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(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1403-1439 | Article | (Table of Contents) I. Introduction. – II. The concept of autonomy beyond a jurisdictional claim. – III. Autonomy as a source of coherence. – IV. Autonomy’s omnipresence in the case law of the Court. – IV.1. Autonomy operating visibly. – IV.2. Autonomy not explicitly mentioned but operating actively. – IV.3. Autonomy as a silent undercurrent. – V. Conclusion. | (Abstract) This Article aims to demonstrate that if there is a single vision of the jurisprudence of the Court of Justice of the European Union, it is the idea of autonomy. It portrays how autonomy, defined as an idea of a new legal order with its distinct ontological and axiological character, serves as an organizing principle ensuring the coherence of the case law. It first examines the concept of autonomy, and then investigates the presence of autonomy in the case law of the Court, arguing that it is either explicitly or implicitly always present as the undercurrent in the Court’s legal reasoning. It goes on to show the inextricable link between autonomy and the fundamental principles of the EU legal system, among them the rule of law, the protection of human rights and the effectiveness of the EU legal order. By drawing upon case law of the Court in varied areas of EU law, the Article establishes that autonomy, with its distinct character, is the most important guideline in understanding the Court’s jurisprudence, ensuring its predictability and coherence. Autonomy vitally ensures pluralism of the European Union by contributing to the integrity of the judicial process and enabling the Court to speak with one voice. Through Aristotle’s’ approach for the search of knowledge, the Article portrays that autonomy is not the end in itself, but is rather vital for realizing the goals and values of the European Union.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1465-1494 | Article | (Table of Contents) I. Introduction. – II. Normative autonomy as the very foundation of the EU legal order. – III. Regulatory autonomy. – IV. The Energy Charter Treaty (ECT). – IV.1. Substantive tensions. – IV.2. A clash with nor-mative autonomy? – IV.3. Limiting regulatory autonomy? – V. The reformed text of the ECT. – VI. The dark side of the EU’s external regulatory autonomy. – VII. Conclusion. | (Abstract) The autonomy of EU law is what makes the EU legal order what the Court of Justice of the European Union (CJEU) claims it to be, namely a domestic legal order that allows the EU to be an international actor in its own right. Investor-State-Dispute-Resolution (ISDS) mechanisms have recently been exam-ined by the CJEU as to their compatibility with the jurisdictional normative autonomy of EU law and the regulatory autonomy of the EU institutions (Achmea, Opinion 1/17, Komstroy). The EU is only party to one international agreement in force that contains an ISDS mechanism. It is also the most litigated in-vestment treaty in the world: the Energy Charter Treaty (ECT). In 2022, the negotiations between the Contracting Parties to the ECT have led to an ‘agreement in principle’ on a reformed treaty text. This Article examines the compatibility of the current ECT and of its reformed text with the normative and regulatory autonomy of the EU. It also argues that the Commission’s actions in the period between the agreement in principle on the revised text of 24 June 2022 and the adoption of a resolution of the Euro-pean Parliament calling on the EU to withdraw from the ECT on 23 November 2022 demonstrate the dark, undemocratic side of vesting the EU with external regulatory autonomy vis-à-vis the Member States. It highlights in particular that greater external regulatory autonomy of the EU may lead to an usurpation of executive powers and comes at the price of parliamentary control.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1293-1299 | Article | (Abstract) Jurisprudential accounts of the autonomy of EU law have struggled to offer a compelling account of its unique features. Nevertheless, I argue that Ronald Dworkin’s court-centric methodological approach is better-suited than Hartian positivism to shed light on the notion that EU law is autonomous. This is because most questions about the autonomy of EU law, when asked from a positivist perspective, are of little or no practical significance and philosophical inquiry will inevitably be inconclusive. By contrast, the autonomy of EU law is routinely employed as a normative principle helping EU courts to decide the issue of which party should win the case at hand. It is better understood as a shorthand reference to a political requirement, namely that EU courts ought to identify the main values behind European integration and to build – as opposed to find in the extant legal materials – a coherent body of principles.

(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, 2023 8(3), 1317-1331 | Article | (Table of Contents) I. Introduction. – II. Autonomy in the early theories of sovereignty. – III. A historical hypothesis: autonomy as an institutional tool. – IV. The triumph of autonomy. – V. A change of paradigm: absolute autonomy v offene Staatlichkeit. – VI. Reverse autonomy. – VII. Autonomy of the EU vis-à-vis its Member States. –VIII. Autonomy vis-à-vis international law. – IX. Autonomy v Völkerrechtsfreundlichkeit. – X. The political dimension of autonomy. | (Abstract) The notion of autonomy sinks its roots in the dynamics between political sovereignty and legal sovereignty. Although autonomy, namely normative sovereignty, was perceived by the early theorists as an inseparable prerogative of the sovereign, its conceptual development took far more time than the notion of political sovereignty. Autonomy emerged at a later time in-keeping with the conception of a legal order, conceived of as a close system of rules proceeding from a fundamental rule conferring normativity to the whole system. In the process of the European integration, the notion of autonomy followed an inverse trajectory. Whereas the EU does not possess the prerogatives of political sovereignty, it developed into a normative entity independent vis-à-vis the legal orders of its Member States. But the transplant of this notion of absolute autonomy in the realm of international law could deeply affect the capacity of the EU to implement its international values enshrined in its Constitutional setting.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1255-1291 | Article | (Table of Contents) I. Introduction. – II. Defiance. – III. Primacy of what? – IV. Pluralism in action. – V. The incoherence of pluralism. – V.1. Legal systems do not “conflict”. – V.2. Legal systems do not “overlap”. – V.3. Pluralism cannot provide a framework for consensus. – VI. Federal monism. – VII. Social monism. – VIII. Primacy: a pragmatic view. – VIII.1. Europe’s legal order. – VIII.2. MacCormick’s internationalism. – IX. Conclusion: the principle of primacy. | (Abstract) A leading position among European Union lawyers is that the primacy of EU law has a “structural” dimension. Under views known as pluralism and monism, many scholars believe that the EU has created a new legal system which either sits next to or, alternatively, above the legal systems of the member states. These views, however, are paradoxical and self-defeating. This is shown when we apply the structural theories to the question of primacy as put by the Polish Constitutional Tribunal in case K 3/21 of 7 October 2021. Neither pluralism nor monism can show that EU law prevails over a state that takes Poland’s defiant position. The correct way of understanding EU law is interpretive, not structural. It is the only way that shows that the Polish Court has acted unlawfully. The EU Treaties have not created a new “legal system”, allegiance to which remains optional. According to the best view of EU law, universally accepted in legal practice although not yet fully by legal theory, EU law is entirely continuous with the established constitutional settlement. The EU treaties are ordinary treaties of international law that create constitutional obligations in the normal way. They create bonds of cosmopolitan reciprocity that each member state is legally obliged to respect. The primacy of EU law is based on our ordinary practices concerning the status and authority of the law of nations.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1333-1359 | Article | (Table of Contents) I. Introduction. – II. The law of integration. – II.1. The summa divisio of the modern law and the autonomous “sphere of intervention”. – II.2. The concept of law-making treaty and the search for a European constitution. – II.3. Jürgen Habermas and the revision of Kant’s cosmopolitan right. – III. The law of intervention. – III.1. Two faces. – III.2. The concept of intervention treaty. – III.3. Post-war Europe. – IV. Joseph Weiler and the political messianism in EU law. – V. Conclusion. | (Abstract) In this Article, the EU Treaties which establish a new and autonomous legal order are analysed through the lens of Pierre Pescatore’s qualification of their operating sphere as “sphere of intervention”. Combining Jürgen Habermas' revision of Kant's concept of cosmopolitan law and Joseph Weiler's thesis on the messianic impact of the European integration process, a concept of international treaty is presented that is suitable for a proper analysis of the transformative character of the EU Treaties and the Common Market as such a "sphere of intervention”. Highlighting implications of the theory of international treaty, legal philosophy and messianism, the concept of the European autonomous legal order, endowed with direct effect and supremacy, shall be proven to be the historical answer to the aporias of classical international law and to the totalitarian abuse of the law in the fascist regimes in Europe in the first half of the 20th century – not only on a symbolical level but also on the level of the concrete legal structure of the European integration process. The general aim of this Article is therefore to contribute to the debate about the nature of the EU Treaties as constituting an autonomous legal order from an international law perspective by identifying a type of international treaty suitable to explain the special character of a legal order that is identical neither with international nor with domestic law, but rather constituting a realm in-between the former and showing an independent legal standing in itself.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1361-1401 | Article | (Table of Contents) I. Introduction. – II. The autonomy of the federal legal order in US antebellum constitutionalism. – III. Justifying legal order. – IV. Autonomy, dual federalism and the monism–dualism dichotomy. – V. Conclusion. | (Abstract) This Article analyses debates in US antebellum constitutionalism on the “autonomy” of the US federal order in light of similar debates in contemporary EU constitutionalism. In the early American republic, two interrelated questions permeated constitutional theory: what was the nature of the federal order that had been created by the ratification of the US Constitution, and who was the final arbiter in constitutional questions. Today, EU constitutional lawyers would have no trouble recognising these debates, which are essentially re-enacted both in scholarly discussions and in collisions between the Court of Justice and national constitutional courts. This Article starts with a brief historical overview of some of the main constitutional debates in US antebellum constitutionalism, showing that these debates were remarkably similar to issues recently presented by the PSPP judgment of the German Federal Constitu-tional Court and the K 3/21 decision of the Polish Constitutional Tribunal. Secondly, this Article shows that both debates are characterised by a similar asymmetry: proponents of an autonomous federal legal order mainly use functionalist arguments, while proponents of the sovereignty of the states mainly use arguments about the “nature” or “origin” of the federal order. Thirdly, the Article contrasts the framing of the debate about the autonomy of the US federal order with the monism–dualism dichotomy that is central to our thinking about the relationship between national and international law. It shows how this distinction was not relevant to constitutional debates in the early American republic, and how that could cast a different light on the EU legal order today.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1247-1254 | Article | (Table of Contents) I. The autonomy of EU law and legal theory: bridging the disconnect. – II. Overview of this Special Section. | (Abstract) The autonomy of EU law is a source of ample connections between EU law and legal theory. This Special Section contributes to the mutual enrichment between EU constitutional law and legal theory – which traditionally have been mostly disconnected disciplines – by bringing together new, theory-informed perspectives on the autonomy of EU law and European integration from both EU lawyers and legal theorists. The ten Articles in this Special Section are grouped together in three categories, focusing re-spectively on philosophy of law, legal theory and legal history, and legal doctrine and the role of the European Court of Justice. Together, they provide a plethora of contrasting and complementary legal-theoretical views on the autonomy of EU law and the EU legal order, within the broader context of European integration. With this Special Section, we aim to contribute to the legal-theoretical analysis of EU constitutional law, hoping that many others will follow in our footsteps.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1235-1245 | European Forum Insight of 24 January 2024 | (Table of Contents) I. Introduction: Russian propaganda in state and online media: disinformation machinery in full swing. - I.1. Conceptual premise: a brief comparison between propaganda and disinformation. - I.2. Disinformation machinery in full swing: Russian propaganda in state and online media. - II. The RT case. - II.1. Disinformation machinery in full swing – Russian propaganda in state and online media. - II.2. RT France’s appeal. - III. “For the first time in modern history, Western European governments are banning media”: polemics with the banning of RT and Sputnik. - IV. Quo vadis propaganda regulation?. | (Abstract) The ongoing Russia-Ukraine conflict has triggered a multitude of media regulation challenges within the EU. With the Russian state propaganda machinery continuing to work in full swing, it has become increasingly critical for the EU to regulate media content to prevent the dissemination of disinformation, harmful and misleading information and state propaganda. This Insight seeks to explore the EU’s reaction to the Russian coverage of the war through the example of the RT case. The study aims to provide a theoretical background to Russian propaganda as a premise for the case study. The focus of the Insight is the examination of the RT suspension and the RT France case via the broader understanding of “propaganda” restrictions using the case law of the CJEU and the ECtHR. The study also aims to introduce a scholarly critical viewpoint with regard to imposing stringent restrictive measures against a media outlet and the effectivity thereof. The main argument of the Insight is that the nuanced and contextual understanding of media in war is not only a legal necessity but an effective societal tool, too, especially in the Russo-Ukrainian war.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1221-1233 | European Forum Insight of 22 January 2024 | (Table of Contents) I. Introduction. - II. Pinpointing the problem with mutual trust. - III. Mutual trust in the draft Accession Instruments. - IV. The ECtHR and the CJEU on mutual trust: case law convergence?. - IV.1. Mutual trust in the ECtHR. - IV.2. Mutual trust in the CJEU. - V. Exploring outstanding areas of divergence. - V.1. Recognition of civil judgments. - V.2. Right to a fair trial. - VI. In Conclusion. | (Abstract) After more than forty years of discussion and a decade after the CJEU struck down EU accession to the ECHR in Opinion 2/13, negotiators provisionally approved a new version of the Accession Instruments in March 2023. This Insight examines how this new draft of the Accession Instruments has addressed the mutual trust concerns expressed in Opinion 2/13. It first traces the evolution of the negotiations on the “mutual trust basket”. Through a manual analysis of all negotiation documents, we concluded that the negotiated solution is built upon an alleged case law convergence between the CJEU and the ECtHR on mutual trust cases. Therefore, this contribution further assesses such assumption of convergence by looking at the CJEU’s broader language of mutual trust (beyond Opinion 2/13 and the Area of Freedom, Security and Justice) and the ECtHR’s mutual trust jurisprudence. We argue that the CJEU has conceptualised mutual trust as a general horizontal principle of EU law that, depending mostly on the cooperation scheme in which it is implemented and the fundamental rights that it might potentially affect, will present different degrees of automaticity. The latter, understood as the leeway (or lack thereof) for national authorities to invoke exceptions to mutual trust in light of potentially overriding interests, impacts the potential for convergence between the CJEU and ECtHR on mutual trust. Consequently, the full workability of the solutions devised in the draft Accession Instruments is called into question.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1201-1211 | European Forum Insight of 22 January 2024 | (Table of Contents) I. Introduction. - II. La condamnation d’une législation autorisant, au nom de la liberté contractuelle, la discrimination pour cause d’orientation sexuelle en matière d’emploi. - III. L’articulation entre droit à la non-discrimination pour cause d’orientation sexuelle et prise en compte des exigences professionnelles. - IV. L’articulation entre droit à la non-discrimination et liberté contractuelle en général. | (Abstract) In the J.K. case, the CJEU condemned Polish legislation derogating, in the name of the freedom to choose a contract, from the prohibition of discrimination based on sexual orientation in employment and occupation. However, one may wonder about the scope of this decision concerning the exemptions permitted by Directive 2000/78 when specific professional requirements are claimed, such as the prevention of internal social conflicts or respect for company doctrine. Likewise, we may question the scope of the decision for contractual freedom in general. To what extent may the contract be the site of justified discrimination?.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1179-1187 | European Forum Insight of 22 January 2024 | (Table of Contents) I. Prendre l’arrêt J.k. c TP S.A. au sérieux. - II. La Cour de Justice au cœur d’une bataille culturelle. - III. L’apport de l’arrêt J.K. c TP S.A. au droit des personnes. | (Abstract) The J.K. v TP S.A ruling is an important judgment, and not only because it led the Court to settle main questions of substantive law. In the context of adapting social law to new forms of employment relations, the Court first clarified the personal scope of Directive 2000/78/CE. Secondly, it addressed the relationship between non-discrimination and freedom of contract. Finally, in J.K. the Court underpinned its political conception of non-discrimination law. This Insight is an introduction to a Special Focus which aims to bring together contributions that highlight different aspects of this important judgment. As an introduction to the Special Focus, this Insight presents the case and its particular context: that of a “cultural battle”.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1189-1199 | European Forum Insight of 22 January 2024 | (Table of Contents) I. Le retour de la guerre des valeurs. - II. L’identité sexuelle, nouveau cœur des valeurs européenne. - III. Sexualité versus religiosité : une inégalité au sein des valeurs européennes ?. - IV. Minorités, liberté, et fonctionnalisme social. - V. Ordre de valeurs et conséquentialisme social | (Abstract) One way of understanding the JK ruling is to see it as the symptom of a war of values within the European Union. In the context of “illiberal democracy”, the question of sexual identity resonates and conflicts with that of religious identity, creating a trouble within European values. In an attempt to resolve it, the jurisprudence tries to elaborate an order of values that seeks to preserve the relational capacity of the members of the European society. It fails, however, to fully justify the different approach that separates the protection of sexual minorities and that of religious minorities in Europe.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1213-1220 | European Forum Insight of 22 January 2024 | (Table of Contents) I. Introduction. - II. La distinction entre le droit de la non-discrimination et la législation sociale de l’Union. - III. L’identification d’une catégorie des travailleurs indépendants bénéficiant du droit de la non-discrimination. - IV. Un rapprochement du régime du travail des travailleurs indépendants et salariés. - V. Conclusion | (Abstract) From an EU social law perspective, the decision of the Court of justice in J.K. appears prima facie to be a step forward in the construction of a universal labour law regime. However, the case strictly limits the progress towards an assimilation of the situation of employees and self-employed, in EU social law. First, by distinguishing EU anti-discrimination law and social legislation, only the former being extended to self-employed. Second, by limiting the category of self-employed who can benefit from anti-discrimination law. The case nonetheless suggests that a universal labour law regime can be constructed by using basic notions of labour law for the regulation of other types of contractual relationships than employment contracts.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1155-1177 | European Forum Insight of 17 January 2024 | (Table of Contents) I. Introduction. - II. Financing European defence outside the EU budget. - II.1. Funding through the back door: the European Defence Agency. - II.2 Financing "through the front door": the European Peace Facility. - III. EU budget funding for European defence. - III.1. Unprecedented budgetary efforts through the implementation of EU industrial and research policies. - III.2. A more modest budgetary contribution through the multiplication of targeted actions. - IV. Conclusions. | (Abstract) Since the Treaty of Lisbon, signed in 2007, the common security and defence policy shall include the progressive framing of a common Union defence policy, which may lead to a common defence. However, the key question is the financing of such policy. To address this issue, several taboos have been progressively lifted in terms of financial resources, both out of the EU Budget with new players (notably the European Defence Agency) and new instruments (especially the European Peace Facility) and within the EU Budget, with a multiplication of initiatives to reinforce the European defence industry (from the first dedicated program in 2017 to the new instrument for supporting the production of ammunition in 2023). The Ukrainian war was and is still a decisive factor to contribute to and accelerate that evolution

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1131-1142 | European Forum Insight of 16 January 2024 | (Table of Contents) I. Introduction. - II. EU’s stance on gender equality and the operationalization of its supportive role in Ukraine. - III. The EU’s multifaceted engagement. - III.1. Legal dimension. - III.2. Justice-related dimension. - III.3. Values-based dimension. - IV. Conclusion. | (Abstract) The Insight investigates the role of the EU in promoting gender equality and freedom from gender-based violence in Ukraine in the context of Russia’s war against Ukraine. By drawing on concrete examples of developments which took place at legal, justice-related and values-based dimensions through the framework of discursive institutionalism, the Author identifies a significant shift in the EU’s role since the Russian invasion of Ukraine in February 2022. Concretely, the shift from a supportive presence in the initial stages of war in 2014 to the EU more actively exercising its normative power.

(Series Information) European Papers - A Journal on Law and Integration, 2024 8(3), 1143-1154 | European Forum Insight of 16 January 2024 | (Table of Contents) I. Introduction. - II. The advent of Putinism in Europe: illiberalism in Hungary and Poland. - III. Diverging approaches to the invasion of Ukraine. - IV. Challenges and opportunities: discovering the EU’s militant democracy potential?. - V. Conclusion. | (Abstract) In the past decade, Hungary and Poland have experienced a process of rule of law backsliding that threatens the state of democracy at home, and affects the decision making and legitimacy of the European Union as a whole. In the face of Russia’s war of aggression against Ukraine, the response of Hungary and Poland has been diametrically opposed, but equally damaging to the EU rule of law. The present Insight will analyse the response of these two member states to the Russian invasion, and it will argue that the war has highlighted major pitfalls in the EU’s policy toward backsliding governments, which continue to benefit from funds and veto powers, undermining the EU’s effectiveness in the process. However, a renewed fight for democracy in Europe could offer the perfect opportunity to be tough on autocrats inside and outside the Union.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1125-1130 | European Forum Insight of 15 January 2024 | (Table of Contents) I. Introduction: the war in Ukraine and sanctions. - II. Sanctions formulation. - III. Sanctions implementation. - IV. Sanctions communication. - V. Conclusion. | (Abstract) As a result of the invasion of Ukraine, the Commission has been increasing its weight throughout the EU sanctions process. This transformation is visible in the formation, implementation and communication of sanctions. Formulation has become less member state-driven, implementation has undergone some steps towards centralisation, and communication has becoming more aggressive. An enhanced role for the Commission may be advantageous for sanctions governance; however, the exceptionally fast pace at which it is unfolding is susceptible of undermining regular scrutiny by economic operators, public opinion, and, most acutely, parliamentary bodies.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1121-1124 | European Forum Highlight of 15 January 2024 | (Abstract) This piece highlights the challenges and opportunities that the Eurojust-supported Joint Investigation Team (JIT) in Ukraine may provide for the Office of the Prosecutor (OTP) of the International Criminal Court (ICC). In 2022, a JIT with seven States as members and the ICC-OTP as a participant was set up on alleged core international crimes committed in Ukraine. Europol also became a participant in the JIT in October 2023. The OTP’s participation in the JIT in Ukraine offers a great opportunity to implement the policy of proactive complementarity of the ICC. Meanwhile, it brings both challenges and opportunities to the OTP in gaining experiences and practices of managing two-track cooperation and assistance with seven States pursuant to the Rome Statute. Lastly, the OTP must be cautious about potential challenges to its independence throughout all its activities, including its participation in the JIT in Ukraine.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2023), 1105-1120 | European Forum Insight of 11 January 2024 | (Table of Contents) I. Introduzione - II. Il fatto - III. Le conclusioni dell’Avvocato generale - IV. La sentenza della Corte di giustizia - V. Considerazioni critiche - VI. Conclusioni. | (Abstract) In the judgment handed down on 9 November 2023 by the Court of Justice in Staatsanwaltschaft Aachen, the Court has acknowledged that the two-step test aimed at protecting fundamental rights, which was developed in relation to the European Arrest Warrant in Aranyosi and Căldăraru and confirmed by subsequent judgments – in particular, LM – also applies in the context of Framework Decision 2008/909/JHA on the transfer of sentenced persons. The Insight comments on the stance taken by the Court. It focuses on the applicability of the test also in connection with other instruments of judicial cooperation in criminal matters, the possibility of a conflict between the protection of fundamental rights and the function of social rehabilitation pursued through the transfer of sentenced persons, and which aspects the executing judicial authority should focus its analysis on when applying the test.

(Series Information) European Papers - A Journal on Law and Integration, 2024 9(1), 461-462 | Editorial | (Abstract) Europe is changing its political genome. The ontologically political diversity between the Union and its Member States seems to wane. The political dynamics of the Member States are obsessively dominated by the role of the Union and, conversely, the political dynamics of the Union are more and more influenced by the national political forces which bend the European decision to their own benefit. The 2024 elections could likely be considered by future historians as the event that changed, perhaps not abruptly and perhaps not permanently, the Union's form of government into a second republic

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1047-1056 | (Table of Contents) I. Introduction - II. The procurements of European Defence Agency (EDA) - III. Procurement of ammunition related to the war in Ukraine - IV. Procurement of ammunition related to the war in Ukraine - V. Conclusions. | (Abstract) Russia’s invasion of Ukraine has shaken up the EU approach to defence matters. Funds have been released to help in providing Ukraine with ammunition. More interesting, the European Defence Agency (EDA) has taken up a more active role in the procurement of defence materials. While these developments are still limited, a partial centralisation of defence procurement at EU level seems to be in the cards.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1037-1045 | (Table of Contents) I. Introduction - II. Protection of war refugees from Ukraine - III. Targeted sanctions against citizens of the Russian federation and of Belarus - IV. Human rights of the general population of the EU Member States - V. Concluding remarks. | (Abstract) The conflict in Ukraine, triggered by the Russia’s act of aggression in March 2014 and, in full scale, in February 2022, has had a profound impact on the human rights situation not only in Ukraine itself but also in the Member States of the European Union. This impact manifests itself in three main areas. The first area concerns the protection of war refugees from Ukraine. The second area pertains to the sanctions imposed on the citizens of the Russian Federation and of Belarus. The third area relates to the effects of the conflict on human rights of the general population of the EU Member States, stemming either from the economic or social hardship brought about by the conflict, or from restrictive measures adopted by the EU Member States in response to the conflict. In addition to introducing each of these areas in more detail, the Insight recalls that not paying adequate attention to all of them simultaneously might result in violations of human rights and in the radicalisation of certain segments of society that might feel (rightly or not) ignored and left behind.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1067-1075 | European Forum Insight of 28 December 2023 | (Table of Contents) I. Introduction - II. Labyrinth of legal issues - II.1. State-owned assets - II.2. Private assets - III. A way forward. | (Abstract) This Insight explores the legal terrain surrounding constraints on repurposing of state-affiliated property (both state-owned and private assets affiliated with the state) to compensate for human rights violations caused by Russia's invasion of Ukraine. It briefly examines evolving norms regarding sovereign immunity, third-party countermeasures, and their impact on international human rights law. Key issues include the role of jus cogens norms and obligations erga omnes in potentially waiving state immunity, the legality and reversibility of third-party countermeasures, and the potential clash between sovereign immunity and human rights law. The Insight also discusses the relevance of investment treaty law and international humanitarian law to property constraints. Recent developments, such as establishing a compensation mechanism for Ukraine's damages, are outlined, underscoring the need for adequate funding for these mechanisms to be effective. The author proposes potential approaches to asset confiscation, including transferring frozen assets to a dedicated fund or providing financial assistance while retaining the right to reclaim assets upon reparations. Acknowledging the intricacies involved, it calls for further research to address the multifaceted issues arising in this evolving area of international law.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1057-1065 | European Forum Insight of 27 December 2023 | (Table of Contents) I. Introduction - II. The Impact of the War on the Accession Process of Ukraine - III. Peace Deal as a decisive factor for Ukraine’s Accession to the EU - IV. Impact of Ukraine’s future membership on the EU and its policies - V. Concluding remarks. | (Abstract) The candidate country status for Ukraine was justified and widely supported by the EU institutions and EU Member States because of Russia’s brutal invasion of Ukraine in February 2022. However, Ukraine’s accession to the EU is not going to be an easy ride. It is the first case in history of EU integration when a candidate country that fights for its sovereignty and existence is endeavoring to meet strict conditions of the EU membership. This situation brings to both the EU and Ukraine difficult choices and challenges. For Ukraine it is essential to secure a just and lasting peace deal with Russia, to end the hostilities and to be able to complete the meticulous EU accession process. For the EU it is urgent to adjust its institutional, legal, political and economic systems to absorb a new wave of enlargement that may bring 10 new Member States on board. This Insight advocates that Ukraine’s accession to the EU will not be conventional but an experimental exercise that embraces new accession tracks like “accession through war” and “gradual integration”.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 879-900 | Article | (Table of Contents) I. Setting the scene. – II. The (more than) discreet charm of EU agencies. – III. The evolution of the European regulatory space: the EU Green Deal as a transformative project. – IV. The European Environment Agency within the institutional architecture of the Green Deal: role and functions. – V. The EU Scientific Advisory Board on Climate Change as a multifunctional independent body: a taxonomy and its implications. – VI. The “external” dimension: increasing cross-fertilisation of climate change governance. – VII. The “internal” dimension: a thorny cohabitation with the European Environment Agency. – VIII. The integration of independent scientific expertise into the regulatory process: legitimising force or disputable “epistemic leadership”? – IX. Conclusions. | (Abstract) The Article aims to investigate the relevance of the EU agency model in the evolving European legal order and test its enduring ability to provide a functional and normative response to the complex challenges the EU is facing, first and foremost the achievement of climate neutrality, the macro-objective at the heart of the European Green Deal (EGD). By its long-term vision, latitude and regulatory effort, the latter has the capacity to determine a deep impact on the EU and its regulatory space. The analysis of the dynamics, governance arrangements, policy options and legal developments that characterise the EGD can thus represent an interesting “litmus test” for measuring more general trends and transformations in the European legal order and, in cascade, its administrative system. In light of these premises, the essence of the argument is as follows. Within the climate neutrality regulatory framework, a subtle functional downsizing of the European Environment Agency occurred due to the recent creation of the European Scientific Advisory Board on Climate Change, a multifunctional independent scientific body that should act as a point of reference for the EU on climate change issues. While testifying to the Union’s ever-growing confidence in the independence formula, now experienced in climate neutrality realm, its establishment represents a significant and challenging development, capable of deeply impacting future EU climate policy-making, yet also triggering a series of tensions within the EGD political project.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 1013-1035 | Article | (Table of Contents) I. Setting the scene. – II. Challenges of EU Member States’ extraterritorial border management measures in select scenarios. – III. Allocating international responsibility of EU Member States for their extra-territorial border management activities: Twilight zone. – III.1. First scenario: Activities carried out by EU Member States within third countries or for their benefit. – III.2. Second scenario: Activities of EU Member State officials carried out on board of third country vessels with the aim to prevent irregular entry to the EU. – III.3. Third scenario: EU Member States sharing information with neighbouring third countries. – IV. Assessment and outlook to the future. | (Abstract) EU Member States are ever more involved in border management activities in cooperation with third countries. Such activities entail risks of violating various human rights of the people on the move, such as the right to leave any country, the principle of non-refoulement, and the prohibitions of ill-treatment and arbitrary detention. When Member States carry out various cooperative border control activities outside their sovereign territory, their responsibility is unclear. Under international law, responsibility may also arise when a State aids or assists another State to engage in conduct that violates international obligations (art. 16 of the Articles on the Responsibility of States for Internationally Wrongful Acts – ARSIWA). Member States’ responsibility can thus emerge via “derived responsibility” flowing from an internationally wrongful act committed by a third country. The Article seeks to discuss selected extraterritorial border management scenarios, which are in the “grey zone” in terms of State responsibility from the perspective of various human rights violations. More legal clarity is needed in such (and similar) concrete scenarios, especially when Member States “aid or assist” third countries in their efforts to manage migration flows. The Article submits that it is still debated whether related conduct entails State responsibility in such specific externalised border management situations, which involve activities carried out under the umbrella of international cooperation, but with the aim of preventing migrants from reaching the EU. Nevertheless, this piece argues that complicity of Member States under the ARSIWA can be established under certain circumstances as the presented scenarios demonstrate.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 901-904 | Article | (Abstract) In recent years, the European Union (EU) has substantially intensified its activities directed at externalising border/migration management towards the territories of third countries. This specific model of EU migration management is often realized at the expense of democratic scrutiny, judicial supervision, transparency and, most importantly, the protection of human rights. It also entails unprecedented challenges for the legitimacy of the EU in its international projection. Currently, EU cooperation with third countries appears focused on advancing EU's own interests and thus subordinated to the objectives of alleviating pressure on its external borders and reception capacities. Such EU action purports to prevent, as close as possible to the point of departure, irregular arrivals to EU Member States' territories, to ensure effective returns/readmission and to transfer the burden of protection responsibilities. This Special Section, composed of five contributions, aims to assess the implications of the externalisation of EU migration policies for the EU constitutional principles and values, and to take stock of the latest developments in different concrete policy areas. Particular attention is devoted to analyzing compliance of externalisation practices with the requirements imposed by the EU constitutional framework, specifically with the principles and values that should guide Union's external conduct in this area of law.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 959-984 | Article | (Table of Contents) I. Introduction. – II. Background: setting CFSP/CSDP missions on migration. – III. CFSP/CSDP missions versus AFSJ instruments. – III.1. Competence question. – III.2. Institutional implications for decision–making procedures. – III.3. ECJ competences and judicial protection. – IV. The ECJ doctrine on the choice of the appropriate legal basis and the delimitation between CFSP and migration policy. – IV.1. Revisiting the ECJ doctrine on the choice of the appropriate legal basis. – IV.2. Applying the ECJ doctrine to CFSP/CSDP missions on migration. – IV.3. Alternatives to the “centre of gravity test”. – V. Conclusion. | (Abstract) The response of the EU’s external action to migration challenges is not limited to the use of its migration competences under Title V TFEU, but also extends to CFSP/CSDP instruments, governed by the TEU. As a further illustration of the securitisation approach evidenced in the EU’s management of migration, the Union deploys CSDP missions with components and objectives related to strengthening border controls, fighting human trafficking and migrant smuggling, and promoting third countries’ capacity-building in these purposes areas. Using CSDP instruments, mainly foreseen to preserve international security, for migration purposes touches upon the horizontal demarcation of EU competences and raises an essential question related to the choice of the correct legal basis in cross-Treaty cases, at a time in which the CFSP still presents some intergovernmental features. This Article firstly reviews the legal implications of the recourse to the CFSP instead of AFSJ instruments for migration purposes, addressing and comparing the competence question, decision-making and judicial protection in both policies. This shows how the increasing “normalisation” of the CFSP does not match yet the degree of integration of the AFSJ and its corresponding safeguards. Secondly, the ECJ doctrine on the choice of the appropriate legal basis and its “centre of gravity test” is revisited to clarify how its criteria apply to the linkages between CFSP and migration policy. Although a simultaneity of inextricably linked objectives complicates this cross-Treaty delimitation, a strict application of the “centre of gravity test”, by which a CFSP tool is instrumentalised to pursue an AFSJ objective, may provide the answer to this controversy

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 931-957 | Article | (Table of Contents) I. Informality and the EU external action on migration and asylum. – I.1. Informalisation and cooperation on the readmission. – I.2. Growing interest in informalisation: a literature review. – II. Informalisation, soft law and soft agreements: key concepts and definitions in the readmission policy field. – II.1. Understanding formal and informal readmission agreements. – II.2. Informality in readmission agreements. – II.3. Functions of soft law in EU readmission policy. – II.4. Main features of informal readmission agreements. – III. The intersection between EU readmission policy and the informalisation trend. – III.1. Lack of conditions leading to hard law. – III.2. The quest for effectiveness in return policy. – IV. Informalisation and conditionality. – V. The disregard for human rights in readmission cooperation. – V.1. Readmitting failed asylum seekers to their war-torn country of origin. – V.2. Pushing back asylum seekers to a third country deemed “safe”. – VI. Conclusion: Eclipsing human rights protection under informal agreements. | (Abstract) The informalisation trend in EU migration law-making is seen most often in EU readmission policy. Informal readmission agreements and multi-purpose agreements which include readmission objectives have multiplied with new third countries involved in the EU external relations on migration, beyond the EU Neighbourhood. In discussing the legal nature of informal agreements, this Article focuses on two main issues. First, the interplay between informal agreements and conditionality, with positive conditionality replaced by negative conditionality in a blind search for effectiveness in the EU return policy. Second, the use of informal agreements to return or push back asylum seekers are the epitome of the EU externalisation strategy. While informality is part and parcel of the EU readmission policy, increasing informalisation has significant unintended long-term effects, both for the European Union as an international organisation with law-making capacity, and for individuals in a field of law – migration – where human rights should be protected rather than frustrated.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 905-929 | Article | (Table of Contents) I. Introduction. – II. The EU Treaty as guidance for rule of law, democracy and fundamental rights. – II.1. Constitutionalisation of the EU values. – II.2. Guidance for the Member States. – II.3. Guidance for the EU. – II.4. Guidance for the external dimension of EU action. – III. External dimension of EU asylum and migration policy. – III.1. Democracy and institutional balance. – III.2. Fundamental rights. – III.3. Conditionality and Treaty concerns. – III.4. Principles of equality and sincere cooperation. – IV. Lessons learnt from the EU rule of law crisis? | (Abstract) This Article analyses to what extent the EU values and principles are guiding the external dimension of EU migration policies, especially the principle of democracy and fundamental rights. To illustrate this, it elaborates on the consequences of the informalization of this cooperation, and of the lack of safeguards for fundamental rights compliance. In the second part, the Article analyses the consequences of the increasing tendency to apply conditionality in the external migration cooperation, illustrated with three recent examples (Union Visa Code, post-Cotonou Agreement and trade tariff preferences). While referencing to political science research from the perspective of third countries, the Article concludes that the conditionality approach also risks undermining the principles of equality and sincere cooperation, which eventually impede the effectiveness of the external dimension on migration policies. By drawing lessons from the internal rule of law mechanisms, the EU could bring the external cooperation on migration more in line with its own values and principles enshrined in the Treaties. By doing so, it would offer the necessary safeguards for more coherence in the EU’s policies.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 853-878 | Article | (Table of Contents) I. Dual-track proceedings and the current scope of protection. – II. The need for a clear notion of “idem”. – III. The “sufficiently close connection in substance and time”: ECtHR case-law post A and B v Norway. – IV. The “sufficiently close connection in substance and time”: the unspoken balancing act engaged in by the ECtHR and an alternative criterion to assess whether there was a duplication of proceedings. – V. Lis pendens and ne bis in idem. – VI. Conclusion. | (Abstract) This Article analyses the issue of the compatibility with the ne bis in idem principle of the double-track sanctioning systems present in various European legal orders in the light of the case-law of the European Court of Human Rights and the Court of Justice of the European Union. In particular, after a reconstruction of the most significant case-law after the famous ruling A and B v. Norway, three main critical points are brought into focus: the divergences between the national and European case-law on the interpretation of the notion of idem factum, the difficult practical application of the close connection test between proceedings developed by the European Court of Human Rights, which can be seen as the precipitate of an unsatisfactory balancing act of opposing interests, and the possible extension of the ne bis in idem principle also to cases of lis pendens.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 985-1011 | Article | (Table of Contents) I. Introduction. – II. The establishment of the European Border and Coast Guard. – III. The enhancement of the Agency’s mandate. – III.1. The conferral of executive powers on the Agency’s staff. - III.2. The emergence of a supervisory role. – IV. Cooperation with third countries in the framework of the European Border and Coast Guard Regulation. – V. The implications of the extraterritorial Frontex joint operations. – V.1. The deployment of border management teams on the territory of third countries. – V.2. The delimitation of responsibilities between the actors involved in the operations. – V.3. Redress in case of fundamental rights breaches. – VI. Conclusions. | (Abstract) The aim of this Article is to examine the role played by Frontex in the process of externalisation of EU migration policies. It is not surprising that the external dimension of Frontex’s powers has been reinforced in the successive reforms of its legal framework. There is a common agreement between Member States on the need to intensify international cooperation with third countries in order to face current challenges in the area of migration. The deployment of border management teams on the territory of third countries raises complex legal and political questions as regards the legal regimen applicable and the delimitation of responsibilities between the different actors involved in the extraterritorial operations. The allegations of fundamental rights violations in which Frontex was reportedly involved in the Aegean Sea show that it will be very difficult to clarify the role of Frontex in any wrongdoing that will happen in the context of operations implemented on the territory of third countries.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 809-851 | Article | (Table of Contents) I. Introduction. – II. Democracy as a value of EU Law. – II.1. The development of the value of democracy in the European Union – II.2. The value of democracy in art. 2 TEU and the Copenhagen criteria – III. The value of democracy beyond art. 2 TEU. – III.1. Right to vote and to stand as a candidate – III.2. Art. 10 TEU – III.3. Art. 21 TEU – III.4. The Charter of Fundamental Rights of the EU – IV. Enforcing Democracy Beyond Art. 7 TEU. – IV.1. Problematising art. 7 – IV.2. Centralised enforcement – IV.3. Decentralised enforcement – V. Conclusion. | (Abstract) This Article analyses several ways in which democracy as a core value of the European Union can be enforced against member States violating democratic principles. Following the crisis of democratic backsliding in several Member States, no legal action has been taken on the basis of a breach of democracy or democratic principles. A possible explanation is that violations of art. 2 TEU are subject to a specific enforcement procedure (laid down in art. 7 TEU), which is notoriously hard to trigger. Furthermore, since art. 2 TEU refers to abstract values, it is frequently asserted that values such as “democracy” cannot be legally enforced. This Article, however, claims that the value of democracy has a sufficiently clear core legal meaning in EU law to be legally enforceable. Secondly, this Article claims that EU law includes numerous other centralized (at EU level) and decentralized (at Member State level) enforcement mechanisms beyond art. 7 TEU that can be used to enforce democratic principles. The current absence of enforcement action against such Member States, therefore, is largely a political choice instead of a legal requirement.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 791-801 | European Forum Insight of 21 November 2023 | (Table of Contents) I. Introduction - II. L’admission des investissements étrangers via la pratique des visas et des passeports dorés - III. Risque de contentieux associé à l’adoption d’un régime de sanctions européennes - IV. Utilisation du régime de protection des investissements à des fins offensives - V. Conclusion | (Abstract) The intensification of restrictive measures adopted by the European Union and its member states in the wake of Russia's offensive in Ukraine raises the question of their interaction with legal regimes ap-plicable to foreign investments which follow diametrically opposed objectives. Indeed, recent trends show that foreign investment regimes, broadly defined therein as including domestic regimes for in-vestment admission as well as international investment agreements, offer advantages which can be construed as undermining the effectiveness of European sanctions. The practice of "golden passports" and the possibility that investment treaties be used to challenge the legality of restrictive measures are two examples. However, these possible inhibiting effects should not be overstated. Not only EU restric-tive measures are intended to comply with international agreements, but as previously shown in the context of the Ukraine Russia war, international investment agreements can be used to repair damages caused to investors during war time.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 765-777 | European Forum Insight of 21 November 2023 | (Table of Contents) I. Crises and threats, incentives for a stronger EU defence - I.1. The initiatives stemming from the EUGS - I.2. The spill-over effect phenomenon applied to the current geopolitical situation - II. The Permanent Structured Cooperation (PESCO) - III. Consequences of the conflict on PESCO - III.1. Consequences on the more binding commitments - III.2. Consequences on the projects - IV. PESCO: an innovative and useful tool, not yet unleashed to the full potential. | (Abstract) The history of a unified European defence has persistently shaped the European Union's foreign policy, evolving over time. The EU has worked on a robust and coherent Common Foreign and Security Policy (CFSP), particularly boosted by the European Union Global Strategy (EUGS) in 2016, which was issued after external shocks threatened Europe, necessitating strategic priorities to adapt to the evolving geo-political landscape. This pursuit mirrored the historic "spill-over effect", wherein threats led to coordi-nated integration. The subsequent development saw the launch of initiatives, including the European Defence Fund (EDF), Coordinated Annual Review on Defence (CARD), and Permanent Structured Coop-eration (PESCO) aiming at aligning national defence planning, promoting collaboration, and reinforcing European defence. The Russian military aggression against Ukraine in 2022 triggered a renewed need for integration and cooperation, Member States sought enhanced defence measures, including strengthening PESCO and NATO, and establishing the European Political Community (EPC). In this In-sight, we will explore how the shifting geopolitical landscape impacts European defence, especially fo-cusing on PESCO, a framework defined in the Treaty of the European Union (TEU) and introduced via the EUGS. After analysing PESCO's structure and key elements, we will assess whether the current situ-ation can drive greater integration and address conflict-related challenges. We will also examine potential future scenarios resulting from these changes.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 779-789 | European Forum Insight of 21 November 2023 | (Table of Contents) I. Introduction - II. L’activation inédite de la directive sur la protection temporaire - III. L’activation instructive de la directive sur la protection temporaire - IV. L’avenir de la directive sur la protection temporaire. | (Abstract) The Russian aggression in Ukraine led to the activation of the 2001 Temporary Protection Directive by the European Union to organise the reception of displaced persons fleeing the conflict. This is an un-precedented move, in the twenty years of its existence, this directive has never been implemented. It is therefore interesting to observe what this protection consists of, but also to recontextualise its activa-tion in the wider context of the European Union's immigration and border control policy. The mecha-nism is indeed very protective for the persons concerned, which puts into perspective the strict re-quirements of the Union regarding the access of third-country nationals to European territory.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 689-712 | Article | (Table of Contents) I. Introduction: libraries and copyright law in the digital networked environment. – II. Digital library developments: institutional organisation, purpose and functions. – III. Assessment: digital libraries under the modernised DSM directive: is EU copyright law currently future-proof? – III.1. Institutional organisation. – III.2. Purpose. – III.3. Functions. – III.3.1. Preservation. – III.3.2. Access. – III.4. Conclusion. – IV. Outlook: towards a future-proof library privilege in EU copyright law. – IV.1. Institutional organisation. – IV.2. Purpose. – IV.3. Functions. – IV.4. Conclusion. | (Abstract) Digitisation – and its implications for the creation and dissemination of cultural content – has been on the EU policy agenda for decades, notably in the field of copyright law. Yet, despite modernisation efforts from the 1990s onwards, the “library privilege” – i.e., the provisions regulating library functions – persistently focuses on physicality. For instance, the consultation of digital materials remains confined to library buildings. Given the increasing options for remote access to content, it is questionable whether this focus still works in the digital information society. Therefore, this Article aims to critically assess, first, whether EU copyright law is currently future-proof taking into consideration digital library developments on the one hand and copyright modernisation efforts on the other. It finds that the most recent addition to the EU copyright acquis, the Digital Single Market Directive (2019), offers some openings for interpretative space to accommodate the library’s evolving side. Second, in addressing the research and policy agenda for the years to come, the Article offers a way of thinking about a copyright law that flexibly balances right holder, library and user interests. Seeing that copyright law and libraries share goals in the organisation and dissemination of information, the argument is made that their relationship should not be “set in stone”: rather, copyright law should facilitate remote access at least to some extent. While the historical focus on physicality may have been intended to prevent the library privilege from becoming too broad in scope, this delineation rationale should be operationalised differently.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 647-663 | Article | (Table of Contents) I. Introduction. – II. Consumer law enforcement through computational investigations. – II.1. The CPC Regulation. – II.2. DSA. – III. Computational Measurements of Influencer Activity: a case study for digital enforcement. – IV. Consumer forensics: a new field for digital detectives. – IV.1. Consolidating data collection and analysis methods for consumer law. – IV.2. Classifying new forms of consumer harms. – IV.3. Developing new approaches to consumer protection. – IV.4. Exploring the legal and ethical implications of consumer forensics. – V. Conclusion. | (Abstract) Effective enforcement on digital markets is one of the most essential considerations for contemporary consumer law and policy. On digital markets, traders engage in very sophisticated commercial practices that are opaque to the average consumer. Online information is necessary for the monitoring of how companies engage in legal compliance, and where public authorities should intervene. This puts a lot of pressure on public administration to develop investigation and enforcement approaches that match the different consumer harms and needs arising out of digital markets. As it is virtually impossible to police technology practices without understanding the technologies and business models behind them, public authorities need to arm themselves with the means necessary to detect digital violations. This Article focuses on the digital enforcement of consumer protection law in the European Union and proposes a new field of research focused on the investigation and enforcement of consumer violations on digital markets in the form of “consumer forensics”. In the author’s opinion, consumer forensics is the answer to the question of how consumer enforcement regulation can become future-proof. As digitalization is rapidly affecting the way in which consumers are protected on the Internet, both the substantive and procedural dimensions of regulatory effectiveness will be impacted by evidence gathering to understand and further prove the existence of new online harms. To show the potential of this topic, the Article will offer some in-depth insights from a very specific topic of administrative scrutiny, namely measuring influencer marketing activities that are relevant for consumer protection.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 583-610 | Article | (Table of Contents) I. Introduction. – II. The evolution of the “New Approach” to harmonisation in the EU: setting the scene. – II.1. The “New Approach” to technical harmonisation. – II.2. The Digital Single Market. – III. Harmonisation in the Draft AI Act: old wine in a new bottle, or new wine? – III.1. Risk-based approach of the Draft AI Act. – III.2. The “New Approach” technique in the Draft AI Act. – III.3. “Privatization” of AI Regulation by ESOs and conformity assessment bodies. – IV. Future-proofing AI regulation through the “New Ap-proach”. – IV.1. The future-proofness from the perspective of the Internal Market. – IV.2. Future-proofness from the perspective of fundamental rights and ethics. – IV.3. The future-proofness from a democratic and legitimacy perspective. – V. Conclusion and recommendations. | (Abstract) In April 2021, the European Commission proposed a Regulation on Artificial Intelligence (AI) as part of a package of EU legislative harmonization measures that seek to tackle the societal challenges of digitalization and technological innovation. The proposed legislation draws heavily on the “New Approach” technique for the technical harmonization and standardization of goods. This raises several questions and concerns. Firstly, it can be questioned whether a harmonization technique that has been developed for health and safety standards in the offline, physical market, can be that easily transposed to the field of AI, where ethical and fundamental rights issues abound. Secondly, despite its success, the “New Approach” regulatory technique has been subject to much criticism, such as the responsibility of the manufacturers to carry out a conformity assessment, the role and decision-making powers of the private law standardization organizations and notified bodies, and the lack of public participation and public oversight in standardization and certification processes. These concerns are aggravated in the AI environment due to the pertaining legal, ethical and fundamental rights issues. This Article therefore seeks to explore the future-proofness of the proposed AI Act from three perspectives: i) the internal market; ii) protection of fundamental rights and iii) democratic legitimacy in the EU decision-making processes. Ultimately, it offers a broader reflection on the policy and legal implications of AI and proposes a number of recommendations on how to increase the fitness of the future AI Act, bearing in mind the balance between the economic and fundamental rights goals of the AI Regulation.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 579-582 | Article | (Abstract) This Special Section is devoted to assessing whether core areas and core values of European law are future-proof (and how they could or should be made future-proof) in light of developments in terms of digitalisation and technological innovation. It is the result of a joint project of researchers at the Utrecht Centre for Regulation and Enforcement in Europe (RENFORCE) at Utrecht University, focusing on the impact of digitalisation in different fields of EU law including EU internal market law, consumer protection law, data protection law, competition law, financial law, intellectual property law and criminal law. Digital technologies create various challenges, in many cases associated with the use of algorithms, the massive collection of personal data and the possibilities (and difficulties) of access to digital content. All these challenges require careful consideration, and regulation and enforcement arrangements which protect and balance the possibly conflicting values that we deem important in our societies, including innovation and technological development and protection of fundamental rights. Yet, it is exactly the continuous and fast-paced technological developments that make it difficult to regulate in these areas. In the EU, this response is predominantly shaped and guided within the multi-level legal order, whereby the EU legislature has gained a growing role in shaping our digital societies. The Special Section editors hope that the contributions provide food for thought, useful insights and inspiration for the process of making regulation and enforcement in the EU (more) future-proof for digitalisation – both within the specific fields of expertise and beyond.

(Series Information) European Papers - A Journal on Law and Integration, 8(2), 755-764 | European Forum Insight of 21 November 2023 | (Table of Contents) I. Introduction. - II. The establishment of the European Political Community: two rationales - III. Actors: the European Political Community and new EU accessions - IV. Processes: decision-making formally independent from EU structures - V. Instruments - VI. Conclusion: future scenarios | (Abstract) The European Political Community (EPC) is an institutionalised but flexible forum for political coordina-tion between European countries. It was established in the aftermath of the Russian invasion of Ukraine in 2022. While the EPC is only in its early stages, and therefore there is a significant element of volatility in the subject, this Insight reflects on how the EPC innovates in terms of actors, process, and instruments with respect to the European Union, the North Atlantic Treaty Organisation, and the Or-ganisation for Security and Co-operation in Europe. In terms of who is accepted as member, the EPC pursues both an inclusivity/exclusivity rationale of creating a geopolitical block across the continent and parallel integration rationale of offering some countries something more than the European Neigh-bourhood Policy but less than EU membership. In terms of processes, the EPC is formally, but by no means materially, separate from the EU. In terms of instruments, for the moment the added value of the EPC is in its presence. The Insight concludes with reflections on the future of the EPC, highlighting risks of duplication with those other organisations and issues of credibility.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 741-754 | European Forum Insight of 21 November 2023 | (Table of Contents) I. Introduction and an overview of the salient facts - II. The status of power infrastructures under international humanitarian law - II.1. Rising to the occasion: pushing for a narrower definition of military objectives - II.2. Can “dual-use objects” be indispensable to the survival of the civilian population? - III. The application of the principle of proportionality in case of attacks against dual-use objects: towards a more stringent standard? - IV. Concluding remarks | (Abstract) The wave of attacks launched by Russia against Ukraine’s power infrastructures since October 2022 represents one of the most debated and peculiar aspects of the current international armed conflict between the two countries. Although these types of attacks cannot be labelled as unprecedented nor understudied given their frequent occurrence in situations of armed conflict, some of the legal issues that they raise remain to this day unresolved and deserve to be further analysed and discussed. After setting the scene and providing an overview of the most salient facts, the present Insight will reflect on the so-called “dual-use” status of these targets, starting with questioning what this status entails and whether it is always correct to assume that the civilian function of dual-use objects does not figure into whether the object is a military objective for targeting purposes. After challenging this broadly permissive reading of art. 52(2) of Additional Protocol I to the Geneva Conventions, this Insight will turn to the application of the principle of proportionality in case of attacks against dual-use objects, supporting the view that this remains, to this day, the most promising - although not necessarily the only - option to accord greater protection to civilians from effects of attacks against facilities that are key to their survival.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 611-629 | Article | (Table of Contents) I. Introduction. – II. The Facebook case. – II.1. Case overview. – II.2. The opinion of the AG. – III. Dominance for GDPR purposes. – III.1. Market power and the GDPR. – III.2. Dominance in AG Rantos’ opinion. – III.3. The definition of “gatekeeper” under the DMA. – IV. Dominance and the validity of consent. – IV.1. Freely given consent under the GDPR. – IV.2. A two-tier approach. – IV.3. The legitimate interests legal basis. – IV.4. Obligations under the DMA. – V. Conclusion. | (Abstract) The GDPR is designed to render data protection rights more effective and to address the challenges created by the digital world. In line with the understanding of the right to data protection as data subjects’ right to have control over their data, the GDPR empowers data subjects through individual choice. However, the market power of big tech casts doubts on individuals’ ability to choose. In particular, reliance on consent is problematic when dealing with dominant platforms. If an individual does not have alternatives on the market, can the consent for the processing of personal data be considered as freely given? This issue is at the core of the case against Facebook brought by the German competition authority, now before the CJEU. This Article puts the case into context and discusses what it could mean for the regulation of big tech in the future. The focus is on the novel assertion of Advocate-General Rantos that dominance plays a role in the assessment of the freedom of consent under the GDPR. This statement raises two main issues surrounding the role of market power in the GDPR that this Article seeks to address. Firstly, how should data protection authorities assess dominance? Secondly, what role should dominance play in the assessment of the validity of consent? The Article aims to further the debate around how to ensure the continued future-proofness of the GDPR in the digital market, in light of the market power of tech companies. It proposes to introduce a two-tier approach which reduces the extent to which dominant firms can rely on consent for data processing.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 631-646 | Article | (Table of Contents) I. Introduction. – II. Personalised marketing and its potential to exploit consumer vulnerabilities. – II.1. Personalised marketing. – II.2. Potential to exploit consumer vulnerabilities. – III. Consumer protection against personalised marketing: shortcomings of the current EU legal framework. – III.1. The Unfair Commercial Practices Directive. – III.2. Three main obstacles in effectively protecting consumers. – IV. Recent legislative changes and proposals: only a partial solution. – IV.1. Introduction. – IV.2. Modernisation Directive. – IV.3. Digital Services Act. – IV.4. Artificial Intelligence Act. – IV.5. Conclusion. – V. Research and policy agenda: towards future-proof marketing law. – V.1. An overall redesign of EU marketing law. – V.2. Research and policy agenda. – VI. Conclusion. | (Abstract) While companies used to advertise primarily via mass media, marketing (in particular online) is becoming increasingly personalised. Personalised marketing offers benefits to consumers, but can also exploit their vulnerabilities. For example, personalised marketing enables companies to specifically target psychological weaknesses in consumers. This threatens their autonomy and increases the power asymmetry between companies and consumers. EU marketing law, and in particular the Unfair Commercial Practices Directive, aims at protecting consumers against economic harm by reducing power asymmetries between companies and consumers. This Article will discuss to what extent EU marketing law is future-proof in terms of its fitness to effectively protect consumers against personalised marketing techniques. It will be argued that the law is currently unfit to effectively protect consumers, and that recent legislative changes and proposals only address this problem to a limited extent. It is argued that a “quick fix” to make EU marketing law future-proof is not available, and that an overall redesign of EU marketing law is necessary to protect consumers against the personalised marketing techniques of today and tomorrow.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 713-740 | Article | (Table of Contents) I. Introduction: data retention and future-proofing. – II. “The Lighthouse for Privacy Rights in Europe”? Past and present CJEU case law on communications data retention. – II.1 Retain in haste, repent at leisure: the legacy of Directive 2006/24/EC. – II.2. La Quadrature du Net and Privacy International: from crime to national security (and back). – II.3. CJEU guidance on “targeted” retention for serious crime. III. Fu-ture-proof data retention. – III.1. How future-proof is the case law? ePrivacy reform and judicial fears of profiling. – III.2 First national “targeted” retention laws: the exception becomes the rule? – III.3. What we talk about when we talk about data retention: tomorrow’s metadata and future necessity. – IV. Conclusion. | (Abstract) In many countries worldwide, everyone’s communications metadata is pre-emptively retained by telecoms and internet service providers for possible later use by the relevant public authorities to combat crime and safeguard national security. Within the European Union, however, for nearly a decade the Court of Justice of the European Union (CJEU) has consistently rejected the pre-emptive “general and indiscriminate” retention of communications metadata for the purpose of combatting serious crime – although its position on safeguarding national security is more nuanced. For crime, the CJEU continues to insist that any retention of traffic and location data be done on a “targeted” basis, leaving the details of any such scheme to the relevant legislator (EU or national). This Article discusses the prospect of a return to EU-level data retention from a future-proofing perspective. It does so by summarising the most relevant recent CJEU case law, noting its internal consistency but arguing that its future resilience should not be taken for granted, particularly with the ePrivacy Regulation on the horizon. It offers a first analysis of efforts to implement “targeted” retention in national legal systems. Should any fresh EU legislative proposal on data retention emerge, it is argued that in addition to fully complying with the relevant CJEU standards, it will also be essential to gauge the desirability of such a reform in light of technological shifts in the information labelled “metadata”, and the intertwined condition that any such harmonising measure must be demonstrably effective over time.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 561-578 | European Forum Insight of 27 september 2023 | (Table of Contents) I. Introduction. - II. Pushbacks and their human rights implications. - III. Instrumentalisation as justification for pushbacks in national rhetoric and law. - IV. Instrumentalisation arguments infiltrating the EU. - V. EU regulatory responses to “hybrid threats”. - VI. The worst of a series of bad legislative proposals. - VII. Fundamentally different situation on the ground? - VIII. Conclusion and discussion. | (Abstract) This Insight examines the discourse surrounding the instrumentalisation of migration and its impact on monitoring the EU’s external borders. It analyses the regulatory response, focusing on the Instrumentalisation Regulation, to determine if an exceptional emergency response is justified. The article explores recent arguments regarding changes in factual circumstances, such as pushbacks and their human rights implications. It also investigates the invocation of hybrid threats and instrumentalisation of migrants in national legal contexts (Greece, Spain, Poland, Lithuania and Latvia) to justify systematic pushback practices. The Insight discusses EU institutions’ adoption of these arguments and their inclusion in legislative proposals. The article critically examines the regulatory proposals from a fundamental rights perspective, questioning the extent to which the existing protection framework can be derogated. The Insight assesses whether a fundamental shift has occurred and if it warrants an exceptional response to safeguard the Area of Freedom Security and Justice, Schengen, and the Common European Asylum System. It offers an “insight” contributing to the ongoing scholarly conversation by providing a timely analysis of the legal implications of the instrumentalisation of migration, considering it as a continuation of the securitisation paradigm rather than a paradigm shift requiring an exceptional emergency response, as exemplified by the proposed Instrumentalisation Regulation.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 547-559 | European Forum Insight of 22 September 2023 | (Table of Contents) I. Does the Aranyosi and Caldararu test represent the sole and unchanging solution to fundamental rights issues in the EAW system? - II. The Aranyosi and Caldararu test remains unchanged: the ECJ ruling in Puig Gordi - II.1. Facts of the case and preliminary questions - II.2. The Court’s reasoning - III. The Aranyosi and Caldararu test is not the only answer to fundamental rights issues in the EAW system: The ECJ ruling in E. D. L. - III.1. Facts of the case and preliminary question - III.2. The Court’s reasoning - IV. Commentary: towards a renewed understanding of the Aranyosi and Caldararu test - IV.1. Two cases, two approaches: why? - IV.2. The ultimate (but not the only) remedy for securing fundamental rights - V. Conclusions | (Abstract) This Insight offers a combined reading of the ECJ rulings in Puig Gordi and E. D. L., with a view to investi-gating their impact on the theorisation and place of the Aranyosi and Căldăraru test in the EAW frame-work. Notwithstanding multiple calls for overcoming that twofold assessment, the Court has strenu-ously upheld the test’s structure in subsequent case-law. Against this background, the Puig Gordi and E. D. L. rulings give further insight into the ECJ's approach towards securing fundamental rights in the EAW system. On the one hand, the Court in Puig Gordi has halted any aspiration to modify the Aranyosi and Căldăraru test; on the other hand, the E. D. L. ruling clarified that the test does not constitute the only avenue to protect the defendant’s fundamental rights. In this light, the Insight shows that the Aranyosi and Căldăraru test shall be construed as the ultimate remedy to that aim. Executing authorities shall undergo the two-step assessment only if the EAW Framework Decision does not afford any alternative legal avenue to avoid serious risks of violation of the defendant’s fundamental rights. This approach is likely to project the fundamental rights discourse in the EAW context to a new dimension. The ECJ’s ex-plicit refusal to modify the Aranyosi and Căldăraru test may dissuade further calls in that direction. Con-versely, the ECJ reasoning discloses that the EAW Framework Decision may afford valuable and under-estimated alternatives to the two-step test, whose potential still needs to be explored.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 537-546 | European Forum Insight of 28 August 2023 | (Table of Contents) I. Introduction - II. The recognition and the engagement of the EU with Kosovo - III. The approach of the GC: a country, not a State? - IV. The Paradox created by the CJEU: a Country, but not a State? - V. A sui generis solution? - VI. Conclusion: diluting international statehood? | (Abstract) In the case of Spain v Commission the General Court and the Court of Justice of the European Union had to determine whether Kosovo fell into the scope of the definition “third countries” for the purposes of art. 35 of Regulation (EU) 2018/1971 (the “BEREC Regulation”). Despite offering differing viewpoints, the two courts arrived at the same conclusions. Ultimately, the CJEU ruled that the term “country” is interchangeable with the term “State” and that Kosovo could be treated as a “third country” for the participation in the Body of European Regulators for Electronic Communications (BEREC). Nevertheless, the CJEU contended that the treatment of Kosovo as a country, and thus as a State, did not impact the position of Member States towards its recognition in international law. This Insight focuses on this ap-parent paradox and its implications for the construction of the concept of statehood in international law. It is argued that the CJEU appears to imply the potential for multiple definitions of statehood, contingent upon their relevance in different contexts. This perspective faces the risk of contributing to the gradual dilution of this formerly granitic concept.