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

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

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

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

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

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

The Real Orden was created to communicate in an indirect way the commands that the king issued in his dispatch to the Councils, Boards, Courts and other authorities of the Monarchy. The professionals who assisted him in that task were enabled to transmit his provisions. In the sixteenth and seventeenth centuries, secretaries and court favourites used that power to come between the monarch and higher institutions. Despite the Real Orden has been associated with the Bourbon administration, it had been created and developed two centuries before under the Habsburg Monarchy.

This article analyzes and typifies all production referring to the International Brigades and “Brigadistas” in the current context of recuperating the historical memory of the Spanish Civil War. This includes historical, literary, political, sociological, journalistic, film and museum outputs. We treat the historical sources with the same scientific rigor and objectivity as that of the experimental sciences, and we have come to diverse conclusions concerning the complexity of these sources such as the fact that the contents of the historical sources do not present any real difficulty in their internal coherence and relationships, despite the subjectivity that characterizes them. We propose another method of analysis that differs from the technical and systems analysis of other areas of knowledge such as psychology and mathematical statistics. We are constructing our own research methodology, designed specifically for historical sources. Our goal is to achieve complete accessibility for all sources through digital systems and the Web and thus guarantee research and teaching and, above all, ensure the recovery of the collective memory of the Spanish Civil War and its protagonists.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The article explains which view presents of Portugal, its history and its culture, in LIEA, between 1869 and 1873, in a particularly period of conflict in the Spanish society. The cataloguing of the Portuguese presence in the newspaper allows to glimpse how is seen Portugal in the newspaper (common history and greatness in the past, Portuguese politics today in order to compare it with the own country, stories and anecdotes of travels, inferior customs…), but also, when talking about the other, in a veiled way, we can see how Spain feels with itself (political trouble, feeling of inferiority, resentment over the loss of an own territory….)

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

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 525-535 | European Forum Insight of 3 August 2023 | (Table of Contents) I. Introducción - II. Hechos - III. La falta de accesibilidad como límite al derecho a la vida privada y familiar - IV. Accesibilidad y ajustes razonables: una oportunidad perdida - V. La carga desproporcionada e indebida - VI. Conclusión | (Abstract) Persons with disabilities keep struggling to enjoy their rights on equal conditions with other people de-spite being granted the right of non-discrimination under several international treaties. The European Court of Human Rights (ECtHR) is increasingly turning to a systemic interpretation of the European Convention on Human Rights with the United Nations Convention on the Rights of the Persons with Disabilities (CRPD). However, the case to be studied shows some contradictions between the interpre-tation given by the ECtHR and the Committee of the CRPD and points to the need of a better under-standing of notions related with disability and a stricter control on the States’ discretion to adopt rea-sonable accommodation measures.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 503-511 | European Forum Insight of 27 July 2023 | (Table of Contents) I. Overview. - II. On EU data localisation: On meaning, form and content. - III. The landmark transatlantic data transfer caselaw and framework - framing soft localisation? - IV. The EU’s model horizontal clauses and localisation clauses in digital trade. - V. Conclusions. | (Abstract) The EU increasingly advocates a message of tech or digital sovereignty as its future, which appears to align closely with the concept of strategic autonomy. Arguably digital sovereignty has a highly differentiated understanding in the EU as opposed to the US or China. Increasingly, many suggest EU digital sovereignty in the era of the GDPR is a high protectionist idea. Yet the EU has determined that external relations should not be at the cost of sacrificing EU data protection standards. The links of sovereignty to localisation in the context of digital trade are increasingly problematic for the EU as it seeks to reconcile high standards in the post GDPR era. The EU faced complex critique for the CJEU Schrems II ruling, for the emphasis that it places upon data localisation directly or indirectly and the manner in which it appears to awkwardly champion digital sovereignty, particularly where several EU member states practice similar levels of surveillance. The EU has developed model clauses in digital trade balancing its high GDPR standards and its external relations ambitions. The piece considers the concepts of localisation as a development of digital sovereignty in the EU’s international economic law trajectory. Arguably, the model clauses here turn out to be a template of flexibility not absolutism. Whether the EU’s model horizontal clauses reconciling the GDPR and international economic law goals cause difficult for future public policy or ultimately undermine the EU’s goals as to liberalising data flows remains to be seen.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 411-416 | European Forum Insight of 27 July 2023 | (Table of Contents) I. EU strategic autonomy and technological sovereignty: an overview. - II. Mapping the sectors of EU strategic autonomy and technological sovereignty. - III. Identifying cross-cutting instruments to guarantee EU’s strategic autonomy. - IV. Structure and Contents of the Special Focus | (Abstract) This Special Focus aims at reflecting on the concepts of European technological sovereignty (ETS) and European strategic autonomy (ESA). Taking a legal perspective, it gathers the Insights of a group of scholars on highly debated issues such as the EU’s strategic autonomy, technical and digital sovereignty.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 447-457 | European Forum Insight of 27 July 2023 | (Table of Contents) I. Introduction. - II. The autonomy principle as a leverage to achieve open strategic autonomy. - III. The constitutional autonomy of the EU as a constraint on its strategic autonomy. - IV. Conclusion. | (Abstract) This Insight analyses whether and to what extent the legal implication of the EU operating as an autonomous legal order can contribute to also ensuring its strategic autonomy. The way the European Court of Justice has interpreted the autonomy principle and preserves the autonomy of the EU legal order enhances the strategic autonomy of the EU by preserving its freedom to act. But while its being an autonomous legal order can help the EU to promote a rules-based international order, its ambition as a norm-setting power remains largely dependent on the attitude of its Member States.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 487-501 | European Forum Insight of 27 July 2023 | (Table of Contents) I. Introduction. - II. Space as enabler of EU strategic autonomy. - III. Institutional complexities of EU space governance: the role of ESA and of the Member States. - IV. The material complexities of EU space governance: the civil/military nexus and the different legal basis applicable to civil and security aspects of space. - V. Tackling material complexities: improving the security/defence requirements and uses of EU space infrastructure. - VI. Addressing institutional complexities: the single EU Space Programme and the EU Space Programme Agency (EUSPA). - VII. Final remarks. | (Abstract) EU space policy is an important field in the pursuit of EU strategic autonomy, both as regards the need to protect EU space infrastructures (and industry) from external threats and as regards the need to strengthen EU capacity to act in the space domain for security and defence purposes. However, some complexities exist in the governance of EU space policy, which may affect its ability to deliver in the above-mentioned terms. Reference is made, in particular, to: (i) the role of other international organisations, such as the European Space Agency (ESA), and of the member States, in shaping and carrying out EU space policy (ii) the nature of EU space competence as designed in the Treaties and the different procedures applicable respectively to civil and security/defence aspects of space. Recent practice shows that EU is striving to overcome such limits, with a view to equip its own space policy with the necessary tools to address security and defence challenges of the Union and of the Member States. The Insight gives account of such recent practice and singles out the main developments which allowed the EU legal system to cope with the above-mentioned difficulties, in order to realize a shift from a purely scientific/commercial approach to space policy to a more strategic one, where security and defence interests of the EU and of the Member States are taken into account and possibly addressed.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 429-445 | European Forum Insight of 27 July 2023 | (Table of Contents) I. Introduction. - II. Different meanings of ‘Europe’s technological sovereignty’. - III. Reinforcing the EU’s industrial base, competitiveness and its resilience to crises through internal measures: the proposed Chips act and the approval of important Projects of Common European Interest. - IV. Reinforcing ‘technological sovereignty’ through EU trade measures. - V. Member States’ contribution to the achievement of ‘Europe’s technological sovereignty’ through export control of advanced semiconductor technology. - VI. Conclusions. | (Abstract) This Insight focuses on the EU and Member States’ initiatives to reinforce Europe’s technological sovereignty (i.e. technological leadership and independence from others (especially China)) as far as semiconductors are concerned. It explores whether it is necessary to change the current allocation of powers between the EU and Member States to achieve the mentioned objective. It shows that the EU has enacted (or proposed to adopt): i) a number of internal measures to address the EU technological gap in various areas of the EU’s competence, including those in the field of the internal market; ii) unilateral trade measures designed to establish a level playing field for EU operators and to protect Member States’ technological assets. National authorities have also taken unilateral trade measures such as the Dutch decision of March 2023 to establish an export control of chip technology. This measure was enacted at the request of the United States and is based on the need to avoid dependence, on the preservation of technological leadership and on security grounds. It is an attempt to react to China’s strategy (“Made in China 2025”) to close its technological gap in various areas, including semiconductors. The Dutch decision illustrates that the EU institutions and Member States can each exercise their competences and successfully protect Europe’s technological sovereignty (technological leadership) on the basis of a “shared sovereignty”. There is no need to change the Treaty rules to strengthen Europe’s sovereignty. However, it is necessary that Member States inform the Commission and coordinate their actions at EU level.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 459-474 | European Forum Insight of 27 July 2023 | (Table of Contents) I. Introduction. The case for exploring ‘ETS’ through the CSDP and possible implications. - II. A conceptual framework.‘E-T-S’: what’s in it? - III. ETS in the Strategic Compass: conceptual tenets and regulatory tools. - IV. ETS and defence: moving across and outside the CSDP legal framework. Some concluding remarks opening to further research. | (Abstract) The expression “European Technological Sovereignty” (ETS) has gained momentum in EU discourses. However, it is not defined in EU policy documents and legal acts. Although ETS is mainly connected with the functioning of the internal market, this idea is employed in an array of spheres where the EU enjoys different types of competences. This Insight moves from the consideration that there is room for analysing its use with reference to defence under the Common Security and Defence Policy (CSDP). First, this allows an examination of how “fostering ETS” shapes EU policy on a matter which is an expression of sovereign prerogatives but on which the EU is far removed from enjoying powers like a sovereign State. Second, this may in turn contribute to the debate on the nature and function of this category now in use. For the purposes of this Insight, the focus of the analysis will be the 2022 Strategic Compass. Accordingly, the Insight outlines a conceptual framework where the three components of ETS can be broadly understood. Then, it identifies the conceptual tenets of ETS as they appear the 2022 Strategic Compass, as well as the fields and the corresponding EU competences where the Compass envisages “fostering ETS” in relation to defence. Finally, the results of this investigation and their potential broader implications in light of the conceptual framework are discussed against the current configuration of the “defence” element of the CSDP in the Treaties.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 475-486 | European Forum Insight of 27 July 2023 | (Table of Contents) I. Introduction. - II. The debate concerning the EU defence industry and strategic autonomy: why is it central nowadays? - III. The notion of strategic autonomy and the EU defence industry. - IV. EU defence industry: The relevant legal framework. - V. A glimpse into the future: The Strategic Compass and the next steps toward autonomy. - VI. Conclusions. | (Abstract) National autonomy in the defence industry sector is often considered key by Member States to guarantee their national security interest. However, recent developments such as the Russian military aggression against Ukraine brought the need for further integration in this domain into the spotlight. The aim of this Insight is to analyse the EU legal framework of the defence industry through the prism of strategic autonomy, considering whether such deeply fragmented regulatory system is suitable for achieving this objective. It shows that, even if the current initiatives improve cooperation between Member States in this sector, there is still the underlying lack of a common purpose to achieve full strategic autonomy that would allow transforming the EU into an autonomous geopolitical actor. Nevertheless, the defence industry is a field where Member States could more easily perceive the benefits deriving from further integration and, therefore, it is a promising starting point in the path toward European strategic autonomy in defence.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 513-523 | European Forum Insight of 27 July 2023 | (Table of Contents) I. Introduction. - II. From Member States’ national security to ‘EU national security’. - III. From protection to ‘offensive defence’ of economic security interests. | (Abstract) The adoption of EU Regulation 2019/452 establishing a framework for the screening of foreign direct investment into the Union has been met with many reservations. While it appeared that it was becoming crucial for the EU to adopt a screening instrument in order to protect essential European interests, the mechanism that came into force in the autumn of 2020 seems too modest, giving the Commission no decisive power. However, thanks to a succession of unprecedented global crises (economic crisis, COVID-19 crisis, Russian aggression against Ukraine) and the emergence of offensive strategies on the part of certain foreign investors, in particular Chinese investors, the European Commission has gradually strengthened the European FDI control mechanism. This mechanism is now focused on the protection of European security, which includes economic security. Moreover, the Commission is clearly seeking to strengthen its own powers in this area. In order for the European FDI screening system to become an instrument for the defence of European strategic autonomy, the next step could be a reform of the system, which would formalize these transformations and would make the Commission the lead authority in the area of FDI control.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 405-410 | European Forum Highlight of 26 July 2023 | (Abstract) The Digital Markets Act (DMA) intends to ensure contestable and fair markets in the digital sector through the introduction of obligations for “gatekeepers”. This term represents a legal innovation. No mention of gatekeepers can be retrieved in the case law regarding digital platforms, and the origins of the nomenclature cannot be ascribed to competition law. The concept can, however, be linked to information studies: its adoption in the DMA reflects the centrality of information control for contestability and fairness. A look at the DMA treatment of gatekeepers reveals that, on the one hand, it is coherent with an information-based approach, while on the other it is not devoid of elements typical of a competition law approach. Only the future interpretation of the DMA will show whether the Regulation is an attempt to inform competition policy with notions fit for the data economy or if it is bound to depart from a competition-based reading.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 417-428 | European Forum Insight of 27 July 2023 | (Table of Contents) I. Introduction. - II. Strategic autonomy in EU external action discourse. - III. Strategic autonomy and the collective exercise of sovereignty at the EU level. - IV. Streamlining EU external action through strategic autonomy. - V. Conclusions. | (Abstract) Over the last decade, strategic autonomy has become a key tool for structuring the EU’s external action. This Insight examines the evolution of the concept in EU discourse and practice, explores its consequences on the emergence of the notion of "European sovereignty", and analyses how strategic autonomy is used to streamline both hard-power and soft-power contemporary EU external relations. The central role of strategic autonomy – in turn an ambition, an objective, a process or even a method – sheds new light on core issues surrounding EU external action law, such as power, sovereignty and the articulation of the EU-Member State relationship.

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

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(1), 273-299 | Article | (Table of Contents) I. Introduction. – II. From its commercial origin to the acquired purpose: The shifts of PNR data. – III. The EU-UK TCA and the problem of oversight in EU PNR law. – III.1. The UK-EU TCA PNR provisions. – III.2. Operation of the TCA oversight provisions in practice. – III.3. Analysis. – IV. 'Adequacy' standard for the UK-EU PNR data transfers. – IV.1. Overview of 'Adequacy'. – IV.2. The shifting maze of PNR data processing purposes: from law enforcement to border control. – IV.3. Conditions to access PNR data. – V. PNR data processed for criminal justice or border control? – V.1. Overview of EU law. – V.2. The juxtaposition of border control and criminal justice in EU PNR agreements. – VI. Conclusion. | (Abstract) The EU-UK Trade and Cooperation Agreement (TCA) offers a new chapter in the treatment of Passenger Name Records (PNR), placing PNR law in an EU trade agreement. The TCA exemplifies acutely pre-existing tensions now in the framework of an EU agreement with a third country. In this Article, we examine the evolution of PNR law and look at aspects of the TCA as to PNR relating to the sensitive issue of personal data protection in the context of cross-border data sharing for law enforcement, criminal justice, and border control purposes as an example of the thorny intersection of public law obligations placed on the private sector to provide bulk access to personal data collected for commercial purposes to public sector actors in the framework of counter-terrorism or countering serious crime. First, we provide a brief account of ‘repurposing’ the use of PNR data at the intersection of criminal justice and border controls in EU law and UK law. Secondly, we examine the question of oversight in EU law and under the TCA. Thirdly, we consider the TCA provisions on PNR data sharing in light of the strict fundamental rights review that the CJEU has adopted. Finally, we look at the incorporation of PNR data sharing into the agreement’s law enforcement section and the character of border control and criminal justice. The Article argues that PNR law appears vulnerable when seen in the light of the other international data transfers emerging on the question of oversight and accountability.

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

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(1), 317-322 | Dialogue | (Abstract) The relationship between EU law and the ECHR has undergone significant changes in recent decades. The EU has developed its own Charter of Fundamental Rights, gained powers to promote specific fundamental rights, and negotiations for EU accession to the ECHR are ongoing. These evolving parameters strengthen the interactions between the EU and the ECHR. To ensure the coherence and harmony of the European architecture of fundamental rights, the ECJ and the ECtHR are required to articulate their legal systems. In the post-Charter era, the ECtHR has displayed increasing openness to EU law. Conversely, the ECJ has shown a trend towards “Charter centrism”. This special Dialogue section examines the ECJ's use of ECHR and ECtHR case law in the post-Charter era and the factors contributing to the “Charter centrism” trend. Scholars Romain Tinière and Johan Callewaert present distinct yet complementary perspectives on the topic. Tinière delves into the internal dynamics of the ECJ’s use of the ECHR, while Callewaert provides an external viewpoint from the standpoint of national judges. Even if the EU successfully accedes to the ECHR, the interaction between the ECJ and the ECtHR will remain crucial for upholding fundamental rights in Europe. While recognizing the ECJ's need to develop its own approach to fundamental rights in specific contexts, maintaining consistency and methodological rigor in articulating the two sources of fundamental rights protection is essential for enhancing legal certainty.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(1), 323-330 | Dialogue | (Table of Contents) I. Introduction. – II. Post-Charter situation at first glance. – III. Post Charter situation: Second thoughts. – III.1 Autonomy (first) – III.2 Legitimacy (when needed). – IV. Conclusion: What about the standard of protection? | (Abstract) Whilst the ECtHR’s case-law has occupied a central position in the CJEU’s fundamental rights case-law since the latter’s beginning, the entry into force of the EU Charter of Fundamental Rights seems to have opened a new and more chaotic period. Relying on this new fundamental rights instrument, the CJEU tends to cite ECtHR case-law in a far less systematic way, raising questions about the function of this case-law in the CJEU’s new and ever-growing fundamental rights jurisprudential corpus. But, beyond this apparent inconsistency, nothing has really changed: ECtHR case-law still helps the CJEU to legitimate its own jurisprudence, being summoned whenever the EU Court needs it, and the ECHR human rights standard is still the CJEU’s first (but not only) compass.

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

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

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(1), 243-271 | Article | (Table of Contents) I. Introduction. – II. Overturning Democracy in the Name of the Law: The Use of Creative Compliance by EU Autocratic Legalists. – III. Setting the Context: The Court’s Ruling in Transparency of Associations. – III.1. The 2017 Transparency Law. – III.2. The Court Is in Session! – IV. (Almost) New Actors, Same Old Story: State Audit Office v Civil Society. – V. Remarks Beyond the Hungarian Case: The Impact of Creative Compliance on the Effectiveness of EU Law. – VI. Conclusion. | (Abstract) In mid-April 2021, the Hungarian government announced the withdrawal of the 2017 Transparency Law. In its ruling in case C-78/18, in the context of a Commission-led infringement procedure, the Court declared such law in violation of civil society organisations (CSO) and foreign funders’ freedom of movement of capital as well as their freedom of association, right to respect for private and family life, and right to protection of personal data. Following intense months of dialogue with the European Commission, in mid-May 2021, the Hungarian Parliament repealed the law. However, at the same time, it adopted a new one on the Transparency of CSOs, which still presents the same shortcomings as the previous one and, consequently, continues to prevent CSOs from exercising their role of democracy watchdogs. This Article argues that the new law is the latest manifestation of Hungary's tendency towards autocratic legalism. By relying on a creative compliance-based approach, the Hungarian legislator proposed a law that is only in appearance in line with and based on the ruling of the Court. The Article argues that such a strategy, if winning, has the potential to spread its effects beyond the Hungarian border. It claims the Commission finds itself forced to choose between continuing the existing infringement procedure or accepting a merely formalistic implementation of the Court’s ruling, in a historical moment where the legitimacy of the Court of Justice to decide on values-related cases is more than ever questioned.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(1), 331-347 | Dialogue | (Table of Contents) I. Convention Control Over the Application of Union Law by Domestic Courts. – I.1 The principle. – I.2 Applications. – II. The Case for a Wholistic Approach to Fundamental Rights – State of the Play. – II.1 The European Court of Human Rights. – II.2 The Court of Justice of the European Union. – III. Conclusion. | (Abstract) Legal acts performed by EU Member States applying Union law come within the scope of the Convention and can give rise to adjudication by the ECtHR. A long series of judgments illustrate the ECtHR’s approach regarding the application of Union law by the courts of EU Member States. The Convention and Union law are not two autonomous systems separated by a watertight fence. Both European Courts should therefore adopt a wholistic approach in this area, because only a wholistic view takes full account of the legal reality which is one of interaction and intertwining. The ECtHR makes abundant use of EU law sources, thereby always explicitly referring to them. Three different categories of cases can be identified in how the CJEU goes about the Convention in its case-law.

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

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(1), 22-238 | European Forum Insight of 11 July 2023 | (Table of Contents) I. Introduction. - II. Defining migration instrumentalization. - III. Amendments to national legislation against instrumentalization of migration episodes: the cases of Lithuania, Latvia, and Poland. - IV. National emergency measures and their compliance with the fundamental rights framework. - V. EU legislative changes to address the instrumentalisation of migration phenomena. - VI. Concluding remarks. | (Abstract) Lithuania, Latvia, and Poland have amended their legislation to respond to the increased migration flows caused by the policies of instrumentalisation of migrants implemented by the Belarusian government. This Insight illustrates these responses and shows how these EU Member States instrumentalised border tensions with Belarus to adopt restrictive migration policies impacting the rights of people on the move. Such legislative changes follow a paradigm shift at the EU level, in light of which third country nationals who are subject to instrumentalisation are qualified as hybrid threats. As a consequence, EU migration management policies legitimise national restrictive border control measures into the EU legal framework, to prevent the entry of foreign persons into the EU territory. Such a policy approach confirms a chronic inability of the EU to respond effectively and uniformly to mass migration movements, thus driving hostile third States to perpetrate hybrid attacks, such as instrumentalisation of migration practices, to gain political or economic advantages over the EU and its Member States. This Insight argues that EU migration and asylum policies must conform to the highest standards of fundamental rights protection to avert future hybrid attacks in the form of mi-gration instrumentalisation practices. Furthermore, the EU should abandon a securitization rationale that equates people on the move as security threats, thus legitimizing their dehumanisation and dis-regarding their rights.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(1), 159-189 | Article | (Table of Contents) Ι. Ιntroduction. – II. The origins and the evolution of the environmental integration principle in Inter-national Law. – II. The evolution, legal status, normative content and functions of the environmental integration provision in EU Law. – III.1. The evolution of the environmental integration provision and its legal status in EU Law: towards a legal principle of environmental integration. – III.2. The addressees and scope of the principle. – III.3. The normative content of the environmental integration principle in EU Law though its association with the objective of “sustainable development”. – III.4. The functions of the principle. – ΙΙΙ.5. The insufficient operationalisation of the environmental integration principle before the adoption of the European Green Deal. – IV. Assessing the contribution of the environmental integration principle to the fundamental objective of sustainable development in light of new developments. – IV.1. The European Green Deal and the environmental integration principle: Introduction. – IV.2. The implementation of the environmental integration principle in the EU Energy and Climate policy in alignment with the EGD objectives. – IV.3. The implementation of the environ-mental integration principle in selective fields of EU Policy in alignment with the EGD objectives. – IV.4. EU Financial Instruments and the environmental integration principle. – V. Conclusions. | (Abstract) The environmental integration principle, which aims to incorporate environmental considerations into the regulatory instruments in the fields outside Environmental Law, initially emerged and evolved in International and subsequently in EU Law. Since its emergence, the environmental integration principle has been closely linked to the concept of sustainable development, given that the principle is perceived as a key instrument for its realisation. The main aim of this Article is to answer the question of whether the environmental integration principle has not only a procedural, but also a substantive meaning in EU Law and, if this question is answered in the affirmative, the question of how the substantial component of the principle can be determined. Answering this question pre-supposes not only analysing the legal status, the addressees and the regulative context of the respective provision, but also certain recent critical developments that have taken place since the adoption of the EU Green Deal. The main message underpinning this Article is that the principle also has a substantive meaning that has been reinforced since the adoption of the EU Green Deal, but often it cannot be clearly delineated. The implementation of its substantive component through the respective legal instruments can also result in conflicts with the provisions of the EU Economic Constitution.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(1), 191-219 | Article | (Table of Contents) I. Introduction. – II. Evolution of Animal Welfare Law and policy in EU agriculture. – II.1. Minimum animal welfare standards. – II.2. CJEU interpretation. – III. Art. 13 TFEU: mainstreaming animal welfare in EU agriculture policy. – III.1. Legal effect. – III.2. Limitations and tensions. – IV. CJEU reading. – IV.1. Halal Grand Chamber. – IV.2. Centraal Israëlitisch Consistorie van België Grand Chamber. – IV.3. An EU market? – IV.4. Art. 13 TFEU: read as a whole. – V. Comments in conclusion. | (Abstract) Minimum standards of welfare for farm animals in harmonised EU norms derive from the Treaty Title on Agriculture in the absence of a conferred competence in animal welfare. Subsequently, a competence “of sorts” in animal welfare has been inserted into the Treaties in art. 13 of the Treaty on the Functioning of the European Union (TFEU). Art. 13 TFEU incorporates an integrative stipulation to pay full regard to the welfare requirements of animals as sentient beings in the formulation and implementation of certain EU policies, inclusive of EU agriculture policy, while respecting the customs of Member States relating in particular to religious rites, cultural traditions and regional heritage. Yet, in the constitutional framework of the Treaties there are limitations, and tensions arise between EU policy in agriculture and the non-market objective of animal welfare. Art. 13 TFEU is not driving evolving EU policy in farm animal welfare or EU legislative revision; the legal force of art. 13 TFEU remains in doubt. Concomitantly, recent CJEU Grand Chamber rulings in EU agriculture/animal welfare law read in the light of art. 13 TFEU have recognised the marked social and cultural momentum to improve the welfare of animals in agriculture, and reinforced the constitutional standing of art. 13 TFEU, with positive implications for animal welfare mainstreaming. This Article explores the application of art. 13 TFEU in EU agriculture policy, and reasons that the scope exists for the CJEU further to exploit its potential.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(1), 221-226 | Article | (Abstract) This explanation presents the Special Section “The horizontal clauses of arts 8-13 TFEU: normative implications, implementation and potential for mainstreaming”, which collects six Articles originally presented at a workshop devoted to the integration clauses of the TFEU held in October 2021. With a view to working towards a better understanding of arts 8-13 TFEU and their contribution to gender equality, non-discrimination, social protection, environmental protection, consumer protection and animal welfare, the six Articles reflect on the legal nature, value and effects of relevant provisions on EU law- and policy-making. Setting the scene, the explanation outlines the main research questions that guide the analysis in the six Articles and explains how each contribution feeds into the Special Section.