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

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(1), 439-464 | Article | (Table of Contents) I. Introduction. - II. The "principles" common to admission to and withdrawal from the European Union. - II.1. The principle of democracy. - II.2. The respect for the acquis communautaire. - II.3. The principle of good neighbourliness. - III. The emergence of integovernmentalism in the admission and withdrawal procedures. - III.1. The interplay between law and practice. - III.2. The role of the EU political institutions. - III.3. The application of conditionality. - IV. Making intergovernmentalism prevail over supranationalism. | (Abstract) This Article assesses the practice of withdrawal in the light of the practice of admission and high-lights the numerous commonalities between the two practices. The analysis shows that most of the principles underlying the accession conditions underpin the exit from the EU, contributing to the enhancement of the values on which the EU legal system is rooted. Moreover, the techniques Member States make recourse to during the admission procedure, to strengthen their control over membership, were also used in Brexit, fostering intergovernmentalism in the process of European integration.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(1), 481-506 | Article | (Table of Contents) I. Introduction. - II. The case of the ESM: why the Eurozone's governance does not question the unity of the EU institutional framework. - II.1. The establishment of the ESM. - II.2. The institutional functioning of the ESM. - III. The impact of tasks entrusted to the EU institutions under the ESM on the institutional equilibrium within the EU legal order. - III.1. How are new tasks entrusted to the EU institutions? - III.2. What impact do these new tasks produce on the institutional equilibrium within the EU? - IV. The post-Covid institutional set-up: back to a "community" mode of governance? - V. Conclusion. | (Abstract) In the aftermath of the global financial crisis, the EU and its Member States had to face very pragmatic issues: how to avoid the economic collapse of Greece, Portugal and Ireland? Decisions had to be taken quickly in any institutional or legal forum that was immediately available. For this specific reason, legal solutions entailing the conclusion of international agreements by some of the EU Member States outside the EU legal framework were taken as a new normal. Due to a close legal relationship between these new international treaties and the EU legal order, a decision was also taken to "borrow" already existing EU institutions and entrust them with new tasks. In this Article, we question the role of EU institutions outside the EU legal framework. We first address the evolution of the EU institutional framework in the context of the euro crisis in relation to art. 13 TEU and recital 7 of the TEU preamble and the requirement of "unity of the institutional framework". Section II shows that "borrowing" the EU institutions outside the EU legal framework does not seem to alter the nature of the single EU institutional setting. Section III questions whether the tasks entrusted to the EU institutions outside the EU legal framework do not undermine the existing institutional equilibrium within the EU legal order. Section IV addresses the EU response to the Covid-19 pandemic from an institutional perspective as raising similar concerns within the EU legal order. The last section concludes.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(1), 413-438 | Article | (Table of Contents) I. Introduction. - II. Cybersecurity as internal market resilience. - III. Cybersecurity as an issue of internal security under the AFSJ. - IV. Mainstreaming cybersecurity into CFSP. - IV.1. The emergence of cyber cooperation under PESCO. - IV.2. Cyber Diplomacy Toolbox: between sanctions and a lawful response to cyber-attacks. - V. The externalisation of the EU's cybersecurity and its limitations under the CFSP. - V.1.The attribution of responsibility for cyber-attacks. - V.2. Evidence collection as a limitation for the EU Cyber Diplomacy Toolbox. - VI. Concluding remarks. | (Abstract) It is often claimed that there is a blurring line between external and internal security in the EU with both being increasingly intertwined. Apart from providing the state of affairs in EU cybersecurity law and policy, the argument of this contribution is that these internal-external links are also visible in a growing tendency towards the externalisation of the EU's cybersecurity policy. Typical interior policy fields in that area that were tackled through the internal market and the Area of Freedom Security and Justice (AFSJ) legal bases, are now penetrating the field of action of the Common Foreign and Security Policy (CFSP). This tendency towards a growing externalisation of the EU cybersecurity will be demonstrated by analysing the emblematic EU's Cyber Diplomacy Toolbox and its deterrence instrument: restrictive measures in response to cyber-attacks. Our analysis pinpoints a number of limitations for the EU's common action under the CFSP, including problems of attribution and evidence collection. Our Article questions whether the CFSP is fit for the digital age and what repercussions cyber threats may have for the future of the EU CFSP and its Cyber Diplomacy Toolbox.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(1), 399-408 | European Forum Insight of 20 July 2022 | (Table of Contents) I. Introduction. - II. Facts and background of the case. - II.1. The JY case: acquisition of nationality and EU citizenship. - II.2. The background of the case: the relationship between EU citizenship and nationality of a Member State. - III. Analysis. - III.1. The scope of EU law. - III.2. The proportionality test. - III.3. Reflecting further: the condition of British nationals after Brexit. - IV. Conclusion. | (Abstract) In case C-118/20 JY v Wiener Landesregierung ECLI:EU:C:2022:34, the Grand Chamber of the Court of Justice addressed another preliminary question regarding the relationship between nationality and EU citizenship. The case builds on the two previous cases Rottmann and Tjebbes. This time, the Court was confronted with the decision to revoke an assurance of naturalisation to a citizen who had already lost the nationality of another Member State. The Grand Chamber ruled that the situation at stake falls within the scope of EU law and offered a demonstration of the proportionality assessment that national authorities must undertake in such cases. In this Insight, I argue that this case constitutes another step in the case law progressively built up by the Court on EU citizenship. I also address the question whether this case may be relevant in the context of Brexit, given that British nationals have permanently lost the rights attached to EU citizenship as a consequence of the UK's withdrawal from the Union.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(1), 361-378 | European Forum Insight of 1 July 2022 | (Table of Contents) I. Introduction. - II. Conceptual framework. - II.1. "Narratives". - II.2. Fundamental rights: the starting point and ultimate goal. - III. The case of the German Constitutional Court. - III.1. A case overview. - III.2. The narrative characteristics of the decision. - III.3. Interpretation: a narrative illustration of the climate crisis? - IV. Addressing emotions at the expense of "objectivity"? - V. Conclusion. | (Abstract) The reaction to the climate crisis is dominated by recurring political failure and a reluctance to engage in ambitious climate action individually and publicly. Against this setting the judiciary has been called into action to address the climate crisis, adapting general principles, including fundamental rights, to the phenomenon of global warming. Persuasive arguments are needed to compel individuals and policymakers to act in a foresightful manner that can combat global warming. Judicial decisions can transmit such arguments within society departing from the individual case. A narrative analysis can reveal the persuasiveness of judicial reasoning ad enable the re-imagining and stretching of existing law for the purpose of climate action. This Insight encourages Courts to engage in the role of a narrator. An analysis of the decision of the German Constitutional Court through the "interpretative lens" of narratives exposes how such an interdisciplinary perspective can enable the identification of the broader conviction communicated by the Court. Narratives showcase the interdependent relation-ship between judicial reasoning and societal debate by operating on an emotional level. The decision of the German Constitutional Court relating to the compatibility of the German Climate Act with fundamental rights illustrates how judges can become narrators of climate change and how this new perspective may benefit the understanding of the role of the judiciary in addressing the climate crisis.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(1), 379-383 | European Forum Highlight of 8 July 2022 | (Abstract) This Highlight provides an assessment of the legality of the decision taken by the EU to supply weapons to Ukraine in the aftermath of the Russian invasion. It does so by analysing Decision 2022/338 as well as the decision on the European Peace Facility (EPF), on which the former is based, against the background of the scope of the CFSP competence and the case-law of the Court of Justice where the limits of such competence have been examined.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(2), 533-543 | European Forum Insight of 28 July 2022 | (Table of Contents) I. Preliminary remarks. - II. The facts in Commission v European Food. - III. Damage compensation as State aid: generalities. - IV. The relevant date for the application of State aid rules. - V. The measure constituting State aid - next episode of the saga. | (Abstract) In case C-638/19 P Commission v European Food ECLI:EU:C:2022:50, the Grand Chamber of the Court of Justice of the European Union held that the Commission was competent to assess the compatibility of State aid granted as a consequence of an arbitral award issued against Romania by a tribunal established under a bilateral investment treaty, even though the facts occurred and the proceedings were initiated before the accession of that State to the EU. In so doing, the CJEU focused on the date of the granting of the aid according to principles arising from art. 107(1) TFEU, finding that only at the end of the arbitral proceedings could the right to receive damage compensation be considered as acquired by the beneficiaries. The judgment, which is not completely convincing in the methodology employed or in its conclusions, may have significant implications for the notion of State aid, insofar as it includes measures enshrined in arbitral or judicial decisions, and on the problematic interaction between EU State aid rules and investment arbitration.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(2), 545-560 | European Forum Insight of 28 July 2022 | (Table of Contents) I. Premessa. - II. La possibilità di deroga all'applicazione della direttiva 2008/115/CE nel nuovo Patto su migrazione e asilo. - III. La possibilità di deroga all'applicazione della direttiva 2008/115/CE nelle proposte di risposta alla strumentalizzazione dei migranti. - IV. La possibilità di deroga alla direttiva 2008/115/CE a fronte della modifica del regolamento sul meccanismo di valutazione e monitoraggio di Schengen (SEMM). - V. Considerazioni critiche e conclusioni. | (Abstract) Art. 2(2)(a) of the Directive 2008/115/EC (Return Directive) provides the conditions whereby the Member States can derogate from some provisions of the directive itself. An amendment to remove this clause is under discussion before the European Parliament, as part of the negotiations on the directive's recast. Derogations from the scope of the directive challenge the monitoring of compli-ance with human rights obligations and the Charter of Fundamental Rights of the European Union. Meanwhile, the proposal on the reform of the Schengen Evaluation and Monitoring Mechanism (SEMM) aims for an effective monitoring of the respect of rights at external borders. This implies greater attention to the correct implementation of the Return Directive. However, in the new Pact for migration and asylum, the derogation clause is applicable to both the proposal for a Regulation on screening at external borders and the proposal for a common procedure for international protection. Derogations from the Return Directive are also contained in the proposals aimed at addressing situations of instrumentalisation of migration and asylum. The analysis of these provisions gives a picture of an incoherent normative system, whose antinomies may foster or further complicate the already troubled advancement of negotiations on the Return Directive and on the Pact.

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

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(2), 527-532 | European Forum Highlight of 27 July 2022 | (Abstract) The Highlight discusses the EU policy on soil protection and preservation. It is argued that the EU has thus far failed to establish a comprehensive and effective legal framework on this issue. Rather, the EU acquis is extremely fragmented, with soils being addressed as ancillary elements to other environmental priorities. The Highlight points out that the current state of affairs is largely due to the Council's inability to conduct successful negotiations on the Commission's 2006 proposal for a Soil Framework Directive. This legislative initiative was abandoned in 2014 following claims of its violation of the subsidiarity principle. However, in the framework of its new Soil Strategy for 2030, the Commission has included an upcoming proposal for a comprehensive Soil Health Directive. The Highlight argues that, while the Commission is taking seriously the pre-proposal impact assessment, subsidiarity check and consultations, the current state of the environment requires the governments sitting in the Council to leave aside their formalistic criticisms and to adopt a proactive approach to the negotiations, with a view to bridging the existing gap in EU environmental law.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(2), 573-582 | European Forum Insight of 31 July 2022 | (Table of Contents) I. Introduction. - II. Cross-border police cooperation to counter 'secondary movements'. - III. The 'endtimes' of procedural safeguards. - IV. Conclusion. | (Abstract) A series of challenges and crises have highlighted the deficits of the 'Schengen Αrea' both regarding its external and internal borders. This resulted in the undermining of trust between the Member States which is essential to sustain an area free from internal borders. Thus, the EU Commission presented in December 2021 new rules to strengthen the Schengen System. This Insight aims to analyse the promotion of 'alternative' measures to internal border controls as an attempt to curb secondary movements of third-country nationals without resorting to border controls, such as through in-creased joint police patrols. Special attention will be given to the introduction of a new 'alternative' measure envisaged in art. 23a of the proposal to amend the Schengen Borders Code that provides for a distinct transfer procedure for those apprehended at the internal borders in the context of cross-border police cooperation and who do not have a right to enter or stay. It is highly questionable though how this procedure will be implemented to be in line with the fundamental rights and the procedural safeguards envisaged in the asylum acquis, the EU Charter of Fundamental Rights, and the European Convention on Human Rights.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(2), 561-572 | European Forum Insight of 30 July 2022 | (Table of Contents) I. Introduzione. - II. Le misure restrittive contro l'Iran riattivate nel 2018 dagli Stati Uniti. - III. La risposta europea: l'aggiornamento del regolamento 2271/96. - IV. Il caso Bank Melli Iran. - V. La sentenza della Corte. - VI. Rilievi conclusivi. | (Abstract) On 21 December 2021, the Court of Justice decided the case Bank Melli Iran v Telekom Deutschland GmbH (case C-124/20, ECLI:EU:C:2021:1035), relating to the interpretation of Regulation 2271/96 protecting against the effects of extraterritorial application of legislation adopted by a third country, better known as the "blocking regulation". According to this Regulation, EU operators are inter alia bound to disregard the extraterritorial effects of US restrictive measures against Iran, and thus continue contractual relationship with Iranian counter-parts, irrespective of the risk of undergoing se-vere economic consequences under US law. In this context, the Court is required inter alia to strike a fair balance between the freedom to conduct business, including freedom of (and from) contract, as protected under art. 16 of the Charter of fundamental rights of the EU and the effectiveness of the blocking Regulation. A fundamental role, in this respect, rests on the judges of the Member States. As the Insight highlights, the case illustrates some of the main flaws in the application of the Regulation. More generally, it is pointed out that the protection afforded by the Regulation seems implemented mainly through "punitive" tools (such as direct effect and national sanctions) vis-à-vis the beneficiaries of the protection, i.e. EU operators. Also for this reason, the revision process of the blocking Regulation currently pending at EU level should be welcome, with a view to provide the EU legal system with more effective instruments to protect EU industry and citizens from the increasing pressure deriving from coercive practices and policies implemented by third countries.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(1), 385-398 | European Forum Insight of 18 July 2022 | (Table of Contents) I. Introduzione. - II. Il sistema delle risorse proprie. - III. Le nuove risorse proprie dell'Unione europea: fra Green Deal e Next Generation EU. - IV. Il finanziamento del Green Deal europeo: profili critici. - V. Conclusioni. | (Abstract) Over the past few years, the EU action has been increasingly focused on addressing environmental protection issues and implementing policies to fight against climate change. The ambitious environmental policy of the EU, the Green Deal being part of it, stressed the issues concerning its financing. Against this backdrop, the aim of this Insight is to analyse the own resources system, focusing on the opportunity and the possibility from the legal standpoint of creating an actual fiscal capacity of the European Union which would allow a better pursuit of its environmental objectives. The analysis highlights the most relevant procedural flaws that characterise the functioning of the EU budget. It also considers the impact that Next Generation EU had on it, taking into account its crucial role in providing legal backing to the political commitments of the Green Deal. Moreover, particular attention is devoted to the new mechanisms that will be introduced to support the European Green Deal, such as the Carbon Border Adjustment Mechanism (CBAM) and the new own resource based on revenues from the EU Emissions Trading System (ETS).

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(1), 333-343 | European Forum Insight of 22 June 2022 | (Table of Contents) I. Introduction. - II. The scope of art. 218 TFEU. - III. The internal procedure for the conclusion of international agreements by the CJEU. - IV. The different role of the institutions involved. - V. The peculiarity of some Hague Conventions on private international law. - VI. Council's internal voting rules. - VII. Conclusions. | (Abstract) Setting the general procedure to be followed for the conclusion of international agreements, art. 218 TFEU allocates the powers of the different institutions involved and - compared to the pre-Lisbon legal framework - strengthens the role of the European Parliament. It is therefore with respect to this provision that the status and prerogatives of the EU vis-à-vis third States must be analysed, as it frames the lifecycle of the international agreements and the rules the EU institutions are bound to follow in this regard. However, while its pattern seems suitable whenever the EU must conclude an international agreement which entails a positive expression of position, doubts arise as regards those conventions which foresee an accession, based on a non-objection mechanism. This Insight explores, in the light of the duty to practice mutual sincere cooperation stemming from art. 13 TEU, some practical disadvantages of its application and the controversial issue of the Council's internal voting rules.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(1), 327-332 | European Forum Insight of 18 June 2022 | (Table of Contents) I. Introduction. - II. Procedural history of Ernests Bernis (Appeal) and related judicial proceedings. - III. Main findings of the Court in case Ernests Bernis (Appeal). - IV. Conclusions. | (Abstract) With the judgment of 24 February 2022 in case C-364/20 P Bernis and Others v SRB ECLI:EU:C:2022:115, the European Court of Justice has dismissed the appeal lodged by Ernests Bernis, Oļegs Fiļs, OF Holding SIA and Cassandra Holding Company SIA (shareholders of ABLV Bank) against the order of the General Court rendered on 14 May 2020 in case T-282/18 Bernis and Others v SRB ECLI:EU:T:2020:209, concerning the decisions not to take resolution action with respect to ABLV Bank. With this judgment, the ECJ has closed the judicial proceedings at stake and has ruled for the first time on the locus standi of the shareholders of a credit institution to challenge the decision not to take resolution action with respect to the same entity.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(1), 305-326 | European Forum Insight of 11 June 2022 | (Table of Contents) I. Introduction. - II. The judgment of the Court of Justice. - II.1. Factual and legal background. - II.2. Duty to ensure the full effect of directives, but no horizontal direct effect. - II.3. State liability as a remedy for harmed individuals. - II.4. Purely internal situations and the scope of art. 49 TFEU. - III. The legal effects of directives: normative impact and (in)direct effects. - III.1. The prohibition of horizontal direct effect and the "normative impact" of invoking a directive. - III.2. The central role of the doctrine of consistent interpretation. - III.3. Horizontal effects of directives and the Charter of Fundamental Rights. - III.4. Is state liability enough? - IV. The road not taken: the opinion of AG Szpunar. - IV.1. Horizontal direct effect of the Services Directive and art. 49 TFEU in purely internal situations. - IV.2. Horizontal direct effect of the freedom of contract within the scope of the Services Directive. - V. Conclusion. | (Abstract) In Thelen Technopark (ECLI:EU:C:2022:33), the Court of Justice held that art. 15 of the Services Directive cannot be invoked against a conflicting national law in a horizontal dispute, even though the Court had already definitively established the incompatibility of this national law with the Services Directive in an earlier judgment. In view of the purely internal nature of the dispute - making art. 49 TFEU itself inapplicable - the individual harmed by the violation of the Services Directive could only recover his losses through a separate action for damages against the Member State. This Insight analyses Thelen Technopark in light of the logic and extent of the prohibition of horizontal direct effect of directives, the central role and limits of the doctrine of consistent interpretation, and the direct effect of the Charter of Fundamental Rights. It argues that the Court rightly did not extend the Man-gold case law on directives giving concrete expression to a general principle or fundamental right to directives giving concrete expression to a fundamental freedom. This Insight also elaborates on the two proposals of AG Szpunar to allow for horizontal direct effect of the Services Directive either as a specification of art. 49 TFEU, or as a legislative harmonisation of the proportionality of an interference with art. 16 of the EU Charter of Fundamental Rights (CFR). While thought-provoking and worthy of critical analysis, the Court in my view rightly did not follow AG Szpunar's opinion, which likely would have resulted in a doctrinal minefield.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(1), 287-304 | European Forum Insight of 6 June 2022 | (Table of Contents) I. Introduzione. - II. La Lituania di fronte alla pressione migratoria proveniente dalla Bielorussia. - II.1. Il trattenimento dei richiedenti asilo durante la procedura in frontiera e la finzione di non ingresso. - II.2. Limitazioni al diritto di accesso alla procedura di riconoscimento della protezione internazionale. - II.3. Il mancato accesso ad una tutela effettiva. - III. La risposta dell'Unione europea alla strumentalizzazione delle persone migranti da parte della Bielorussia. - IV. La proposta di decisione ex art. 78(3) TFUE a confronto con la normativa nazionale lituana. - V. Il supporto operativo da parte dell'UE: l'intervento di EASO in Lituania e relative criticità. - VI. Riflessioni conclusive. | (Abstract) This Insight aims to illustrate common elements between the Lithuanian and European Union reaction following the "instrumentalisation of migrants" by Belarus. The most critical aspects with re-spect to national reforms and the Proposal presented by the Commission in December 2021 - ex art. 78(3) TFEU - shed light on specific issues that the EUAA presence in Lithuania raises - namely, the risk of fundamental rights' violations and its accountability.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(1), 345-360 | European Forum Insight of 29 June 2022 | (Table of Contents) I. The case forming the subject of the CJEU's judgment in Gtflix TV v DR. - II. The evolution of the CJEU's case-law concerning jurisdiction in respect of online defamation. - III. The adaptation by the Court of the solutions set out in its previous case-law to the questions referred to it in Gtflix TV. - IV. The strenuous and rather unpersuasive defence of the mosaic approach by the Court in Gtflix TV: critical remarks. - V. The isolated nature of the mosaic solution in the international arena: The alternative model advocated by the institute of international law, based on a holistic approach. | (Abstract) The author comments on a recent judgment by the Court of Justice of the European Union in Gtflix TV v DR (C-251/20 ECLI:EU:C:2021:1036), concerning jurisdiction on an action by a legal person seeking at the same time rectification and removal of disparaging statements published by a competitor on the Internet, and compensation for damages resulting therefrom. The Court followed the line set in its previous judgments concerning the interpretation of art. 7.2 of Regulation (EU) 1215/2012 (Brussels I-bis Regulation) in relation to cases of online defamation. Accordingly, whereas claims for rectification and removal may be brought only before either the courts of the Member State where the publisher is established or of the Member State where the centre of interests of the person concerned is located, actions for compensation may still be brought also before other Member States' courts, based on the pure accessibility of such information, with effect limited to damage suffered within the jurisdiction of the court seized. The author discusses the appropriateness of maintaining the said solution, known as the "Mosaic approach", originally conceived by the Court in respect of defamation by means of printed publications, considering the limited relevance of the criterion based on pure accessibility as concerns online materials and the undue incentive it offers to manoeuvres of forum shopping and law shopping.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(1), 275-286 | European Forum Insight of 2 June 2022 | (Table of Contents) I. Introduction. - II. Escalation in the rule of law crisis: Dissonance in the European Union's perception of the rule of law. - III. The European Union solution to the illiberal crisis: Untangling or entangling rule of law? - IV. The decision of the European Court of Justice and the new rule of law perspective conditioned upon a sound financial management. - V. Conclusion. | (Abstract) The recent rule of law crisis is partly due to the inertia of the European institutions regarding the implementation of the mechanism within art. 7 TEU. This is despite the variety of actions that could be taken by the EU regarding maintaining high levels of respect for the rule of law within the EU. Hence it seems that the rule of law crisis has come to stay. The escalation in the rule of law crisis creates a dissonance regarding the way the European Union perceives the rule of law, and points to the ambiguity in terms of content and legal nature. This dissonance adds to the existing tension between the claims of an illiberal constitutional identity and the violation of the rule of law. Illiberalism refers to representative democracies which do not necessarily guarantee fundamental rights and/or the rule of law. The law crisis reached its peak when the introduction of the rule of law Conditionality Regulation was believed to be the solution. The rule of law Conditionality Regulation was subject to an action for annulment introduced by Hungary and Poland and was dismissed by the ECJ in its long-awaited rulings after the case C-156/21 ECLI:EU:C:2022:97 and case C-157/21 ECLI:EU:C:2022:98. Even if the ECJ made it clear that the Regulation is not a substitute nor a reinstatement of the art. 7 TEU procedure, we can only wait to see how the Regulation will be applied. The rule of law violations was linked directly to the allocation of EU budget, and this raises questions about the challenges at stake.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(1), 69-78 | European Forum Insight of 6 May 2022 | (Table of Contents) I. Considerazioni introduttive sul commercio parallelo di farmaci nell'Unione europea. - II. La sentenza Delfarma del 25 novembre 2021: una decisione in linea di continuità con la precedente giurisprudenza della Corte di giustizia. - III. Il commercio parallelo di farmaci nella prospettiva delle iniziative legislative, in particolare della nuova Strategia farmaceutica per l'Europa. | (Abstract) Parallel trade of pharmaceuticals is one of the most contended issues emerging from this industrial sector, which requires to strike a sensitive balance between the fundamental tenets of the internal market (particularly the free movement of goods), the Member States' competence in regulating the prices of medicines and the conflicting interests of manufacturers and patients. Against this background, this Insight addresses the decision rendered on 25 November 2021 by the Court of Justice in Case C-488/20 Delfarma ECLI:EU:C:2021:956 and further elaborates some prospective considerations on parallel trade in the light of the problem of medicines shortages in the European Union, considering the recent initiatives falling under the new Pharmaceutical Strategy for Europe.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(1), 79-85 | European Forum Insight of 11 May 2022 | (Table of Contents) I. The background. - II. The precedents. - III. Reverse conditionalities. - IV. Ceuta: beyond blackmail. - V. A community of interests. - VI. Conclusion. | (Abstract) To properly understand the various factors that have been conducive to diplomatic tensions be-tween Spain and Morocco, following the mass arrival of migrants crossing the border of the Ceuta enclave in May 2021, we need to move the debate beyond the recurrent reference to "blackmail". The instrumentalization of migration for political and diplomatic purposes is not uncommon in the his-tory of international relations. Nor is it new in the governance of migration. This Insight argues that the May 2021 events are symptomatic of a now consolidated community of interests between Mo-rocco, on the one hand, and the EU and its Member States, on the other, that has gradually affected their relations, across various issue-areas, for better and for worse.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(1), 215-237 | Article | (Table of Contents) I. Introduction. - II. Shedding the light on the hotspots approach: legal framework and actors. - II.1. Legal and policy framework of the hotspots. - II.2. Main actors involved in the hotspots. - III. The fundamental rights violations in the hotspots and their reporting. - III.1. Which fundamental rights are being violated? - III.2. Who monitors and reports on these violations? A multi-level approach. - IV. Focus on the European monitoring mechanisms. - IV.1. A contradictory monitoring role of the Euro-pean Commission. - IV.2. An insufficient democratic oversight from the European Parliament?. - IV.3. An attempted role to self-inquire by the European Ombudsman. - IV.4. A stronger role of the Fundamental Rights Agency. - IV.5. Internal monitoring mechanisms: stronger influence on EU agencies? - V. Conclusions. | (Abstract) The European Commission introduced the EU 'hotspot' approach in its European Agenda on Migration (2015). The objective of that approach was to provide operational support on the ground to Member States under particular and disproportionate migratory pressure at their external borders. These centres are put in place in a sensitive environment significantly affecting fundamental rights. Criticism rapidly arose from various UN bodies, civil society organisations and scholars as to the violations of fundamental rights occurring in the hotspots. The present Article analyses the role of five European monitoring mechanisms, being the European Commission, the European Parliament, the European Ombudsman, the Fundamental Rights Agency, and the Agencies' internal monitoring mechanisms. The analysis shows that the various mechanisms are insufficient to monitor the complex environment of the hotspots. It becomes clear that it is essential to enhance political and social monitoring mechanisms to ensure an efficient protection of fundamental rights in the hotspots.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(1), 151-170 | Article | (Table of Contents) I. Introduction. - II. Subsidiarity. - II.1. Subsidiarity and the exercise of the Union's external competences. - II.2. The Union's readmission policy to the test of subsidiarity. - III. Institutional balance. - III.1. Institutional balance in the area of readmission according to the Treaties. - III.2. The Union's re-admission policy to the test of institutional balance. - IV. Conclusion. | (Abstract) Migration governance entails the enactment of a bordering process, drawing lines of inclusion and exclusion, through legal instruments, policy tools and funding decisions. The level of experimentalism through which this process is increasingly carried out by the EU demands constant reflection on its overall limits and constraints, on the part of those working on it from a constitutional perspective. The present Article aims at contributing to that reflection effort by analysing the EU's readmission policy from the standpoint of two principles governing its exercise as a shared competence: subsidiarity and institutional balance. Both principles require EU institutions to engage with the constitutional logic which underlies Treaty choices. On the one hand, subsidiarity reminds the institutions of the need to consider the input and output legitimacy of their intervention in areas of non-exclusive competences. On the other hand, institutional balance contributes to such a legitimacy, by maintaining institutional action and interaction within pre-defined boundaries. In the strongly politicised arena of the common readmission policy, characterised by a high degree of experimentalism, the flexible anchoring in the Treaty framework provided by these two principles would constitute a sound foundation for legitimate EU level action, including through soft law. So far, this potential has been underexploited.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(1), 171-193 | Article | (Table of Contents) I. Introduction. - II. Agencies and agencification. - III. Engagement in Greece in light of push backs and suspension of asylum law. - IV. Involvement at the Hungarian-Serbian border. - V. Expanding competences. - V.1. Standing corps of 10.000 border guards. - V.2. Returns. - VI. Responsibility implications. - VI.1. Liability in EU law and the EBCG Regulation. - VI.2. Indirect responsibility. - VI.3. Direct responsibility before 2019. - VI.4. Direct responsibility after 2019. - VII. Frontex responsibility for operations in Hungary and Greece. - VII.1. Surveillance operations at land and sea borders. - VII.2. Return operations. - VIII. Conclusion. | (Abstract) This Article deals with the potential responsibility of Frontex, the European Border and Coast Guard Agency, for human rights violations, through the case studies of the Greek-Turkish and the Hungarian-Serbian border, where systematic human rights violations have been well-reported. Such violations are studied in the context of the activity of Frontex in border surveillance and return operations in Hungary since 2016, and the Rapid Border Intervention launched in Greece in 2020. This Article looks, in particular, into the indirect responsibility of the agency through assisting the host state in the commission of a violation, and into its direct responsibility due to exercising a degree of effective control over seconded agents. What is more, it notes the shift after the 2019 amendment of the EBCG Regulation from complicity, as the main form of responsibility for Frontex, to direct responsibility. This shift is brought by the expansion of the powers and competences of the agency, especially with respect to the standing corps of 10.000 border guards, including the agency's own statutory staff, increased use of own large assets (aircrafts, vessels), and an increased role in return operations. The author further reflects upon the role of EU agencies in a model of "mixed government", in ensuring the balance between supranationalisation and intergovernmentalism, and amongst the interests of EU citizens, Member States, and European integration. The conclusion is drawn that, no such balance can be struck before human rights, amongst the core EU values, are properly upheld, and before suitable accountability safeguards are set.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(1), 127-149 | Article | (Table of Contents) I. Introduction. - II. "Immigration courts as border zones": courts and judicial interactions in the field of irregular migration. - III. "Is it a crime to be a foreigner?": courts reconfiguring the borders between criminal law and the return directive. - IV. Detention as a tool to "reconfigure and relocate national borders": judicial interactions turning the liberty of irregular migrants into a human right. - V. "Speaking rights to power": judicial interactions on the legal and social exclusion of irregular immi-grants. - VI. Conclusions: Future challenges to judicial interactions. | (Abstract) This Article examines the dynamics between shifting borders - the border as a legal construct instead of a geographical barrier - and law by analysing the role of courts and judicial interactions in the implementation of the Return Directive in Europe. We argue that legislation that states may have introduced primarily to shift and reinvigorate their borders nevertheless holds a promise of opening up more, instead of less, space for legal claims for migrant justice, especially if such legislation is applied by judges across different legal orders. We look at the impact of judicial interactions by European and domestic courts on the Return Directive in three areas in which states have attempted to shift their borders for maintaining irregular migration within exclusive domestic competences: the merging of criminal justice and immigration policing; detention as immigration enforcement; and the legal and social exclusion of irregular migrants. We show that in all these fields, judicial interactions have set into motion a process of incremental constitutionalisation of irregular migration in Europe in two ways. First, such interactions have resulted in extended judicial review over a legal field which has traditionally been considered an exceptional branch of law under the purview of executive control. Secondly, they have allowed irregularly staying migrants, as a group largely excluded from the legal and political processes that characterise modern constitutionalism, to have their interests translated into rights that can be litigated and enforced. By focusing on judicial interactions regarding immigration enforcement, this Article fills a gap in contemporary research on the role of courts in immigration policy which has so far predominantly analysed adjudication of immigration status.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(1), 195-214 | Article | (Table of Contents) I. Introduction. - II. Theoretical framework. - III. Frontex's bumpy road towards fundamental rights protection. - IV. The Consultative Forum's contribution to Frontex's accountability. - IV.1. Political accountability. - IV.2. Legal accountability. - IV.3. Administrative accountability. - IV.4. Social ac-countability. - V. Conclusions. - Annex: List of interviews. | (Abstract) Frontex has been heavily criticized for disregarding fundamental rights in its border management from the outset. To address this critique, the EU legislators established a Consultative Forum on fundamental rights to provide independent advice in fundamental rights matters. Despite the importance of this issue, little effort has been made to study the role and impact of the Consultative Forum. Addressing this research gap, this Article seeks to answer whether the Consultative Forum has improved Frontex's fundamental rights accountability. Theoretically, we will combine the concept of accountability elaborated by Bovens and the notion of dialogues, allowing us to assess the interaction of the Consultative Forum with the various fora which are supposed to hold Frontex to account. As a special form of communication, dialogues focus on the giving and taking of various sorts including information, arguments and justifications. We argue that the status of the Forum and its possibility to engage with internal and external stakeholders on a regular basis provide an opportunity to strengthen dialogues with and between Frontex's accountability fora. While the impact of these accountability dialogues has been modest so far, we nonetheless acknowledge their normative potential to enhance the accountability of Frontex.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(1), 109-126 | Article | (Table of Contents) I. Introduction. - II. Quantitative analysis and scope of judicial competence in the external dimension of EU immigration and asylum policies. - III. Substantive inputs from the Court of Justice's case-law on the external dimension of EU immigration and asylum policies. - IV. What is the Court of Justice's role in this external dimension? - V. Concluding remarks. | (Abstract) This Article analyses the case-law of the European Court of Justice (ECJ) relating to the external dimension of the EU immigration and asylum policies. Its aim is to search for the rationale behind the figures and types of actions brought before the Court in this field, as well as to infer from this case-law the inputs provided by Luxembourg to the design, development and implementation of EU external action on immigration and asylum. The role played by the ECJ in this external dimension will therefore be assessed, by verifying whether it can be ascribed to its usual role within the internal dimension of EU immigration and asylum policies or is rather closer to its case-law on EU external relations in general.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(1), 87-108 | Article | (Table of Contents) I. EU's shifting borders: an introduction. - II. Protecting borders and respecting human rights. - II.1. How to reconcile diverging constitutional objectives in light of hybridity and informality? - II.2. Which way forward with accountability? - III. EU's external borders: of administrative integration and the physical and legal infrastructures of deflection. - III.1. Hotspots as incubators of liminality and of an emerging European integrated administration. - III.2. Beyond hotspots: securitisation and deflection of "risky" migrants. - III.3. Screening, border asylum procedures, and streamlined returns: what's "new" in the new pact on migration and asylum? - IV. Overview of contributions. | (Abstract) Borders have gone far beyond their traditional static function of merely demarcating nation-states. Alongside physical border barriers, such as walls and barbwire fences, new technologies driven by sophisticated legal innovations have contributed to the multiplicity of border controls. These legal techniques have turned the border into an individualised moving barrier, conceptualized as a "shifting border" by Ayelet Shachar. Against this backdrop, this Article introduces, conceptually and thematically, the contributions to this Special Section which critically assess the paradigm of the shifting border in the EU and analyse its implications. We first map out intricate legal issues invoked by the rise of hybridity and informality in the EU's cooperation with third countries on migration and the resulting accountability deficit. Next, we scrutinize the physical and legal infrastructures of mobility regulation (and often deflection) that are currently employed at the EU's external territorial borders. We highlight the emergence of increasing horizontal (between the EU and national level) and vertical (across national levels) administrative integration as a prevailing mode of policy implementation at the EU's borders and reflect on the implications, including both challenges and opportunities, of this development. Finally, we scrutinise the Commission's proposals as part of a New Pact on Migration and Asylum with respect to the envisaged processes at the borders and the streamlining of external border control, asylum, and return in a seamless process finding that they create further risks for fundamental rights and procedural guarantees.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(1), 239-252 | European Forum Insight of 13 May 2022 | (Table of Contents) I. Introduction. - II. Le MACF:entre protection du climat et défense commerciale. - II.1. Une extension du SEQE. - II.2. Une mesure climatique de défense commerciale. - III. Le MACF: une mesure climato-commerciale en prise avec la rigueur des disciplinaires commerciale de l'OMC. - III.1. La qualification juridique du MACF dans le droit de l'OMC - III.2. Le risque d'incompatibilité avec le principe de non-discrimination - III.3. La justification du MACF sur le fondement des exceptions générales. - IV. Le MACF: un révélateur de la nécessité de réformer les règles du droit international économique. - IV.1. Les défaillances du système économique international. - IV.2. Les perspectives de réforme du droit de l'OMC. - V. Conclusion. | (Abstract) The adoption of the EU carbon border adjustment mechanism raises several questions of compatibility with World Trade Organization (WTO) rules. Although the European Commission is presenting this measure as a “purely environmental” measure, it is, in reality, a trade defense measure that aims to protect the competitiveness of European companies. This does not detract from the legitimacy of the Carbon Border Adjustment (CBAM). But it does shed light on the outdat-ed nature of WTO law. Rather than looking at how to make the CBAM WTO-compatible, it is time for a deep reform of the rules of international economic law.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(1), 253-264 | European Forum Insight of 18 May 2022 | (Table of Contents) I. Introduction. - II. Un insuccès imputable à l'obstacle de la recevabilité des requêtes climatiques auprès de la Cour de justice. - III. Explorer les voies de droit à même de porter la défense du climat devant la Cour de justice. - IV. Mobiliser en Europe des droits fondamentaux substantiels adaptés au contentieux climatique. | (Abstract) So far, climate change litigation in the European Union has been a disappointment, since the European Court of Justice denied the admissibility of two promising cases in 2021: Sabo ECLI:EU:C:2021:24 and Carvalho ECLI:EU:T:2019:252. Nonetheless, the European human rights litigation can still play a significant role in alleviating the ongoing climate crisis in the future. There is still a path to find the access to the Luxembourg Court for future claims related to climate change. Renewed standards of European Human Rights could also be one of the keys to create a proper case law to fight global warming.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(1), 265-274 | (Table of Contents) I. Introduction. - II. Context: two preliminary references and the need to prove relevance. - III. The Advocate General opinion. - IV. The nature and scope of art. 267 TFEU. - IV.1. The uniformity of EU law. - IV.2. The tension between power and obligation. - IV.3. CILFIT confirmed and tweaked. - IV.4. A new requirement: giving reasons. - IV.5. The obligation to refer where a matter is raised late in proceedings. - V. Conclusion. | (Abstract) A significant judgment of the Grand Chamber of the CJEU was handed down in case C-561/19 Consorzio Italian Management e Catania Multiservizi and Catania Multiservizi ECLI:ECLI:EU:C:2021:799 (CIM) in October 2021 on the scope of discretion of national courts of last resort when deciding to make a preliminary reference under art. 267 TFEU. Despite the invitation of the Advocate General, the Court shored up the (almost) 40-year-old CILFIT (case 283/81 CILFIT v Ministero della Sanità ECLI:EU:C:1982:335) test, giving clarification as to the aims of art. 267 TFEU and setting down an obligation to give reasons when not referring as a means of containing national court discretion by increasing transparency. The Court, by retaining the CILFIT test while tweaking it and adding a requirement to give reasons for refusal to refer, chose partnership and judicial cooperation with national apex courts while increasing transparency for decision-making thereby favouring the existing vision of the relationship with courts of last resort as one of direct cooperation.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(1), 55-67 | European Forum Insight of 29 April 2022 | (Table of Contents) I. The CBAM and EU leadership theory. - I.1. Introduction. - I.2. The CBAM: assertively combating carbon leakage. - I.3. EU climate unilateralism. - I.4. EU climate leadership: types. - I.5. EU climate leadership: objectives. - II. The CBAM as a case of exemplary/cognitive leadership. - III. The CBAM as a case of structural leadership. - IV. Pushing or pioneering? The CBAM in objectives. - V. Conclusion. | (Abstract) The Carbon Border Adjustment Mechanism (CBAM) is the most recent and assertive component of EU external climate policy. Whilst the CBAM has the potential to accelerate global climate governance, by demonstrating that Parties to the Paris Agreement can combat carbon leakage by means of border measures, it could simultaneously foster animosity and stall progress. Accordingly, the CBAM could either solidify or jeopardize the EU's long-recognized leadership position in global climate governance. This Insight therefore takes an in-depth look at the CBAM as a case of climate leadership. It assesses how the EU seeks to establish itself as a leader by merging methods from the exemplary, cognitive, and structural leadership types, whilst acting as a simultaneously economically and environmentally driven actor with high internal and external climate ambitions. This hybridity attests to the complexity of the CBAM, but also to the composite nature of EU climate leadership via unilateral measures. More specifically, the Insight brings attention to the close interrelation between exemplary and cognitive leadership in novel policy solutions, as well as the complementary role of structural leadership when there is no predetermined hierarchy between international norms. This role raises the question how sustainable EU climate unilateralism will be as the EU's economic clout, and hence its additional leverage, will decrease over time.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(1), 51-54 | European Forum Highlight of 29 April 2022 | (Abstract) The judgment of the Court of Justice in Tempus ECLI:EU:C:2021:663 was long-awaited, as it was curious how the Court would react to a quite generous interpretation by the General Court of the Commission's obligations when carrying out the preliminary examination of State measures. The Court showed its traditional side by choosing to avoid any evolution (or revolution) as regards the burden of proof in actions against Commission's decisions not to raise objections. More specifically, it disagreed that the Commission should be expected to proactively search for any information relevant for its State aid assessment. Instead, it relied on the well-established approach to the finding of existence of serious doubts. While the General Court had put the finger on some undeniable shortcomings of the current State aid procedure and tried to address them, it is also appreciable that the Court identified the risks the novel interpretation could entail in the medium and long term.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(1), 31-41 | European Forum Insight of 7 April 2022 | (Table of Contents) I. Introductory remarks on the question of Western Sahara. - II. Summary of the judgments. - II.1. Joined cases T-344/19 and T-356/19. - II.2. Case T-279/19. - III. Analytical remarks on the judgments. - IV. Conclusion. | (Abstract) The CJEU's approach to international law in the context of territorial disputes has generally attracted substantial criticism, both for its engagement therewith - i.e., its tendency to cherry-pick the applicable rules - and reliance thereon - i.e., its tendency to apply international rules in a dissimilar fashion to their general meaning under international law. These tendencies were however partially remedied in the newest instalments of the Front Polisario saga (joined cases T-344/19, T-356/19 ECLI:EU:T:2021:639, and T-279/19 ECLI:EU:T:2021:640), in the context of which the General Court utilised international law as the applicable legal background against which to assess two seminal questions: the standing of Front Polisario and the obligations pending on the Council in EU external relations. This Insight focuses specifically on the question of standing, assessing the judgments' contribution to this line of litigation in relation to the question of Western Sahara.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(1), 43-49 | European Forum Insight of 7 April 2022 | (Table of Contents) I. Introduzione. - II. Le misure emergenziali nazionali: una violazione ai diritti umani? - III. Le misure emergenziali europee: quale sostegno per i migranti? - IV. Considerazioni conclusive: cupi scenari alla frontiera esterna dell'UE. | (Abstract) The migration crisis at the EU-Belorussian border is escalating and the potential for grave human rights violations against third country-nationals stuck between the two "titans" is more and more likely to materialize. This Insight aims to provide an overview of the emergency measures that have been adopted at the national and EU levels to address this unprecedented migration inflow and highlights the severe repercussions these have on migrants' rights and, ultimately, on their life.

(Series Information) European Papers - A Journal on Law and Integration, 2019 4(2), 641-653 | European Forum Insight of 21 June 2019 | (Table of Contents) I. Introduzione. - II. Il caso AMP Antarctique di fronte alla Corte di giustizia. - III. Il giudizio della Corte: tra ripartizione delle competenze e diritto internazionale. - IV. La sentenza della Corte di giustizia: una mossa in controtendenza a favore degli Stati membri? - V. Osservazioni conclusive. | (Abstract) In November 2018, the Court of Justice ruled on the so-called Antarctica case (judgment of 20 November 2018, joined cases C‑626/15 e C‑659/16, Commission v. Council) on two actions of annulment brought by the Commission against Council decisions approving the submission to the Commission for the Conservation of Antarctic Marine Living Resources ("the CCAMLR") of a reflection paper and a common position on four proposals concerning the creation and study of marine protected areas. The point concerned was the question of on behalf of whom the paper and the positions at issue could be submitted: the Union alone or the Union together with its Member States? Although it had no echo on the doctrinal level, the orientation assumed from the Court does introduce important elements, in particular in relation to the EU institutional framework as well as to the balance between Member States and the Union in terms of external action.

(Series Information) European Papers - A Journal on Law and Integration, 2018 3(3), 1061-1074 | Article | (Table of Contents) I. Citizenships in Europe: harmony and conflict. - I.1. A curious legal status perched on limitations. - I.2. EU citizenship: two lessons. - II. EU citizenship: questioning the established narrative. - II.1. Empowering the citizen - Humiliating the State. - II.2. Promoting democracy - Undermining democratic outcomes. - II.3. Promoting non-discrimination - Undermining equality. - II.4. Implications for the rule of law: the sole possibility of one type of constitutionalism. - III. We have time: the new picture is here to stay. | (Abstract) European citizenship, although derived from the nationalities of the Member States, came to play a significant independent role in reforming European constitutionalism in unanticipated ways by undermining some of the key assumptions underlying the notions of citizenship, equality and democratic accountability. Instead of lingering merely as a super-structure atop Member State nationalities, it instead reshuffles the constitutional basics and not all Europeans emerge as winners as a result. This brief Article provides an introductory background for the Special Section on EU citizenship and rights of European Papers, Vol. 3, 2018, No. 3 and outlines some of the core tensions which EU citizenship brings to light.

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

(Series Information) European Papers - A Journal on Law and Integration, 2021 6(3), 1575-1601 | Article | (Table of Contents) I. Introduction. - II. Methodology. - II.1. Cause and effect: contextualising the EDF. - III. If you want peace, sell more guns? - IV. From theory to practice: the ineffectiveness of arms export controls in the EU. - V. Don't fuel the fire: the EU's duty to act as a responsible arms financier. - V.1. The EU as a guardian of the international legal order. - V.2. The EU as a consistent legislator. - V.3. The nature of the EU's duty to act as a responsible arms financier. - VI. Designing a more responsible European Defence Fund. - VI.1. Operationalising the EU's duty to act as a responsible arms financier. - VI.2. Analysing the EU's policy toolbox. - VII. Conclusion. | (Abstract) Through the European Defence Fund (EDF) the EU will become involved for the first time in arms development. EDF funding is intended to contribute to the EU's strategic autonomy in defence. But arms developed with EDF funding may also be exported to non-EU States. International and EU norms meant to ensure a humane and responsible arms trade are insufficiently effective, leaving room for Member States to export arms even when there is a serious risk of their use in violations of international humanitarian law (IHL). On the basis of both legal and policy-based arguments, this Article argues that the EU has failed to properly take these IHL concerns into account in the EDF Regulation. The EU's commitments to international law and to consistency require it to refrain from con-tributing to activities prohibited under international and EU law. These commitments oblige the EU to act as a responsible arms financier. This would also be in line with EU soft power efforts to pro-mote export norm adoption and compliance internationally. For such soft power efforts to be effective, the EU must visibly uphold those norms it is trying to promote. By failing to enact measures that could mitigate the risk of illegal exports of EDF-funded arms - such as a ban on financing certain high-risk activities or a financial clawback mechanism in case funding recipients export arms illegally - the EU is violating its commitments to international law and to consistency and jeopardising its reputation as an international norm entrepreneur.

(Series Information) European Papers - A Journal on Law and Integration, 2021 6(3), 1527-1551 | Article | (Table of Contents) I. Introduction: when European and constitutional law collide. – II. Constitutional pluralism and the idea of an appeal court. – III. From Karlsruhe to Luxembourg and back: OMT and PSPP. – IV. The many faces of proportionality. – V. Proportionality in the PSPP decision of the FCC. – VI. Discussion. – VII. Conclusion: a way out of constitutional pluralism? | (Abstract) In May 2020, for the first time in its history, the Federal Constitutional Court (FCC) of Germany declared Union acts as being ultra vires. According to the FCC, the European Central Bank (ECB) and the Court of Justice of the European Union (CJEU) had acted beyond their mandates because they did not apply strong proportionality standards to the ECB’s Public Sector Purchase Programme (PSPP). The resulting stalemate within constitutional pluralism has revived the discussions about loyalism within constitutional pluralism and about the possible introduction of an appeal court with the “final say” over constitutional conflict. This Article shows that, contrary to the assessment of some critics, the controversial ruling of the Federal Constitutional Court was within the bounds of loyal behavior within constitutional pluralism. As the analysis of the PSPP conflict also shows, a European super-judicial authority would reach its limits the more we move from the surface to the core of the struggles between European and national constitutional law. The different readings of proportionality are difficult to bridge, and the mutually exclusive claims about the nature of the supremacy of European law are not accessible to compromise at all. We should therefore not expect too much from an appeal court, if it were introduced.

(Series Information) European Papers - A Journal on Law and Integration, 2021 6(3), 1553-1574 | Article | (Table of Contents) I. Introduction. - II. Passalacqua's theory of EU legal mobilization. - III. The Coleman v Attridge litigation. - III.1. Altruism. - III.2. Euro-expertise. - III.3. An open EU legal opportunity structure. - IV. Coleman contributes to a new interpretation of national law. - V. EU legal mobilization in theory and practice | (Abstract) The importance of the preliminary reference procedure for the production of EU case-law is widely recognized in EU legal scholarship, but uncovering the motivations and strategies of the individuals that are involved in the preliminary reference procedure is difficult. The conditions that have the potential to influence whether a national judge poses a preliminary reference to the Court of Justice are so varied and complex that generalizations are difficult to discern. In a recent article, Virginia Passalacqua argues that preliminary reference legal mobilization is most likely to occur when three conditions exist: altruism, Euro-expertise, and a favourable EU legal opportunity structure. This Article tests Passalacqua's theory by applying it to a new area of law. Although Passalacqua derived her theory from an intimate knowledge of EU migration law, her theory "travels well" when it is extended to a new domain, namely, EU disability rights litigation.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(1), 1-14 | European Forum Insight/Highlight of 22 March 2022 | (Table of Contents) I. Introduzione. - II. La causa XK: la normativa rilevante e il rinvio della Procura di Trento. - III. La causa XK: le conclusioni dell'AG e la sentenza della Corte di giustizia. - IV. Considerazioni critiche sul ruolo della Procura della Repubblica quale autorità giudiziaria di esecuzione dell'OEI e sulla risposta della Corte di giustizia. - V. Conclusioni. | (Abstract) In 1996, the Court of Justice ruled out that prosecutors could refer questions for a preliminary ruling on the grounds that their task is not to settle a dispute in complete independence but to submit it to a court by means of criminal prosecution. In case C-66/20 XK ECLI:EU:C:2021:200, the Court was asked to deal with the same issue in the light of the peculiar EU and national rules governing the execution of European Investigation Orders. The divergent solutions proposed by the AG and the Court of Justice are here illustrated. Subsequently, some thoughts are devoted to prosecutors as European Investigation Order executing authorities, to establish whether they may ensure effective judicial protection. Besides, a potentially problematic aspect resulting from the Court's ruling is high-lighted, which may exclude the referral of preliminary questions by European Investigation Order executing authorities altogether.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(1), 15-30 | European Forum Insight/Highlight of 30 March 2022 | (Table of Contents) I. Introduction. - II. Occurrences and recurrences of history: the refugee protection between what is reasonable and possible. - III. An inner glow to the dark side of the moon: beyond unequal solidarity. - IV. From inter-state solidarity to "dual voluntarism". - V. On the Nansen passport and temporary protection: re-linking protection with mobility rights. - VI. The future of asylum in Europe: between realpolitik and differential elements of constitutional capture. | (Abstract) The Temporary Protection Directive (TPD) is one of the most controversial pieces of EU legislation. Adopted back in 2001 and never implemented, it has been at the margins of EU migration and asylum policies until, on 3 March 2022, the Home Affairs Ministers of the EU27 reached an "historic agreement" on its activation. This Insight seeks to contextualise the activation of the TPD for those who flee from Ukraine under the broader horizon of collective responsibility for international protection. Departing from the rationale and constraints embedded in the historical development of refugee status - and underpinning the Common European Asylum System (CEAS) - this Insight explores the potential impact of the current situation at the Eastern borders of Europe on the balance between "what is reasonable and possible" within the framework of the EU asylum and immigration policies.

(Series Information) European Papers - A Journal on Law and Integration, 2021 6(3), 1307-1324 | European Forum Insight of 1 February 2022 | (Table of Contents) I. Climate litigation: a tool to overcome majoritarian paralysis? - I.1. One shared conclusion: politics is failing. - I.2. Different ways leading to a similar conclusion: human rights, tort, policy objectives, national legal obligations, and always international agreements and science. - II. Separation of powers at stake: what role for counter-majoritarian forces? - II.1. Different contexts lead to different separation of powers concerns. - II.2 We cannot exclude (failing) politics despite overwhelming climate science. - III. A research agenda. | (Abstract) The climate crisis is - as far as we can see in 2021 - the greatest challenge of the 21st century. The existence of global warming as a human-made problem and the abstract need of transiting away from fossil energy sources is largely accepted. The question, however, of how to best achieve this transition is a major bone of contention - internationally, within the European Union (EU), and in many EU Member States. However, the issue will only become more pressing and political struggle will only become more forceful as the negative impacts of climate change increasingly affect our lives and livelihoods. Until now, national legislatures and executives have failed to take measures anywhere close to what would be needed to reduce emissions sufficiently to mitigate the climate crisis. The consistent failure of "politics" in different contexts - international, European, and national, or even regional and local - has motivated a growing share of citizens and civil society actors to pursue what is necessary via counter-majoritarian instruments, most prominently through climate litigation. In this Insight, I analyse these growing counter-majoritarian pressures in the context of climate change. My primary focus lies with broader questions of separation of powers, the role of the judiciary in constitutional democracies, and how legally enforceable reduction standards could and should be determined.

(Series Information) European Papers - A Journal on Law and Integration, 2021 6(3), 1325-1337 | European Forum Insight of 11 February 2022 | (Table of Contents) I. Introduction. - II. The economic entity's liability for damages under EU competition law. - II.1 The very existence of the economic unit as a basis for (civil) liability. - II.2. Conditions for determining the responsible economic unit. - II.3. Extension of liability to further companies of the same economic unit. - III. The subsidiary as defendant in damage claims for EU competition law infringements. - III.1. Framework for the exercise of the subsidiary's rights of defence. - III.2. Civil procedural implications of the EC's findings in administrative proceedings. - IV. Joint and several liability of the legal entities of the economic unit. - IV.1. Financial risks of the joint and several liability for shareholders. - IV.2. The internal allocation of the debt for the payment of damages. - V. Conclusion. | (Abstract) The judgment of the Court of Justice in the Sumal ECLI:EU:C:2021:800 case charts new territory in the application of the concept of the "economic unit" in EU competition law. In addition to the established principles regarding the liability of the economic unit for fines imposed by the European Commission, the Court has found that the concept may also serve as a basis for damage claims against a subsidiary of a parent company that has been found to infringe EU competition law. The application of these principles regarding the liability of a subsidiary for its parent's conduct warrants an adjustment of the criteria that determine the existence of the single economic unit. In the case of downward liability, the exercise of decisive influence of the parent company over the subsidiary is not enough. Additionally, to establish a uniform market conduct the subsidiary needs to be involved in the specific economic activity of the economic unit. Based on this new judgment, victims of infringements of EU competition law will no longer be limited to bringing actions for damages against those companies punished by the Commission. They may also hold liable any subsidiary of the parent company belonging to same economic unit - even though it is not named in the Commission's decision - and may benefit from the binding effect of this decision, joint and several liability, and additional fora.

(Series Information) European Papers - A Journal on Law and Integration, 2021 6(3), 1339-1343 | European Forum Insight of 15 February 2022 | (Table of Contents) I. Introduction. - II. A spouse can only have one habitual residence - III. Some clarifications on the definition of habitual residence | (Abstract) In application of art. 3 Brussels II-bis a spouse can only have one habitual residence even if he/she share his/her time between two Member States. The court has the duty to establish his/her habitual residence taking into account the place where such person has the main centre of his or her interests and a stable presence.

(Series Information) European Papers - A Journal on Law and Integration, 2021 6(3), 1345-1361 | European Forum Insight of 22 February 2022 | (Table of Contents) I. Introduction. - II. Self-preferencing as a free-standing abuse of dominance. - III. A legal test unfound. - III.1. The leveraging theory of harm. - III.2. Unequal treatment and the "no economic sense test". - IV. The route not taken. - IV.1. Applying the MEO test to self-preferencing. - IV.2. The merits of the MEO test. - V. Conclusion. | (Abstract) Does a dominant firm abuse its market power in violation of EU competition law and, more specifically, art. 102 TFEU if it accords more favourable treatment to its own products or services than to those of its rivals? In answering this question in the affirmative and holding that self-preferencing constitutes a novel type of abuse of dominance, the European Commission's Google Shopping decision (case AT.39740) expanded the scope of art. 102 TFEU into unchartered territory. The Commission found that Google had abused its dominant position by guaranteeing its own comparison shopping website a more prominent placement on the result page of its general internet search engine than rival comparison shopping services. In November 2021, this decision was upheld on appeal by the General Court of the European Union (case T-612/17 Google and Alphabet v Commission (Google Shopping) ECLI:EU:T:2021:763). This Insight critically reflects on this watershed ruling. The General Court's Google Shopping judgment poses once more the unsettled question of the exact boundaries of the concept of abuse of dominance under art. 102 TFEU. This Insight analyses different attempts by the General Court to redraw the scope of art. 102 TFEU by pinning down the constitutive elements of abusive self-preferencing. Although the Court considered various pathways to determine the legality of self-preferencing, it failed to articulate a clear legal test that establishes limiting principles as to when self-preferencing by a dominant firm violates EU competition law. In light of this finding, this Insight sketches an alternative pathway that would have enabled the General Court to ground the novel theory of harm of self-preferencing within a legally and economically sound framework.

(Series Information) European Papers - A Journal on Law and Integration, 2021 6(3), 1485-1503 | Article | (Table of Contents) I. Introduction. - II. The issue of delegation under the system of the Treaties. - III. Rule-shaping by EU agencies in the financial markets. - III.1 Participation in the executive rulemaking of the Commission. - III.2 Harmonisation through soft law. - IV. Legality and delegation after the financial crisis. - V. Administrative integration beyond the ESAs. | (Abstract) The financial crisis has set new challenges for European integration, including the revision of priorities, principles and mechanisms of micro-prudential supervision of financial markets. Amongst the significant institutional reforms, the intensification of controls on financial markets has been pursued through the establishment of the European Supervisory Authorities in the financial markets (ESAs). This Article aims to analyse the role that these Authorities have been playing in shaping the EU legal order after the financial crisis. As a result of the EMU-related regulation aimed at enhancing EU financial stability after the crisis, the ESAs institutionalise administrative cooperation in micro-prudential supervision. The combination of agencification and crisis management is not new to the development of European integration nor specific to the case of financial markets. Nevertheless, the ESAs represent a peculiar regulatory experience, which share many characteristics of EU agencies, yet move towards an embryonic model of independent regulators. Compared to other EU agencies, in fact, they enjoy wider powers and a much more autonomous status from the Commission. They have acquired highly relevant competences that enhance their role in the internal market regulation. In addition, the CJEU engaged in a partial revision of the interpretative boundaries of the Meroni doctrine concerning the non-delegation of regulatory powers on agencies, allowing the ESAs to exercise some substantive regulatory prerogatives. This Article investigates how these competences affect the EU model of legality, showing to what extent the delegation of powers has changed as a result of the crisis.

(Series Information) European Papers - A Journal on Law and Integration, 2021 6(3), 1415-1435 | Article | (Table of Contents) I. Introduction. - II. Guaranteeing democratic accountability within the EU. - II.1. Democratic accountability in today's EU. - II.2. Persistent shortcomings in the accountability framework post-Lisbon. - III. Democratic ac-countability of EMU decisions. - III.1. EMU decision-making procedures and their characteristics. - III.2. Parliamentary involvement in the different fields of EMU: dialogue instead of full involvement. - III.3. Executive and Eurogroup centrality in EMU. - IV. Conclusion: EMU accountability regime is (still) distinct from the standard EU regime... and rightfully so? | (Abstract) This Article compares the democratic accountability mechanisms in place in the area of Economic and Monetary Union (EMU) with those existing in other fields of EU law. In so doing, it shows that, although democratic accountability standards have generally been improved following the entry into force of the Lisbon Treaty, important shortcomings still exist as a result of institutional flaws and practice in EU decision-making. It then shows that the accountability gap that exists in the field of EMU is even deeper owing to the complexity of the procedures in place, and to the informality that characterises some of them as well as some of the decision-making bodies involved (chief of which is the Eurogroup). The Article concludes by making some proposals to improve the current unsatisfactory situation, improvement which will be ever more necessary in post-Covid times.