation between animal welfare and freedom of religion. Mainly relying on the lack of consensus among the Member States, the Court finds that a national legislation introducing an obligation of reversible stunning is admitted according to Regulation (EC) 1099/2009, art. 13 TFEU and art. 10 of the Charter of Fundamental Rights of the European Union.

(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(1), 697-700 | European Forum Highlight of 13 June 2020 | (Abstract) The purpose of this Highlight is to illustrate the recent Ryanair Ltd. v. AGCM judgment (Court of Justice, judgement of 23 April 2020, case C-28/19), in which the Court of Justice has ruled on pricing policies of air transport in the internal market. The Italian Antitrust Authority sanctioned the Irish low-cost airline due to a lack of transparency in the advertised pricing. In the present case, the final price to be paid did not contain any of the additional charges (web check-in fees, payment card surcharge and VAT) which were communicated to the passenger only at the end of the booking procedure. The Court, interpreting the Community Regulation on internal aviation market, clarified the concept of "unavoidable and foreseeable elements of price" and its difference with optional costs. Low-cost carriers have based their commercial strategies on the cheapness of fares to easily reach price-sensitive customers. This decision put an end to an unfair advertising practice that created an indirect distortion of competition. The Court's intervention contrib-uted to reduce the informative gap that afflicted customers while allowing them to effective-ly compare prices of different airlines that can be found on the web.

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(1), 573-585 | European Forum Insight of 25 April 2020 | (Table of Contents) I. Introduction. - II. The facts: the emergence of measures restricting trade within the internal market and towards third states for the protection of public health. - II.1. Measures taken by EU Member States. - II.2. Measures taken by the EU. - III. The relevant legal framework. - III.1. EU internal market law. - III.2. EU external relations law. - III.3. WTO law. - IV. Assessment of the legal framework in light of economic and policy considerations surrounding a pandemic. | (Abstract) The present Insight looks at the EU and the international law framework concerning trade measures in the context of the COVID-19 crisis, focusing on export restrictions. As is shown, the legal framework is fairly permissive with regard to EU Member States, but also the EU as an international actor. Taking into account economics- and policy-based views on export restrictions in the context of pandemics, one may wonder whether one should not rethink the existing legal and institutional framework in order to strengthen international solidarity in such situations.

(Series Information) European Papers - A Journal on Law and Integration, 2019 4(3), 671-674 | Editorial | (Abstract) After 47 years of membership, the United Kingdom has left the European Union at the end of January 2020. But Brexit is far from being done. For anyone au courant with EU affairs, it is rather obvious that the hardest part of Brexit is yet to be delivered. The entry into force of the Withdrawal Agreement is a watershed moment in the history of EU integration. The Withdrawal Agreement - which provides a legal framework for Brexit - regulates primarily the separation issues. It deals, inter alia, with the acquired rights of EU and UK migrating citizens, the UK contributions to the EU budget and future arrangement for Northern Ireland. Furthermore, it also serves as a foundation for the transitional period, keeping the UK outside of the EU institutional framework but inside of the Internal Market and all other EU policies. So, Brexit is not done yet; it is in progress. The end of transition is penciled in for 31 December 2020, with a possibility of a single extension, either for 1 or 2 years. So, what one can expect from the forthcoming negotiations? The Brexit spectacle has come to the end of Act 1. After a short interval, a way more dramatic Act 2 has begun. There is no detailed and comprehensive script, just a few sketches. Inevitably, it will be largely improvised.

(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, 2019 4(1), 225-250 | Article | (Table of Contents) I. Introduction. - II. Tax competition and the EU internal market: from beneficial to ever more dangerous. - II.1. The place of tax provisions in the EU internal market setup. - II.2. Tax competition within the EU internal market. - II.3. Current position: "aggressive" tax competition calls for EU intervention. - III. Overcoming "aggressive" tax competition: a change of course. - III.1. Hesitant steps towards harmonisation. - III.2. State aid rules. - III.3. Budgetary policy coordination. - IV. Calling for an even more explicit change of course. - V. Conclusion. | (Abstract) The establishment of an internal market has not only increased cross-border mobility, but also triggered more direct tax competition between EU Member States. Relying on national tax laws in an attempt to attract businesses and investment benefitting from free movement rights under EU law, Member States have been willing to lower their tax rates and to offer specific advantages to incoming businesses. In an attempt to avoid Member States' competitive dynamics from resulting in a race to the fiscal bottom, the European Union responded to those tendencies by proposing different steps to curb harmful tax competition. This Article offers an overview of the different regulatory responses put in place at EU level to address and regulate tax competition, prior to calling for a more integrated Commission approach governing tax competition in the internal market.

(Series Information) European Papers - A Journal on Law and Integration, 2018 3(2), 659-662 | Article | (Abstract) This Introduction guides the reader through the special section "Social Integration in EU Law: Contents, Limits and Functions of an Elusive Notion". The Authors underline the multi-faceted essence of this concept, which has both an integrative potential and a defensive function. Social integration is closely connected to the enjoyment of rights: the higher the degree of integration is, the more rights a person benefits from. However, the recent practice of the European institutions and the Member States reveal that a lack of integration can be a powerful tool for managing intra-EU mobility and migrations flows from third countries.

(Series Information) European Papers - A Journal on Law and Integration, 2016 1(3), 921-941 | Article | (Table of Contents) I. Introduction. - II. Horizontal federalism in the US. - II.1. Full faith and credit. - II.2. Extradition. - II.3. Interstate commerce. - II.4. Interstate compacts. - III. Horizontal federalism in the EU: mutual recognition. - III.1. Constitutional principle by accident? - III.2. Apogee and after. - III.3. Mutual recognition, harmonization and national autonomy. A decision making triangle. - IV. Conclusions. | (Abstract) The - vertical - relation between the central level and sub-central levels of government is a key issue in federal-type systems, including the EU. A question which usually attracts much less attention is how the - horizontal - relations between the sub-central levels are shaped. In this contribution, the legal arrangements in the US and EU legal orders to shape the horizontal relations between the (Member) States ("horizontal federalism") will be analysed and compared. Whereas the US legal system contains a variety of arrangements, the EU relies rather exclusively on the principle of mutual recognition. The central question is how legal arrangements of horizontal federalism balance harmonization (or control by the central/federal level), recognition and acceptance of foreign rules and (host) State autonomy. From the perspective of the host (Member) State, the question is thus to what extent it may apply its own rules (host State autonomy) or whether it must comply with central rules (harmonization) and foreign rules (from other States). This article examines how this balance is struck in different policy fields, what mechanisms are applied (especially in the US context) and which factors determine the choice for a particular balance.

(Series Information) European Papers - A Journal on Law and Integration, 2016 1(3), 865-892 | Article | (Table of Contents) I. Introduction. - II. The constitutional life of mutual trust. - III. Of regulatory trust and mutual recognition. - III.1. Clarifying the invisibility of mutual trust. - III.2. The normativity of regulatory trust. - IV. Adopting or rejecting the level of protection of the other. - IV.1. Mutual recognition and the conundrum of the level of protection. - IV.2. Which are the prevailing factors when reviewing restrictive measures? - V. Concluding remarks: mutual trust as a regulatory principle. | (Abstract) The principles of mutual trust and mutual recognition are well established features of EU law. On a technical level, it is clear that the principles may require adoption of foreign levels of protection in individual cases as well as in legislation. At a closer look, however, the principles through "the rule of reason" also may imply quite the opposite: the imposing of domestic requirements on foreign goods, services etc. The CJEU case law following the Cassis judgement may be seen as striking a balance between cooperation and Member State self-determination, or between trust and distrust, in different fields. This contribution aims at looking into the regulatory function of the legal principle of trust in EU law. Taking this wider regulatory perspective, the mutual recognition regimes of EU must be seen from a holistic perspective. Rather than dwelling upon harmonized and non-harmonized fields separately, we will approach mutual trust as one, albeit multifaceted, concept, where harmonization, proportionality assessments and Member State actions in various fields of law form part of the same wider picture. In this regulatory perspective, the law on mutual trust and mutual recognition may be seen as a balancing between the regulatory interests of the EU (promoting free movement and cooperation) and the various Member States (promoting their interests of - alleged - protection of safety of various kinds). Through this perspective, we will be able to address the tension between regulation and deregulation, between integration and disintegration, and between unity and diversity present in EU law on a very general level. The first sec-tion of this contribution will look at the constitutional life of mutual trust within the CJEU case law: looking at its origins and main logic. The second section will attempt to clarify why the principle of mutual trust is mostly invisible in the free movement jurisprudence. This section also argues for understanding mutual recognition in terms of Regulatory Trust. The last section focuses on the thorny issue of the levels of protection and attempts to understand which are the key factors used by the CJEU in reviewing the (host) States measures that restrict free movement law and thus may constitute a break to the application of the principles of mutual trust and mutual recognition.

(Series Information) European Papers - A Journal on Law and Integration, 2016 1(3), 861-864 | Article | (Abstract) Throughout the years the principle of mutual recognition and the underlying principle of mutual trust have greatly contributed to the EU integration process. The recent migration and terrorist crises that have stroke the Union and its Member States with full force have placed the individual and the respect for fundamental rights in the centre of the discussion concerning the meaning and scope of mutual recognition and mutual trust. This special issue revisits mutual recognition and mutual trust, and discuss the principles from various perspectives.

(Series Information) European Papers - A Journal on Law and Integration, 2016 1(3), 1215-1224 | European Forum Insight of 29 November 2016 | (Table of Contents) I. The concept "communication to the public" and hyperlinking. - II. AG Wathelet's criterion of "indispensability" of the intervention. - III. The CJEU's amalgam of criteria. - IV. Conclusion. | (Abstract) How to reconcile the free flow of information on the internet and copyright protection? That is the fundamental issue underlying the preliminary questions referred to the CJEU in the GS Media case. After Svensson and BestWater, this case again offered an opportunity for the Court to clarify how hyperlinks to works protected by a copyright should be treated under the EU copyright law framework. In these previous cases, the Court had already established that the provision of a hyperlink to a website where a work protected by a copyright was freely available with the consent of the copyright holder was not an infringement of EU copyright law. In GS Media, the CJEU had to decide whether the posting of a hyperlink to such a work published on a website without the authorisation of the copyright holder was an infringement of EU copyright law, in particular of the right of communication to the public, ensured by Art. 3, para. 1, of the Directive 2001/29, of certain aspects of copyright and related rights in the information society.

(Series Information) European Papers - A Journal on Law and Integration, 2016 1(3), 1087-1096 | European Forum Insight of 24 October 2016 | (Table of Contents) I. Introduzione. - II. Esigenze di armonizzazione e obiettivi di politica sanitaria. - III. Il bilanciamento tra la tutela della salute e altri diritti e libertà enunciati dalla Carta dei diritti fondamentali. | (Abstract) On 4 May 2016, the ECJ delivered three judgments concerning the validity of the "Tobacco Products Directive". This article focuses on the legal basis of this controversial act and on the fundamental rights' restrictions provided for therein. As for the legal basis, the ECJ's judgments found that, in order to avoid the negative impact of divergent national legislations on the internal market, the EU is allowed to exercise its harmonizing competence in the field of public health, despite this policy being essentially reserved to the Member States. This finding was essentially based on ECJ's previous case law. With regard to the issue of the fundamental rights' restrictions raised by private parties in two of the judgments, the Court found these restrictions to be justified under the general limitation clause of art. 52 of the Charter. In more specific terms, the Court affirmed that, in the cases at hand, the EU was allowed to strike a fair balance between the need to respect fundamental rights and freedoms and the need to protect public health. This conclusion was predicated on the provisions of the TFEU and the Charter concerning the attainment of "a high level of protection" of human health. As suggested in this study, this approach of the ECJ can be read as part of a recent attitude towards referring more extensively to art. 35 of the Charter ("Health care").

(Series Information) European Papers - A Journal on Law and Integration, 2016 1(3), 1061-1072 | European Forum Insight of 3 September 2016 | (Table of Contents) I. Introduction. - II. EU trade secrets directive: increasing the susceptibility of whistleblowers? - III. Whistleblower protection: necessary for accountability and internal market. - IV. Conclusion. | (Abstract) The recently adopted Trade Secrets Directive aims to increase incentives for cross-border innovation activities and business competitiveness in the European Union. Yet, the Directive has been controversial and criticized for failing to provide adequate safeguards for whistleblowers, i.e. individuals who expose information in the public interest. This insight offers a legal analysis of interlinks between protection of trade secrets and whistleblower protection and questions whether the Directive increases the susceptibility of whistleblowers. Furthermore, despite the prima facie antagonism between trade secrets and whistleblowing, this insight shows that their rationale for improving the EU internal market is shared, and points to the necessity of across-the-board EU protection of whistleblowers alongside trade secrets protection.

(Series Information) European Papers - A Journal on Law and Integration, 2016 1(1), 287-297 | European Forum Insight of 16 April 2016 | (Table of Contents) I. Introducción. - II. Los hechos. - III. Apreciación jurídica de la Abogado General. - III.1. Admisibilidad. - III.2. Cuestiones de fondo. - III.2.1. El artículo 114 TFUE como base jurídica para adoptar la Directiva. - III.2.2. Proporcionalidad y derechos fundamentales. - III.2.3. Poderes delegados. - III.2.4. Principio de subsidiariedad. - IV. Conclusiones. | (Abstract) On 23 December 2015, Advocate General Kokott delivered her Opinion in three cases challenging the validity of Directive 2014/40/EU. Although the Court of Justice of the European Union (CJEU) had already ruled on the legal basis to adopt the former Tobacco Products Directive, new questions arose with the adoption of this new piece of legislation. The focus is now on the proportionality of the measures and on the alleged violation of the subsidiarity principle. Moreover, fundamental rights seem to be playing a more prominent role in the interpretation of EU rules. Therefore, it is interesting to comment on some of the most important arguments put forward by Advocate General Kokott and to highlight the importance that the confirmation of these Opinions through the rulings of the CJEU can have on the EU health policy.