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(Series Information) European Papers - A Journal on Law and Integration, 2022 7(3), 1325-1356 | Article | (Table of Contents) I. Introduction. - II. CSDP: Between a common and differentiated policy. - II.1. CSDP as a common policy of the EU. - II.2. Differentiated integration in CFSDP. - III. PESCO's microcosm of differentiated integration. - III.1. The awakening of the "Sleeping Beauty". - III.2. Participation in PESCO. - III.3. PESCO projects. - IV. PESCO: Contributing to a common security and defence policy? - IV.1. General principles in EU CFSP and their enforcement. - IV.2. Consistency in relation to differentiated integration in PESCO. - IV.3. Sincere cooperation in relation to differentiated integration in PESCO. - V. Conclusion- | (Abstract) The use of Permanent Structured Cooperation (PESCO) by the European Union to manage defence cooperation between its Member States is the most recent example of Differentiated Integration (DI) in the EU. Yet differentiation may come at a price. The main aim of the present Article is to assess to what extent defence cooperation under the umbrella of PESCO can be cut up in pieces and yet still be considered a common defence adhering to the EU's general principles of consistency and sincere cooperation. The question, therefore, is whether DI in PESCO is limited by these principles, and consequently, whether the CSDP, despite the differentiation, still contributes to a common policy. In short, the question is whether there is a tension between commonness and differentiation in EU security cooperation.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(3), 1191-1209 | Article | (Table of Contents) I. Introduction. - II. Potential for legislative differentiation: Space offered by the EU legislature. - II.1. Comparing the GDPR and the SAD. - II.2. Legislative contexts. - II.3. Zooming in: Identifying discretion. - III. Using the potential: Member States' implementation. - IV. Alternative to differentiated integration? - IV.1. Real decision-making authority or decisions on details? - IV.2. Political decision-making or fitting the directive into pre-existing structures? - V. Conclusions. | (Abstract) The "uniformity-based"-model of EU integration has lost considerable ground. It has become more and more considered as a model which takes too little account of national differences in economic, social, cultural and constitutional conditions and in political views. Differentiated integration (DI) raises issues, however. Equality of the Member States and the effectiveness of EU law and policy may be seriously impaired. This Article explores the potential of legislative differentiation as an alternative to more classic forms of DI. With legislative differentiation, we refer to the situation in which Member States are allowed to make substantive policy choices in the implementation of EU legislation and use such flexibility to customize EU legislation to their own domestic contexts. We explore this potential by assessing two case studies: the General Data Protection Regulation and the Child Sexual Abuse Directive. The analysis of these case studies shows that legislative differentiation is a multifaceted phenomenon that indeed has the potential to be an alternative to the classic forms of DI. Yet, in practice sub-optimal results have been found as well. Therefore, more consideration and a better incorporation of diversity in legislative processes is required to further enhance the potential of differentiated legislation.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(3), 1265-1285 | Article | (Table of Contents) I. Introduction. - II. Differentiated law prior to Brexit. - III. Regime complexity and EU relations with non-Member States. - IV. The five worlds of financial market regulation. - IV.1. Securities and assets law and regulation. - IV.2. Banking law and regulation. - IV.3. Financial reporting law and regulation. - IV.4. Company law and regulation. - IV.5. Insurance law and regulation. - V. Conclusions. | (Abstract) How does Brexit affect the manner in which the EU manages financial rules and regulations with the UK? How does it change the EU's need to rely on differentiated law internally to overcome intergovernmental conflict over the proposed legislation? This Article examines five different areas of financial market regulation and shows how significant differences between the UK and the rest of the EU, but often Germany, could only be combined in EU law by significant discretions in how national law applied to a common policy, and protections to keep those distinctions intact. A consequence of Brexit is that the EU need not rely on differentiated law as much as in the past. A risk to this convergence is the potential for the EU becoming a rule taker from the UK through regime complexity, which would allow the UK to de facto determine EU financial market law.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(3), 1165-1190 | Article | (Table of Contents) I. Introduction. - II. Sources of rigidity. - II.1. Omnidirectional reciprocity as a source of rigidity. - II.2. Interconnectedness as a source of rigidity. - II.3. Effectiveness as a source of rigidity. - II.4. The clash between rigidity and the dynamics of differentiation. - III. Brexit insights for future attempts at structural differentiation. - III.1. The transition period as sheer rigidity. - III.2. The Northern-Ireland Protocol: Flexible borders and rigid law. - III.3. The TCA as the residual space of rigidity. - IV. Conclusion: Rigidity roadblocks to future structural integration. | (Abstract) This Article argues that the legal space for truly structural forms of differentiation in the EU is limited by several sources of rigidity. Sources of rigidity are thereby understood as legal rules and principles that, either by themselves or in interaction with other rules, principles and material facts, limit the scope for structurally significant differentiation in the EU's legal and constitutional set-up. A source of rigidity can therefore be broader than a single legal rule or principle because the rigidity may stem from a combination of or interaction between multiple principles, rules and facts. Using Brexit as a prism, this Article identifies at least three such sources of legal rigidity, being reciprocity, interconnectedness and effectiveness. These sources of rigidity also place significant limits on the possible dynamics of differentiation. It is demonstrated how Brexit brought these sources of rigidity to the surface, and how legal rigidity can and likely will collide with an increasing political desire for more structural differentiation in the future.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(3), 1229-1242 | Article | (Table of Contents) I. Introduction. - II. Basic assumptions regarding crises, soft law and differentiation. - III. The dynamics of soft law, differentiation/disintegration: Three scenarios. - III.1. Soft law, territorial differentiation, disintegration. - III.2. Soft law, territorial differentiation, integration. - III.3. Soft law, uniformly applied, integration. - IV. Factors making these scenarios more or less likely. - IV.1. Factors inherent in the soft law instrument. - IV.2. Factors related to the system of the EU. - V. Conclusion. | (Abstract) The purpose of this Article is to provide a framework that helps to analyse the relationship between soft law, differentiation, and the prospects of integration/disintegration. More specifically we aim at developing a typology of scenarios in order to show how soft law contributes to our understanding of differentiation and to the overall discussion about integration/disintegration in the European Un-ion, in a context of crises. Section II presents and discusses three main assumptions: the EU is facing a context of political and economic turbulences; territorial differentiation has increased since the 1990s; EU policies more and more rely on soft law. Against this backdrop, we seek to capture, in section III, the dynamics between soft law, differentiation and integration/disintegration, by using three main scenarios (soft law leads to more territorial differentiation; soft law leads to differentiation but then results in more integration; soft law triggers integration). Section IV is dedicated to the factors making these three scenarios more or less likely to occur. Two types of factors are distinguished: those which are inherent in the soft law instruments and those related to the EU system of governance. In the end, we argue that further investigation is needed in order to verify whether the legal and political EU system is strong enough to prevent normative and territorial differentiation from escalating, and preserve the integration-through-law narrative.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(3), 1243-1263 | Article | (Table of Contents) I. Introduction. - II. The evolution of differentiated integration in the field of asylum. - III. Flexible solidarity in the New Pact on Migration and Asylum. - III.1. The Proposal for a Regulation on Asylum and Migration Management: A fresh start? - III.2. The management of flexible solidarity. - III.3. Return sponsorship: A concept that did not please anyone. - IV. Solidarity in cooperating with third countries in the New Pact on Migration and Asylum. - V. The gradual approach: Towards a voluntary solidarity mechanism. - VI. Conclusion. | (Abstract) Flexible solidarity is presented by the Commission in the New Pact on Migration and Asylum as a solution to break the deadlock in the reform of the EU asylum policy. The aim of this Article is to analyse to what extent the development of flexible solidarity in the field of asylum will allow the EU to address the shortcomings that the CEAS is facing today. The key question is whether differentiation as regards solidarity serves to further develop the EU asylum policy by introducing a useful degree of flexibility to accommodate the different interests of the Member States or the multiplication of forms of solidarity will lead in the long run to more disintegration. It will also be assessed to what extent the gradual approach followed by the French Presidency of the Council in the first semester of 2022 will allow to make concrete progress on the New Pact on Migration and Asylum and achieve the ambition of a comprehensive asylum and migration policy at EU level in the future.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(3), 1141-1144 | Article | (Abstract) This Article provides insights into the question of whether there is a tension between commonness and differentiation in EU policies, in particular post-Brexit. Brexit triggered new discussions on so-called differentiated integration (DI) in the European Union. Not only was Brexit perceived as a potential tool to take further integrative steps in certain policy areas, it also pointed to the idea that there is a risk in trying to force each and every Member State to follow the same pace. Hence, while part of the scholarship sees Brexit as a tragedy for the European integration process, others have pointed to possible advantages that would allow for further integration in certain areas. In any case, the present Special Section underlines that Brexit seems to have renewed the debate on the ways in which the EU Member States could proceed, together or in smaller groups. It takes stock of the DI possibilities in different concrete policy areas and highlights options and obstacles.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(3), 1303-1324 | Article | (Table of Contents) I. Introduction. - II. PESCO and differentiated integration in European Defence. - II.1. Approaching the definition of differentiated integration. - II.2. Pre-PESCO landscape. - II.3. Differentiated integration via PESCO. - III. The participation of third States. - IV. Strategic Review 2020. - V. Conclusions. | (Abstract) After decades of bi-national and multinational military programmes that arrived in dribs and drabs, and once the United Kingdom decided to withdraw from the EU, the launch and implementation of the Permanent Structured Cooperation (PESCO) in 2017 has emerged as a real game-changer. Thus, favouring differentiated integration in defence matters within the European Union after Brexit. This Article focuses on the analysis of both horizontal and vertical differentiated integration from an eminently practical point of view. All of this, aimed at illustrating the distinction between the pre-PESCO scenario and the current one with 60 projects underway within its framework. In this sense, the analysis makes it possible to distinguish a real group of frontrunners in the implementation of PESCO and the window of opportunity that opens up by allowing third states to participate in individual projects, with particular attention to the case of the United Kingdom.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(3), 1145-1164 | Article | (Table of Contents) I. Introduction. - II. Setting the scene: Use and "non-use" of enhanced cooperation. - III. Legal frame-work for enhanced cooperation. - III.1. Establishing of enhanced cooperation. - III.2. The implementation of enhanced cooperation. - IV. On a related note: Pre-Brexit negotiations and differentiation. - V. Outlook: Dusk or dawn for enhanced cooperation? | (Abstract) Enhanced cooperation under art. 20 TEU is a tool introduced by the Treaty of Amsterdam to allow a group of at least nine member states to adopt rules of secondary law that binds only these participating States. Introduced as an instrument to tackle problems of a Union of 27 (and more) States, it has only been used on a few occasions. However, its use (and non-use) is not only dependent solely on the number of Union member states. Shifting political attitudes in the member states and - plainly and simply - the legal framework for this tool of differentiate integration influence how and when enhanced cooperation can and will be used as an instrument to overcome deadlocks in negotiation. Against the background of member state practice, the Article sets out to explore the potential of enhanced cooperation.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(3), 1211-1227 | Article | (Table of Contents) I. Introduction. - II. Conceptual confusion. - III. Learning the lessons on differentiated integration. - III.1. The advent of Brexit. - III.2. The challenge for the future. - IV. Conclusion. | (Abstract) Historically, the use of differentiated integration mechanisms has been based on the idea of the widening and deepening of the European Union, necessitated by the enlargement of the bloc through the addition of Member State countries. The advent of Brexit means that we are in a rather different situation today, where the monodirectional march towards deeper, uniform integration between an ever increasing number of States is neither inevitable nor assured. The differences between all of the then 28 individual Member States in the pre-Brexit Union were multifarious. These differences have not disappeared along with the UK upon its exit from the Union. They still exist between the remain-ing 27 Member States and will likely increase in prominence as the European Union pursues its future path. Addressing those differences will require an alternative approach to uniform integration from the EU, it will require differentiated integration. This Article suggests that there are lessons to be learnt on differentiated integration from applying Brexit as a framework. The confusion surrounding differentiated integration as a concept, and the prominent role of the UK in availing itself of opportunities to utilise differentiated integration mechanisms, has led differentiated integration to be attributed to the UK as a form of British exceptionalism. Brexit is not just an opt-out but the ultimate opt-out, a form of flexibility sought from outside the European Union, consequent on a lack of wider acceptance of differentiated integration in terms of both legal permissiveness and extent as well as attitude within the Union. The maintenance of differences between the remaining Member States means that there needs to be increased open acceptance of the likely need for greater differentiated integration in the future.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(3), 1287-1302 | Article | (Table of Contents) I. Introduction. - II. Post-Brexit security and defence cooperation as differentiated disintegration - III. Theresa May and the proposed "security partnership". - IV. The trade and cooperation agreement and beyond. - V. The war in Ukraine: A game changer? - VI. Conclusion. | (Abstract) Research on differentiated integration has flourished in recent years, highlighting the political and efficiency gains to be had from selective participation and third country engagement in EU policy areas. Proposals for an EU-UK security and defence agreement represented a paradigmatic example of differentiated disintegration, for which both strategic and political prospects initially appeared positive, yet which ultimately foundered on the back of the EU's reluctance to create new third country models and subsequent political upheaval in the UK. This Article asks why these proposals failed and what this can tell us about the politics of differentiated (dis)integration, focusing on the referendum to the recent Ukraine crisis, and drawing on several elite interviews conducted with policymakers in London and Brussels. It shows that while the strategic benefits of differentiation increased following the Brexit vote, the growing concern in Brussels for the precedent set by Brexit, the collapse of issue-specific dynamics into a singular concern for UK "cherry picking", and the rightward shift in UK politics occasioned by the Brexit negotiations all undermined the prospects for a differentiated outcome in security and defence. The Ukraine crisis, while precipitating significant changes in many European states, had thus far failed to alter the new status quo locked in after Brexit.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(3), 1131-1139 | European Forum Insight of 10 February 2023 | (Table of Contents) I. Introduction. - II. The Supreme Court's logical solution considering EU case law. - III. The invocation of the ECHR, an option with limited effects. - IV. A (very) unfavourable solution for the investor and a case to be continued. | (Abstract) In the Swedish Supreme Court's epilogue to the PL Holdings case, the expropriated company lost all its claims against Poland, which had expropriated it. Applying the case law of the Court of Justice of the European Union (CJEU) on intra-European investment arbitration, the Supreme Court did not merely invalidate the ad hoc arbitration clause that served as the basis for the awards against Poland in 2017. Dismissing the argument of denial of justice and the weakness of the rights guarantees offered by the Polish court system to which the investor was referred, the Supreme Court also an-nulled the arbitration awards on the grounds of Swedish procedural public policy and ordered the investor to pay Poland's full costs. This ruling, not surprisingly, is far from the end of the PL Holdings case. By overturning the 2017 arbitration awards by applying CJEU case law, the Swedish Supreme Court shifts the problem by creating a denial of justice. Investors whose favourable awards are thus set aside will have to turn to the courts of the investment's host state, which is precisely what they sought to avoid by claiming arbitration based on an intra-European BIT or, as in this case, an ad hoc arbitration agreement. There is every reason to believe that new questions will be put to the CJEU and, in the future, to the European Court of Human Rights.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(3), 1121-1130 | European Forum Insight of 4 February 2023 | (Table of Contents) I. Introduction: framing the problem. - II. Simple and constructive abstentions as flexibility mechanisms under CFSP. - III. Constructive abstention and international economic sanctions: constructive abstention as limited to the CFSP act... - IV. ... and constructive abstention applying to TFEU regulations. - V. Constructive abstention and the duty of loyal cooperation: too a heavy burden in the context of sanctions? - VI. Concluding remarks. | (Abstract) Constructive abstention, provided for in art. 31(2) TEU, has been conceived of as an instrument applicable to CFSP acts. As art. 215 TFEU establishes an integrated regime in which CFSP decisions and TFEU regulations are interdependent on each other, the issue arises as to whether the scope of constructive abstention can be extended to cover not only the CFSP decision but also its implementing regulation. This Insight argues that constructive abstention should apply not only to the CFSP act, but also to the regulation. In turn, this conclusion calls for reflection on the scope and consequences of the duty of loyal cooperation in the context of restrictive measures and, more generally, on the effectiveness of constructive abstention in this field.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(3), 1113-1119 | European Forum Highlight of 31 January 2023 | (Abstract) This Highlight provides an overview of the Digital Markets Act (DMA) from the perspective of consumer protection. The DMA constitutes a part of a long-anticipated digital package of cross-cutting legislation proposed by the European Commission in 2020. The DMA entered into force in 2022 with the objective of ensuring a safe, fair, and contestable digital market. Besides the influx of legislative acts in digital law, the year 2022 was also marked by the 50th anniversary of EU consumer protection. The author takes advantage of this moment to reflect on how the DMA fits in the broader regulatory context of consumer protection and investigate what improvements the DMA brings for consumers. The main problem with the Regulation lies in the ambiguity of its goals, and its approach to the notion of "fairness" in particular. On the one hand, the DMA improves consumer rights through multiple provisions which contribute to increasing interoperability in the market, ensuring easy uninstallation, subscription cancellation, data portability and data transfer, as well as eliminating unfair market practices such as self-preferencing, tying, and tracking users without their proper consent. On the other hand, the DMA treats consumers merely as passive end users in the digital market and it does not engage them fully in the introduced institutional and procedural proceedings. The DMA also misses the opportunity to provide the long-anticipated updated definition of "consumer", which could lead to a recalibration of the EU consumer protection law, and it does not exploit fully the potential of consumer protection.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(3), 1005-1011 | European Forum Highlight of 11 January 2023 | (Abstract) The possibility to apply by analogy art. 351 TFEU to agreements concluded by the Member States after the deadline set out in the provision yet before the granting of a new competence to the Union has long been discussed by the scholarship. However, until very recently, the Court of Justice had always found a way to avoid the question. In Generalstaatsanwaltschaft München v HF, the Court has adopted a restrictive interpretation of the provision in question, thus ruling out its application by analogy.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(3), 993-1004 | European Forum Insight of 3 January 2023 | (Table of Contents) I. Introduction. - II. Facts of the case and preliminary questions. - III. The Court's response. - IV. KL v Grundza: stronger demand for flexibly assessing double criminality. - IV.2. The irrelevance of a partial lack of double criminality. Towards a flexible, prima facie appraisal of the facts. - IV.3. The marginal role of the principle of proportionality of penalties. - V. Concluding remarks. | (Abstract) The Court of Justice provided a comprehensive interpretation of the dual criminality requirement under Framework Decision 2002/584/JHA when it handed down its judgment in the KL judgment (case C-168/21 Procureur général près la cour d'appel d'Angers ECLI:EU:C:2022:558). The case at hand raised three intertwined legal issues. Firstly, whether the double criminality criterion is fulfilled where the relevant offences in the issuing and executing Member States aim at protecting different legal interests. Secondly, whether an accused person's refusal to surrender could be grounded on a partial lack of dual criminality. Lastly, whether the execution of a European Arrest Warrant may be denied in the event of a supervening disproportion of the penalty due to the said lack of double criminality. This Insight highlights how this ruling allows the executing authority significant flexibility when carrying out a double criminality check, with a view to minimising the applicability of the grounds for refusal in question. Comparing the KL judgment with the only existing precedent, it will be argued that the Court is increasingly oriented towards an abstract assessment of double criminality. A few final considerations will highlight the persistence of an effectiveness-oriented approach to mutual recognition and its exceptions.

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(3), 1247-1250 | Article | (Abstract) As European Union competences gradually increase, criminal law is one of the areas of EU law on which most attention is focused. At the heart of this field, criminal procedural law is made particularly interesting by its position at the intersection of two sectors that were traditionally excluded from the European Union's harmonisation competences: criminal law and procedural law. Harmonisation and the "cross-fertilisation" of criminal procedural law is happening first through the influence of technical and institutional adjustments necessary to improve communication and cooperation between judicial authorities or to accommodate new actors such as the European Public Prosecutor's Office (EPPO), second through the establishment of common (or, in any case, compatible) procedural standards as a necessary complement in order to ensure the efficiency of cooperation mechanisms. Although the agenda set in the Tampere8 and Stockholm9 programmes remains the main source of inspiration for EU interventions in criminal procedural law, the changing political landscape has led to greater importance being given to topics such as terrorism and the need to preserve the rule of law. This Special Section is the result of a conference held at the University of Nantes on 6 and 7 February 2020, titled Towards European Criminal Procedural Law. It includes most of the papers presented at the event, focusing on two main themes: the systemic requirements for a European law of criminal procedure and the different instruments and rules contributing to the emergence of this new field of European law.

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(3), 1231-1246 | Article | (Table of Contents) I. Introduction: the Special Section and the MELA Project. - II. Mnemonic constitutionalism and a wider challenge of mnemocracy. - III. Mnemonic constitutionalism in Hungary. - IV. Mnemonic constitutionalism in Poland. - V. Conclusions. | (Abstract) This Article summarizes the conclusions for the Special Section on memory laws that was published by European Papers in two parts over 2020, and explores the nexus between the emerging phenomenon of mnemonic constitutionalism and democratic backsliding. It looks at their interactions through the lens of the legal governance of history and the historical policy implemented by the Central and East European (CEE) States, with Poland and Hungary as the prime subjects of consideration and analysis. The mushrooming of memory laws in CEE throughout the 2010s, which went hand-in-hand with democratic backsliding in the region, is well documented in the Special Section. Memory laws (lois mémorielles) initially emerged as a specific phenomenon within criminal law in Western Europe almost three decades ago. However, the recent wave of memory laws in CEE transcends criminal legislation and has acquired constitutional significance, which this Article analyses under the heading of mnemonic constitutionalism. After setting out an analytical framework of mnemonic constitutionalism, the Article focuses on the two specific CEE examples of Hungary and Poland. In the last decade, both countries have promulgated either constitutional (in case of Hungary) or quasi-constitutional (in case of Poland) provisions that indicate a strong turn towards mnemonic constitutionalism. The Article concludes that Fidesz (in Hungary) and PiS (in Poland) regimes perceive mnemonic constitutionalism not only as an ideological basis for the governance of historical memory but also as an ontological foundation to justify "illiberal democracies".

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(1), 85-87 | European Forum Highlight of 16 May 2023 | (Abstract) This Highlight argues that claims of the existence of a Community of Law, a Union of Law or an Area of Law with respect to the European Union would also require a unified scientific community. Several reasons why such common scientific space is wanting are discussed and some solutions for betterment are offered, with an optimistic outlook.

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(2), 983-988 | Dialogue | (Abstract) This contribution to the Dialogue discusses the contribution by Federico Fabbrini, in which he proposes an innovative way forward for the reform of the European Union (F. Fabbrini, Reforming the EU Outside the EU? The Conference on the Future of Europe and Its Options, in European Papers, Vol. 5, 2020, No 2, www.europeanpapers.eu, forthcoming). Given the extreme difficulty of reaching a unanimous agreement among all the Member States on a formal revision of the European Treaties, he proposes the use of international agreements among "willing" States to take forward an ambitious reform. This would take the form of a "Political Compact" among those States, whereas the other States would not participate in it and would not be bound by its content. This contribution discusses the legal feasibility of this "Political Compact" option.

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(3), 1573-1576 | European Forum Highlight of 4 November 2020 | (Abstract) This Highlight introduces the European papers special focus on pre-trial detention and its alternatives under EU law. It frames the highly controversial topic of overuse of pre-trial custodial measures within the Unions system of judicial cooperation in criminal matters. Specific attention is devoted to the European supervision Order and to the vertical division of competences between the EU and its Member States in its sensitive domain.

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(3), 1435-1450 | European Forum Insight of 10 November 2020 | (Table of Contents) I. Introduction. - II. COVID-19, human rights and shareholder primacy. - III. The UNGPs, the scope of the corporate responsibility to respect and the COVID-19 crisis. - IV. The content of the corporate responsibility to respect and the COVID-19 crisis. - V. Human rights due diligence and the COVID-19 crisis. - VI. Post-pandemic developments: the EU path towards mandatory human rights due diligence laws. - VII. Conclusions: actors, responsibilities and rights in the post-pandemic society. | (Abstract) COVID-19 has prompted unprecedented changes to daily life across the EU and has affected the enjoyment of many of the rights set out in human rights international treaties. While the current debate on the impact of COVID-19 on human rights mainly has focused its attention on the role of States, on the emergency measures they have to adopt to contain the Pandemic spread and on the measures they are urged to implement to safe-guard rights of individuals, less attention has been devoted to the role played by the private sector. The objective of the paper is exactly to review such a role and to assess, in the light of the UN Guiding Principles on Busi-ness and Human Rights (UNGPs), the scope and the content of the Corporate Responsibility to Respect (CRtoR). Under the UNGPs, in effect, enterprises are asked to implement responsible business conduct by respecting human rights in the course of their operations and throughout the entire value chain. Companies are asked to take the necessary measures to prevent their activities from having a negative impact on human rights and, if an impact is originated, to prevent, mitigate and remedy it. This framework applies of course also in respect to the human rights risks associated to pandemic outbreaks, such as the COVID-19 crisis.

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(3), 1511-1530 | European Forum Insight of 4 November 2020 | (Table of Contents) I. Introduzione. - II. La divisione dell’Isola di Cipro e il non riconoscimento della Repubblica turca di Cipro del nord. - III. Gli accordi di delimitazione della piattaforma continentale e/o della ZEE conclusi da Cipro, Turchia e Grecia e le attività illecite condotte dalla Turchia. - IV. La reazione coesa dell’Unione europea alle attività illecite turche. - V. Le particolarità delle misure restrittive dell’Unione contro uno Stato candidato all’adesione all’UE ma distante da essa. - VI. Quale ruolo diplomatico per l’Unione europea nel contesto della crisi del Mediterraneo orientale? | (Abstract) This Insight examines the EU’s reaction to the breaches of the territorial sovereignty of Cyprus and Greece by Turkey in the context of the crisis of the Eastern Mediterranean sea which developed between 2019 and 2020. The EU has reacted by adopting restrictive measures against two Turkish nationals responsible for drilling operations authorised by Turkey in the territorial sea and in the exclusive economic zone of the Republic of Cyprus. The individual restrictive measures examined in this paper are adopted for the first time against a candidate to the EU membership and a NATO member in order to protect the sovereign rights of one its Members, namely the Republic of Cyprus. The territorial dispute between the latter and Turkey, on the exercise of sovereignty over the marine areas around the island of Cyprus has extended to Greece due to the sismic activities carried out by Turkey vessels in waters included in the Greek continental shelf. Turkey, which is not part of the UNCLOS, has also delimited the continental shelf with Libya and has an interest in exploiting the natural resources on the continental shelf of both Greece and Cyprus. This contribution illustrates the various diplomatic initiatives taken to solve the territorial disputes and reflects on the diplomatic role that the EU may play in order to settle the dispute between the Parties.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(3), 981-992 | European Forum Insight of 23 December 2022 | (Table of Contents) I. A competition policy fit for the digital transition? The Commission's view. - II. The complementary role of competition law: a dynamic balance between rules and exceptions. - III. The degree of (de)centralisation of public enforcement to ensure the dynamic balance. - IV. Final considerations. | (Abstract) The European responses to the COVID-19 outbreak have triggered an ongoing review process of competition rules and enforcement procedure to support the Union's priorities. In this context, the European Commission published the Communication 'A Competition Policy Fit for New Challenges' with the aim of underlining the ability of competition law to facilitate the green and digital transitions, and to strengthen the resilience of the Single Market. This Insight reflects on the substantive and procedural challenges posed by the digital transition. Indeed, the complementary role of competition law to stimulate the achievement of the digital targets is characterised by two tensions, relating respectively to the interpretation and application of competition rules and to the degree of centralisation with regard to the enforcement mechanisms. In the author's view, EU competition law will offer dynamic substantive and procedural responses to the challenges of the digital transition.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(2), 833-855 | Article | (Table of Contents) I. Introduction. - II. Expanding the single market with(out) the EU enlargement. - II.1 EEA contribution. - II.2 CEECs transformative experience. - III. WB-EU economic integration and (limited) access to the single market. - III.1 SAP as a (new) frame of enlargement. - III.2 Way forward perspectives. - IV. Concluding remarks. | (Abstract) The promised European future for the Western Balkans still seems to be distant and uncertain, in spite of the many geo-strategic, political, economic and security arguments in favour of completing the process of unification. On the one side, the European integration process through economic and political reforms should lead these countries to become EU members and set high expectations of what the prospects of membership should deliver in the region. On the other hand, the countries are still far from ready for membership while the EU political commitment is not accompanied by more tangible action which questions the credibility of enlargement policy. Over the recent years, there is a growing need for a renewed narrative to revive and sustain the incentives for the states of the Western Balkans to continue their European integration journey and overcome an apparent impasse over accession prospects. The main argument of this Article is whether the EU accession process with regard to the Western Balkans can be reinforced in a manner of a merit-based process that offers a credible goal by granting access to the EU single market as an interim accession goal that inspires real change, while reducing the sense that further EU enlargement is risky endeavour. In order to provide a relevant conclusion, the Article reviews the economic effects of previous rounds of enlargements and the relevant instruments employed towards the Western Balkans, to examine the plausible limitations and prospects.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(2), 799-831 | Article | (Table of Contents) I. The complex institutional balance in the external relations of the European monetary policy: legal bases. - II. The external relations of the European Union in international economic and monetary relations. - III. The external relations of the eurozone: the ECB as a representative of the Union and of the eurozone. - III.1. Institutional "intricacies". - III.2. Practical arrangements. - IV. The external relations of the ECB under art. 6 of the ESCB Statute: transnational technical monetary relations? - V. Residual functions of national central banks: do they also pertain to external relations? - VI. Political and technical obstacles to a unified external representation, and the advantages of speaking with one voice. - VII. Concluding remarks: the ECB and other actors. | (Abstract) This Article will attempt to answer three main questions: i) whether the ECB is a qualified representative for the eurozone or the Union in international fora - and if so, ii) to what extent its role falls within art. 138 TFEU or rather art. 6 of the ESCB Statute - and iii) whether national central banks in the eurozone enjoy any residual competence in managing external activity falling within the area of monetary relations and specifically ESCB technical cooperation projects. To that end, it will be necessary to explore the current external projection of the Union and of the eurozone in the area of economic and monetary policies and their representation in the main fora in charge of global economic governance. Specific attention will be paid to the impact of the dichotomy Union-eurozone on the EMU external relations. In the concluding remarks, the advantage of a single eurozone external representation at all levels will be pointed out, after having explored the political and technical obstacles which explain the delay in the achievement of such an objective.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(2), 749-771 | Article | (Table of Contents) I. Clear occasions. - II. Confirmation and advancement of rule of law value-dogmatics. - II.1. Voluntariness of accession, pre-legal normativity of values. - II.2. Updating the dogmatic of self-assertion under the rule of law. - II.3. Conclusion: working with protection obligations while restraining from intervening in the constitutional conflict. - III. Reconceptualizing unrestricted primacy. - III.1. The traditional basis. - III.2. First addition: elements of international law to strengthen primacy? - III.3. Second addition: equality through primacy, subordination through self-obligation. - III.4. Conclusion: "normed" primacy as a result of selective listening. - IV. Conclusion: Union law's identity between dialogical crisis containment and constitutional monologue. | (Abstract) The Grand Chamber's judgment of 21 December 2021 on rule of law deficits in Romania underlines the vulnerability of the Union's legal order. The facts of the case vividly demonstrate once again that its weak spot is spread across the national judicial systems of the Member States. The European Court of Justice (ECJ) opposes the developments by further strengthening the values while underlining special obligations Romania entered into upon accession. Of central importance beyond that are the Court's first additions to the long standing reasoning on Union Law's unrestricted primacy. The argumentation resembles a closing figure which is supposed to resolve the irreconcilable claims of final authority in favour of Union law. The attempt turns out to be unconvincing because the constitutional foundations of the integration process and its plurality of actors are selectively ignored.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(2), 909-928 | Article | (Table of Contents) I. Introduction. - I.1. From initial rejection to acceptance of differentiated integration as an institutional feature of the EU migration policy. - I.2. The "migration crisis" and the "fractured values" of the EU migration policy: differentiated integration as an indicator or a catalyst? - II. Differentiation as a governance tool: the intergovernmental roots of the EU migration policy. - II.1. Defining EU migration policy. - II.2. The evolution of the EU migration policy: from a purely intergovernmental to a quasi-fully integrated policy. - II.3. The institutional challenges of differentiation for EU migration policy: defining the territorial scope of EU migration law. - III. Intersecting the migration' and rule of law "crises": Unveiling a deeper layer of differentiated integration? - III.1. From the institutional to the normative dimension of differentiation in the EU migration policy. - III.2. Worlds apart? The dis-connection between the rule of law and migration "crises" in the case law of the CJEU. - IV. Final remarks. | (Abstract) As with the whole Area of Freedom, Security and Justice (AFSJ), EU migration policy is one area of EU policy-making in which differentiated integration has found its clearest expression. Owing to its intergovernmental roots, differentiated governance has been considered the necessary compromise for a deeper integration in this policy field since the Amsterdam Treaty entered into force. The adoption of flexible mechanisms aimed to accommodate the political interests of some Member States. While many of the technical intricacies related to this special institutional set-up have now disappeared in the aftermath of Brexit, looking at the possible intersections between the recent migration and rule of law "crises" has brought to the fore a more serious form of disagreement between the Member States on the deeper values - or the possible absence thereof - with respect to EU migration policy. This has become especially clear in the way in which the Court of Justice of the EU (CJEU) seems to have adopted a disconnected approach in its case law relating, respectively, to the "rule of law crisis" and the "migration crisis" so far. This Article argues that beyond the fragmented scope of the EU migration policy caused by differentiation, lies a deeper "fracture" on the values that underpin it. In this sense, it invites for a more careful examination of what could become a widening gap by examining especially the relevant case law of the CJEU on asylum in the aftermath of the "migration crisis".

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(2), 773-797 | Article | (Table of Contents) I. The grey zone of art. 4(2) TEU. - II. Highlighting art. 4(2) TEU variability: the CJEU's case-law on the temporary relocation mechanism. - III. Exploring the concept of essential state functions. - III.1 Art. 4(2) TEU, national identities and essential state functions: two clauses, two separate concepts? - III.2. Essential state functions as a part of constitutional identity. - III.3. The CJEU's approach to essential state functions. - IV. Essential state functions: pushing the concept further - IV.1. Understanding national identity. - IV.2. Essential state functions: wider scope brings risks. - IV.3. Lessons learnt from Commission v Poland, Hungary and Czech Republic. - V. Conclusion. | (Abstract) Art. 4(2) TEU stipulating the EU's respect to Member States' national identities seems to be the topic of the day in EU law discussions. However, another part of the provision, obliging the EU to respect the Member States' essential state functions, has received less attention due to which it lacks clarity and is treated ambiguously. This Article attempts to address that gap. It suggests that while the essential state function clause is textually separate from the national identity clause, the aim and function of the clause, as well as the way in which some constitutional courts treat it, evidences that essential state functions are not strictly separated from national identity. Using the examples of the CJEU's judgment on the temporary relocation mechanism, the Article argues that some Member States' concerns vis-à-vis the EU could be based on either essential state functions or national identity. In such a situation, essential state functions might seem attractive because of their perceived more objective appearance than national identity. However, the given example also shows that even essential state functions could cover arguments problematic from the perspective of common EU values (art. 2 TEU).

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(2), 889-907 | Article | (Table of Contents) I. Introduction. - II. Banking Union: supervisory and resolution pillars' governance. - III. Single supervision and resolution: the integrative factor of joint teams. - IV. Banking Union "waiting room": from differentiation to integration. - V. Conclusion. | (Abstract) This Article examines differentiated governance across and within the existing pillars of the Banking Union (BU): the Single Supervisory Mechanism (SSM) and the Single Resolution Mechanism (SRM). Governance covers the decision-making rules, institutional apparatus, and processes - taking due account of the issues created by the incompleteness of the BU. In the daily supervisory and resolution actions, joint teams constitute a significant progress for cooperation, exchange of information and coordination of the work carried in the BU at an operational level, which plays an integrative factor in the systems' governance. Moreover, differentiated governance exists within the systems for banking supervision and bank resolution, but also in its immediate surroundings, that is the consideration for the "ins", "outs", and "opting-ins" Member States that are joining the BU through close cooperation.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(2), 867-887 | Article | (Table of Contents) I. Introduction. - II. The path of differentiation in the Maastricht Treaty. - III. The post-Maastricht path: the widening of differentiation. - III.1. Euro area types of governance. - III.2. Hybrid systems of governance that apply to the euro area and non-euro area Member States. - III.3. Intergovernmental treaties that apply to all EU Member States. - IV. The pandemic and the Recovery Plan (Next Generation EU). - V. Which differentiation in the EMU? Paths and Issues. - VI. Lessons to be learned from differentiation. - VII. Conclusions. | (Abstract) The Article argues that differentiated governance within the Economic and Monetary Union has been reduced in recent times, thanks to the adoption of positive intervention programmes such as the Next Generation EU and SURE which apply to all the MS. It also explains that differentiated governance is not the preferable solution because it emphasises the differences between MS, whereas they need to be put on an equal footing if we want to reform EMU and the EU. The Article looks at the three phases in which different types of governance were legally established as a reaction to the crises that occurred over time, highlighting the various legal solutions and the consequences for the institutional fragmentation among the MS. Furthermore, it illustrates the pros and cons of some institutional solutions bearing in mind both the need for a more efficient and reactive union in the face of difficulties and a clearer allocation of responsibilities while ensuring greater legitimacy. Alt-hough the assessment of the new policy instruments is positive in terms of reducing fragmentation among States, a reform to make EU governance more responsive and efficient and based on homogeneous constitutional principles is necessary.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(2), 949-968 | Article | (Table of Contents) I. Introduction. - II. Defining BURGs. - II.1. Institutionalized cooperation. - II.2. Currently active. - II.3. Only current EU member states. - II.4. Institutional separation from the EU. - II.5. Geographical proximity. - III. Comparing BURGs: Key variables. - III.1. Longevity, pre- or post-accession. - III.2. Institutional structure. - III.3. Policy scope. - III.4. Frequency of meetings. - IV. Explaining BURGs. - IV.1. Integration vanguard. - IV.2. Functional cooperation. - IV.3. Policy coordination. - IV.4. Resistance. - V. Conclusion: BURGs and differentiated integration. | (Abstract) Within the EU there are several regional forums in which member states cooperate with one another outside the EU institutional framework. The purpose of this Article is to define, identify, compare and explain these intra-EU bottom-up regional groups (BURGs). A BURG may be defined as a group of geographically proximate current EU member states engaging in a form of institutionalized and active cooperation that is institutionally separate from the EU. By this definition this Article identifies at least thirteen BURGs. Comparing the BURGs, this Article observes that they vary according to their longevity (including whether they were established pre- or post-accession), institutional complexity, policy scope, and frequency of meeting. Explaining BURGs, this Articles argues that they may serve one or more of four purposes - integration vanguard, functional cooperation, policy coordination, or resistance. These BURGs represent an unexplored form of differentiated governance within the EU. They do not conform to the classic definition of differentiated integration, which is measured according to whether member states opt-out of common EU policies. Rather, they are a bottom-up form of differentiation, that sits at an intermediate level between the member states and the EU.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(2), 969-980 | Article | (Table of Contents) I. Introduction - II. The persistence of serious crises - III. The feasibility of three suggested options for the future of Europe - IV. Some comments on the current political reality - V. My personal suggestions - VI. Conclusion. | (Abstract) The European Union has suffered for many years from long-standing crises (of competitiveness, the euro, and democracy) which have only been exacerbated by more recent crises (of foreign and security policy, migration, climate change, and the rule of law). When considering the EU's options for the future, it is difficult to see how it can maintain its unity. The essential problem is that the aims given to the EU by its Member States in the EU Treaties cannot be achieved with the means it was given, which are ill-adapted to its number of members. The problem can be dated back to the "original sin" of the Nice Treaty, in which the then-15 Member States, despite their legal commitment to do so, did not adequately reform the EU's governance to prepare for the accession of 10 new Member States in 2004. In particular, they did not reform the Council's decision-making procedures, which require common agreement or unanimity on all major decisions, effectively giving each Member State an individual veto. The author recommends amending the EU Treaties to vastly cut back the number of decisions and areas subject to common agreement or unanimity in favour of the introduction of a collective veto of three to five States representing 10 to 15 per cent of the EU population and different thresholds of qualified majority voting. While differentiation is not key to resolving the EU's core problems, different forms of differentiation should be introduced to permit flexibility within the EU's system of governance.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(2), 929-948 | Article | (Table of Contents) I. Introduction. - II. Differentiation: From pragmatic problem-solving to mode of governance. - II.1. Differentiated governance: The normalization of disintegration. - II.2. Getting to "a community of values and of laws". - III. The rule of law crisis: From dialogues to conditionality. - III.1 Muddling through political dialogue: From art. 7(1) TEU to annual reports. - III.2 From dialogues to budgetary conditionality: On veto threats and flexible legal frames. - IV. Differentiated governance and the sovereigntist challenge to the primacy of EU law. - V. Halting disintegration: The CJEU on the Union's legal foundations. - IV. Conclusion. | (Abstract) The EU's decade-long rule of law crisis has normalized into an everyday constitutional and political experience. The lens of differentiated governance calls for a close inquiry into the legal and political dynamics - processes, incentive structures and inter-institutional conflicts - that are consequential for the future of the Union as a "community of values and of laws". Tracing the debate on financial sanctions (budgetary conditionality) in the broader context of the rule of law crisis, this Article argues that the future of Europe hinges on attributing practical, political and legal significance to the found-ing values set forth in art. 2 TEU. Without respect for these founding values differentiated governance as a set of political or legal practices and as an academic-intellectual project has no purpose or endpoint.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(2), 857-866 | Article | (Table of Contents) I. Introduction. - II. Differentiated governance within the EU. - III. Brexit and differentiated governance outside the EU. - IV. Structure of this Special Section. | (Abstract) This Article introduces the Special Section on "Differentiated Governance in a Europe in Crisis", out-lining the focus of the Special Section and summarising the contents of its various contributions. The Article defines the notion of differentiated governance and highlights its manifestation both within and outside the EU, and underlines how recent crises affecting the EU have increased differentiated governance.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(2), 739-748 | European Forum Insight of 9 November 2022 | (Table of Contents) I. Introduction. - II. EMU and market discipline. - III. How the markets would behave. - IV. How the markets should behave. - V. Protect and Discipline. - VI. Conclusion. | (Abstract) In the asymmetric Economic and Monetary Union "market discipline" has played an important and controversial role to compensate for the weakness of the legal framework as regards fiscal affairs. Both as an empirical matter of market behaviour and as a matter of the "no bail-out" clauses of arts 123 and 125 TFEU being effectively undermined after the crisis, however, "market discipline" has never worked as advertised. Instead, the Court of Justice has offered a contrived "synthesised" ver-sion of the "logic of the market" as a marker of the legality of financial assistance by the European Stability Mechanism and of the European Central Bank bond purchasing programs. The recent Transmission Protection Instrument announced by the Bank should be seen, so it is argued here, as an attempt not just to facilitate the normalisation of monetary policy, but to bring the relationship between economic law and governance, on the one hand, and market discipline, on the other, back to normal.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(2), 651-670 | Article | (Table of Contents) I. Introduction. - II. Autocratic legalism: a threat to the ECJ's authority. - II.1. Autocratic counter-interpretations of Union law. - II.2. An autocratic contestation of the ECJ's authority. - III. A constitutional response to a crisis of values. - III.1. A dynamic response to the formalism of autocratic legal-ism. - III.2. A flexible response to a crisis of values. - IV. Alternative responses to autocratic legalism. - IV.1. Decentralised solutions to a crisis of values. - IV.2. Administrative reasoning as a response to autocratic legalism. - V. Conclusion. | (Abstract) In recent years, the Court of Justice has become one of the most pronounced voices of opposition to illiberal projects in Europe. Its tenacity, however, has turned the Court into the target of national lawmakers who seek to undermine the authority of the Court and Union law more generally. The present investigation suggests that these attacks share recurrent features and may be qualified as "autocratic legalism". It will be argued that, above all, attacks of this nature are aimed at calling into question the authority of the European Court of Justice among national audiences. For European judges, consequently, this raises the question how to appropriately respond to such efforts. Although there may be no ideal solution in this regard, the present investigation discerns three responses in the jurisprudence of the Court and assesses these approaches in the light of the strategic objectives pursued by autocratic legalists.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(2), 697-719 | Article | (Table of Contents) I. Introduction. - II. Protecting EU values through ESI funds: The new fundamental rights "enabling conditions". - III. Decentralising the "politics of values": The potential of the Justice, Rights and Values Fund. - IV. The Recovery and Resilience Facility: Shaping Europe's recovery in line with EU values. - V. Conclusions. | (Abstract) In recent years, the EU budget has emerged as an attractive instrument to foster compliance with the fundamental values enshrined in art. 2 TEU. Especially following the exceptional increase in EU expenditure, the power of the purse seems to provide indeed more persuasive arguments compared with the existing EU rule-of-law toolbox. While most of the attention has focused exclusively on the rule-of-law conditionality regime ultimately introduced with Regulation (EU, Euratom) 2020/2092, this Article argues that the EU budget offers further, and arguably more promising, avenues to protect, promote and enforce the EU common values through financial means. Most notably, this Article explores the potential and challenges of the EU budget as a values-oriented policy instrument focus-ing on three elements of the new budgetary framework: i) the set of fundamental rights "enabling conditions" attached to the European Structural and Investment Funds, among which stands out an horizontal enabling condition related to the EU Charter of Fundamental Rights; ii) the "Justice, Rights and Values Fund", with special attention to the reforms concerning the financing of civil society organisations; iii) the "Recovery and Resilience Facility", which provides valuable instruments to police compliance with rule of law and fundamental rights standards thanks to its connection with the European Semester and the European Pillar of Social Rights.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(2), 721-737 | Article | (Table of Contents) I. Introduction - II. The road to rule of law conditionality - III. How the rule of law conditionality regulation became an instrument of budget conditionality - III.1. The conditionality mechanism in Regulation 2020/2092 - III.2. Article 322(1) TFEU as the correct legal basis - III.3. Sufficiently direct link - III.4. Alleged infringement of art. 7 TEU, circumvention of art. 258 TFEU, and destabilising the institutional balance - IV. Other traces of rule of law conditionality - IV.1. References to Regulation 2020/2092 - IV.2. Applying rule of law conditionality under the Recovery and Resilience Facility - V. Conclusions. | (Abstract) During the last decade, a deterioration of the respect for the EU's common values occurred. On the EU level, various procedures and instruments have been created and applied to cope with the crisis. The latest instrument, Regulation 2020/2092, was designed to establish a rule of law conditionality mechanism but has turned out as a budget conditionality mechanism. This Article examines the evolution and nature of the conditionality mechanism in said Regulation and shows why rule of law conditionality can currently rather be located in the financial instruments breathing life into the EU Green Deal than in the so-called rule of law conditionality Regulation.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(2), 671-695 | Article | (Table of Contents) I. Situating the topic. - II. Dealing with rule transgressions. - II.1. Instrumentalist and normative approaches. - II.2. The potential of peer reviews. - III. What is wrong with the current approaches? - III.1. The Article 7 procedure and the rule of law framework. - III.2. The budget conditionality mechanism. - III.3. The Commission Rule of Law Report. - III.4. The Council's annual Rule of Law Dialogue. - IV. The EU Rule of Law Peer Review. - IV.1. History of the initiative. - IV.2. Which institutional design for the initiative? - IV.3. Can the EU peer review address the problems of the approaches? - V. Ways ahead? | (Abstract) The possible remedies that the EU can use against backsliding on the rule of law are limited: While art. 7 TEU has been widely conceived as ineffective, the recently introduced budget conditionality may become bogged down in court cases. Softer instruments like the Commission Rule of Law Report provide observations on rule of law developments, but are in themselves unable to address transgressions. Against this background, the Council has recently introduced a peer review mechanism that may exert peer and public pressure on transgressors. However, the agreed procedures show important deficits such as lacking transparency to the outside world, limited time devoted to the re-view, and the absence of clear country-specific recommendations that could become the focus of peer and public pressure. The new procedure thus needs reform to achieve results. A comparison with peer reviews among states in other international organizations show the potential that peer reviewing holds.

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

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(2), 627-639 | European Forum Insight of 17 October 2022 | (Table of Contents) I. Introduction. - II. Background. - II.1. The European Commission Decision. - II.2. The 2014 General Court judgment in Intel. - II.3. The Intel judgment of the Court of Justice. - III. The 2022 General Court decision in Intel. - IV. Critical analysis and further discussion. - V. Conclusion. | (Abstract) The latest judgment of the General Court in the Intel case annulled the EU Commission's decision from 2009 imposing a €1.06 billion fine on Intel for abusing its dominant position by offering fidelity rebate schemes (case T‑286/09 Intel v Commission ECLI:EU:T:2022:19). The judgment reaffirms the application of an "effects-based" approach which requires careful economic analysis in order to establish the abusive nature of fidelity rebates. The judgment demonstrates that the presumption that fidelity rebates are restrictions of competition by object can be rebutted by the dominant company. It also clarifies that the as efficient competitor (AEC) test is not an indispensable part of the assessment in examining the foreclosure capability of all rebate systems but can be a relevant factor where the Commission has carried it out as part of its assessment of the anticompetitive effects of the rebate schemes. This Insight seeks to examine how this clarification can be translated into concrete lessons not only for future cases but also for other cases dealing with similar issues (i.e. the Qualcomm and Google Shopping cases) and, in particular, the significance of the AEC test as a specific tool to evaluate the anticompetitive effects of fidelity rebates. The Insight concludes that the recent judgment leaves more questions than answers regarding the application of the AEC test, and that it can be seen as signalling the demise of the application of this test for future cases.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(2), 615-626 | European Forum Insight of 3 October 2022 | (Table of Contents) I. Introduction. - II. The hotspot approach: from emergency measure to standard migration management. - III. The New Pact on Migration and Asylum: the institutionalisation of the hotspot approach. - IV. The Belarus migration crisis: instrumentalising the instrumentalisation narrative. - IV.1. Instrumentalisation of migrants. - IV.2. Instrumentalisation of migration crises. - IV.3. Instrumentalisation of derogatory regimes. - V. Conclusion. | (Abstract) The global reform of the EU migration policy envisaged in the New Pact on Migration and Asylum is stalling. The increased number of arrivals from Belarus gave the European Commission the opportunity to change its approach in attempting to reform the European migration management. The Belarus crisis, influenced by the active involvement of the Belarus regime in facilitating third country nationals' passage towards the EU external border, has been labelled an "instrumentalisation situation" posing a threat to the security of the Union. This Insight claims that the Commission is exploit-ing the instrumentalisation narrative to push forward its agenda on migration policy, normalising the use of detention and border procedures as standard migration management tools. Such policy objectives, already introduced in 2015 with the hotspot approach, already play a key role in the overall structure of the New Pact on Migration and Asylum. The Insight argues that the Commission's fight against the instrumentalisation of migrants is in itself an instrumentalisation exercise: migrants are instrumentalised to strengthen the securitarian approach to migration; migration crises are instrumentalised to push forward sectorial elements of the New Pact; EU law is instrumentalised to intro-duce derogatory regimes as permanent components of the EU migration policy.

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(2), 1087-1097 | European Forum Insight of 20 September 2020 | (Table of Contents) I. Introduction. - I.1. AI and the need for a system of governance. - I.2. Introduction to AI and the risks it poses to fundamental rights. - II. An assessment of the Commission's concerns surrounding the EU's primary legal framework's suitability to address the risks posed by AI to fundamental rights. - III. An analysis of how well the GDPR addresses the challenges posed by AI to the fundamental rights of privacy, personal data protection, and non-discrimination. - IV. Conclusion. | (Abstract) In early 2020, the European Commission published a White Paper on artificial intelligence (AI) regulation, in which it highlighted the need to review the EU's legislative framework with a view to making it fit for the cur-rent technological developments. The aim of this Insight is to carry out such review from the perspective of fundamental rights. The Insight briefly assesses the Commission's concerns surrounding the suitability of the Union's primary legal framework to address the risks posed by AI. More specifically, the analysis is focused on the question concerning how well the GDPR addresses the challenges posed by AI to the fundamental rights of privacy, personal data protection, and non-discrimination - which are the three main intersections between AI and fundamental rights. The perspective adopted in the present study is particularly relevant because the need to regulate AI through the lens of fundamental rights law is still largely underdeveloped. Fundamental rights concerns are mainly triggered when the development and use of AI concern the processing of personal data and thus fall within the scope of application of the GDPR. In this Insight, it is argued that the GDPR is well equipped to disruptively challenge actual or potential undesirable uses and applications of AI but some deficiencies are also clearly visible. In particular, in relation to the concept of specific consent, the scope of the data subject's right to information, and on how best to conduct data protection impact assessments when it comes to guaranteeing a trustworthy fundamental rights compliance of the technology.

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(1), 287-297 | Insight | (Table of Contents) I. Introduction. - II. The weakness of the concept of European (Union) sovereignty. - III. The strengths of the language of "European sovereignty". - IV. Conclusion. | (Abstract) This Insight argues that the rise and spread of the notions of "European sovereignty" and "European Union sovereignty" must be taken seriously. Since 2017, they have become central categories in the main political discourses on the EU. The paper first addresses the question whether European (or EU) sovereignty is an adequate concept to give account of the nature, or the future, of European integration. It answers negatively. Then the Insight describes the claim for "European sovereignty" as a discursive form. As such, it performs different functions that must be analysed: the notion of European sovereignty permits to mobilise the EU actors who aim to 'rebuild' Europe and it serves to accommodate conflicting visions of what the EU is and should be. To focus on language permits to understand why "European sovereignty" gains momentum in the discourses and the literature on EU integration.

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

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(1), 283-286 | Dialogue | (Abstract) This note is a brief response to Professor Azoulai's reaction (On Dubious Parallels: The Transnational Europeans and the Jews. A Note on Gareth Davies' Article, in European Papers, Vol. 5, 2020, No 1, forthcoming, www.europeanpapers.eu) to my Article, How Citizenship Divides (How Citizenship Divides: The New Legal Class of Transnational Europeans, in European Papers, Vol. 4, 2019, No 3, www.europeanpapers.eu, p. 675 et seq.). He takes exception to my suggestion that Jews in early 20th century Europe, like mobile Union Citizens, were in a sense outsiders within the states that were their homes, and as members of a pan-European persecuted minority, also in a sense transnational. He seems to think that to suggest a minority may have a different sense of place and belonging in their state is to insult them. I think that to deny it is to deny them a voice and identity, as well as to reinforce the nationalist idea that the only good citizen is an uncomplicated one.

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(1), 279-282 | Dialogue | (Abstract) In a recent Article published in this Journal, Gareth Davies draws a parallel between European citizens as fashioned by EU law and pre-war Europe's Jews (G. Davies, How Citizenship Divides: The New Legal Class of Transnational Europeans, in European Papers, Vol. 4, 2019, No 3, www.europeanpapers.eu, p. 675 et seq.). This parallel raises two serious issues. One is the complete lack of contextualisation of such a dubious comparison. The other is the lack of careful methodological engagement with the ways in which EU law operates in actual practice. This note cautions against the use of such parallels and calls for the development of renewed categories to analyse and critically assess the European Union and its law.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(2), 601-613 | European Forum Insight of 24 September 2022 | (Table of Contents) I. The digital finance package of the European Commission. - II. The Regulation on DLT Market infrastructures: a rule-based pilot regime. - II.1. Types of DLT market infrastructures. - II.2. Financial instruments admitted under the pilot. - II.3. Amendments to the EU legal framework on financial services. - III. Obligations for DLT market infrastructures. - III.1. Obligations for DLT multilateral trading facilities. - III.2. Obligations for DLT SSs. - III.3. Obligations for DLT TSSs. - III.4. Horizontal additional requirements for DLT market infrastructures. - IV. The role of ESMA and national competent authorities. - V. Conclusions. | (Abstract) The decentralized issuance of financial instruments is presently problematic under EU law. This situation will change with the entry into force of the Regulation on a pilot regime for market infrastructures based on distributed ledger technology. The Regulation provides for a regulatory sandbox - the pilot regime - that market operators can use to test distributed ledger technologies in the financial market industry in a way compatible with EU law. While this will improve legal certainty and increase protection for consumers, it will also introduce a completely new paradigm in financial market legislation: the decentralization of financial instruments. Moreover, the Regulation imposes considerable obligations on market operators, while also granting to the European Securities and Markets Authority and national competent authorities a relevant but difficult role in overseeing and monitoring the pilot regime's development. This Insight aims to provide an overview of the novel features introduced by the Regulation and reflect on whether the legislation will favour or frustrate innovation at EU level.

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