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

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 665-687 | Article | (Table of Contents) I. Introduction. – II. Regulating innovation in the digitalised age. – II.1. Impact of regulation on innovation. – II.2. Crypto-assets as innovation: a moving target. – III. The regulation of crypto-assets in the EU. – III.1. The MiCA framework, its objectives and challenges. – III.2. Activity-and risk-based approach to regulating crypto-assets. – IV. Future-proofing the EU regulation of crypto-assets. – IV.1. The challenge of future-proofing a regulatory intervention in innovative markets. – IV.2. Activity-based regulation of crypto-assets: future-proofing the regulatory perimeter. – IV.3. Risk-based approach to regulating markets in crypto-assets. - V. Conclusion. | (Abstract) The 2023 EU regulation of markets in crypto-assets (MiCA) is a timely and ambitious response to the regulatory challenges of a fast-developing and technology-intensive field. The new regulation expands the regulatory perimeter, thus enabling EU-wide supervision of crypto-asset service providers and issuers of the so-called “stablecoins”. As such, the MiCA is in line with the key objectives of the 2020 EU Digital Finance Strategy: it updates the existing EU regulatory framework to facilitate digital innovation while protecting European consumers. “Same activity, same risk, same rule” approach is at the core of the MiCA regime. The new regulatory intervention, however, is to be put to test by the incessant technological and business model innovation within the crypto industry. Is this new regulation future-proof? This paper identifies and explores the two main points of vulnerability that often undermine the future-proof nature and, ultimately, the effectiveness of regulatory interventions in innovative sectors. First, it analyses the structures that define the scope of the new framework, and their capacity to adjust to and incorporate innovation falling outside of the regulatory perimeter. Second, the paper explores the mechanisms that ensure the regulatory and supervisory framework under the MiCA remains relevant and able to address the changes in the amplitude and sources of risks. Against this background, the paper discusses two features indispensable for a future-proof regulation: the openness of the regulatory perimeter, and the regulatory capacity for risk anticipation.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 803-808 | European Forum Highlight of 28 November 2023 | (Abstract) This paper seeks to address the question of the future of the Ukrainian territories that have recently been or are currently being occupied by Russia primarily through the prism of relevant rules of international humanitarian law. After briefly recalling the conditions for the beginning of a belligerent occupation, the focus will be on the modalities for its termination, which will be examined and discussed with reference to the case of Ukraine.

(Series Information) European Papers - A Journal on Law and Integration, 2024 9(1), 39-52 | European Forum Insight of 15 April 2024 | (Table of Contents) I. The complexity of the geopolitical matter. - i.1. EU gas policy before 2022. - i.2. The Russian retaliation after the invasion. - II. The measures adopted in response (and their opposers). - ii.1. The first steps: saving gas. - ii.2. Gently steering the market. - ii.3. Joint purchases of gas. - ii.4. Enforcing solidarity. - III. The most debated aspect: what limits to market intervention? - iii.1. Regulation 2022/2578: another round of the price cap debate. - iii.2. A balancing solution? - IV. The effectivity of the measures: the impact assessments and the comments. - iv.1. After the emergency: the situation after one year. - iv.2. The energy community (was) now: was the EU prepared? - iv.3. The legal issues. - iv.4. The return of geopolitics and the future of an open(?) strategic autonomy. | (Abstract) This Insight offers an overview of the EU's evolving energy policy in the face of the energy crisis which followed the Russian illegal invasion of Ukraine, highlighting the critical interplay between legal measures, market dynamics, and geopolitical strategy. In the first section, the Insight will examine the history of the EU policy on gas and its inherent risks, presenting the supply shock which occurred after the invasion February 2022. In the second section, the Insight details the legislative measures adopted under RepowerEU in the field of gas, describing the various approaches such as reducing consumption, ensuring storage, and fostering interstate solidarity, highlighting how the political debates between member states have contributed to shape the Regulations on the matter. In the third section, the Insight also explores the complex dynamics of market interventions, particularly the debated Market Correction Mechanism (MCM) and its implications for EU energy markets. In the final section, the Insight examines the impact of these measures, noting the mixed outcomes highlighted in the EU commissioned reports and presenting the criticism of other stakeholders, highlighting the legal challenges in implementing coordinated energy policies among Member States with diverse interests. Moreover, reflecting on the post-crisis landscape, the Insight advocates for a transition from emergency measures to strategic foresight in energy policy. It argues for the EU's need to balance national autonomy with collective energy security, suggesting a shift towards more integrated energy policies also in light of preserving the EU’s strategic autonomy in response to emerging geopolitical challenges.

(Series Information) European Papers - A Journal on Law and Integration, 2024 9(1), 21-38 | European Forum Insight of 15 April 2024 | (Table of Contents) I. Introduction. - II. Context. - III. The draft regulation in detail. - III.1 Category 1 NGT plants. - III.2 Category 2 NGT plants. - III.3. Provisions for delegated and implementing acts as well as guidance material. - IV. Assessment of different scientific aspects in the regulation. - IV.1. Scientific reasoning of equivalence criteria as given in Annex I. - IV.2. Scientific reasoning of risk assessment criteria as given in Annex II. - V. Assessment of different legal aspects in the draft regulation. - V.1. Deliberate releases of cat 1 plants and committee procedure. - V.2 Precautionary principle. - V.3. Cartagena protocol. - v.4. Amendment of Annex I via delegated act. - VI. Ongoing discussion | (Abstract) This Insight explains in detail, yet easily understandable, the contents of the European Commission’s draft regulation on plants obtained by certain new genomic techniques and their food and feed. It critically comments on the underlying scientific considerations and discusses potential legal issues – the precautionary principle being one of them, though arguably not the most important one. Finally, the Insight summarizes the ongoing discussions and developments regarding the draft regulation. The Authors also hint at potential amendments, which might resolve some of the remaining problems.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1679-1695 | Article | (Table of Contents) I. Introduction. – II. The normative positioning of the Union: a new space for the collective exercise of sovereignty. – II.1. Human rights and criminal law, a source of inspiration and legitimacy. – II.2. Normative interpretation and hybridization within the Council practice. – III. “Supplementing” criminal repression? A new space to overcome the limits of jurisdiction. – III.1. Foreign policy v. criminal repression: the nature and purpose of the measures involved. – III.2. Overcoming the limits of jurisdiction and extending the reach of the measures. | (Abstract) The EU Global Human Rights Sanctions Regime was adopted by the European Union in December 2020, following in the footsteps of its allies and some of its own Member States. Initiated across the Atlantic in response to the murder of Russian lawyer Sergei Magnitsky, these thematic international sanctions can now target anyone associated with the most serious human rights violations. Presented as key levers in the international fight against impunity, these instruments lie at the confluence of foreign policy and criminal justice. The EU Global Human Rights Sanctions Regime is therefore a privileged observation point for studying the evolution of practice in areas that are traditionally closely associated with State sovereignty. More specifically, the analysis, carried out within the framework of both EU external action law and public international law, shows how the EU Global Human Rights Sanctions Regime enables the Union and its Member States to grasp some international situations which would fall outside their single competences and jurisdictions. This in turn illustrates a form of enhanced, collective and long-armed sovereignty, exercised on the international stage by the EU and its members in the service of their values and strategic interests.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1575-1597 | Article | (Table of Contents) I. Introduction. – II. New formulas in the regime of mutual recognition in the EIO. – III. The question of defining investigative measures and having recourse to a different one. – III.1. The applicability of the corrective mechanism in other cooperation systems. – IV. An increased extent of direct communication between the issuing and the executing authorities. – IV.1. Regulating greater communication between issuing and executing authorities as a form of institutionalised distrust. – V. The fundamental rights-based refusal ground and the question of its applicability. – V.1. Making the fundamental rights-based refusal ground the norm instead of it being the exception. – VI. Conclusion. | (Abstract) This Article concerns the European Investigation Order (EIO) and its relations to the principle of mutual recognition. The principle has been the engine of judicial cooperation in criminal matters between Member States of the European Union since the adoption of the Tampere conclusions in 1999. Member States rely on the principle in creating cooperation systems, thereby facilitating interaction among their criminal justice systems. Since Member States refrain from extensive criminal law harmonisation, the principle is of utmost importance. As such, a common regulatory technique was developed through which the principle is given effect in every cooperation system created so far. Although this regulatory technique was mostly followed in the directive establishing the EIO, it also introduced several novelties in the regime, notably the option to have recourse to another investigative measure, the possibility for a greater extent of communication, and the fundamental rights-based refusal ground. This Article argues that these rules make the EIO directive more protective of fundamental rights and show a new trend in the cooperation systems based on the principle of mutual recognition. In addition, while reviewing the applicability of these rules in other cooperation systems, it provides a proposal on how to apply them to enhance mutual trust between Member States through legislation.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1697-1740 | Article | (Table of Contents) I. Introduction. – II. Aid and assistance provided to Ukraine since February 2022. – II.1. The European Union and its Member States. – II.2. The United States of America, the United Kingdom and Canada. – II.3. Russia’s response. – II.4. Reactions from other states. – II.5. Conclusion. – III. Jus ad bellum, neutrality law, and jus in bello: the need for legal coherence. – III.1. Collective self-defence. – III.2. Different shades of neutrality? – III.3. Party status. – IV. Conclusion. | (Abstract) To assist Ukraine in defending itself against Russian aggression, the EU invoked the European Peace Facility to “finance the provision of […] military equipment and platforms designed to deliver lethal force for defensive purposes”. It marks the first time that the EU is funding the provision of lethal equipment to a third state. In October 2022, the EU announced the creation of EUMAM Ukraine to train Ukrainian Armed Forces to use the weapons EU Member States have provided. Since February 2022, the EU’s military aid and assistance has only increased. EU Member States are also providing military aid and assistance bilaterally, including training Ukrainian soldiers. In so doing, they are aligning their assistance with “like-minded” partners and NATO Member States, particularly the United States of America, the United Kingdom and Canada. This Article will assess the supply of military aid and equipment to Ukraine as well as the training of UAF through the lens of international law. One wonders whether the EU’s military aid and assistance amounts to collective self-defence, even if none of the supporting actors have invoked art. 51 UN Charter. The argument could be made that the EU and its Member States are breaching neutrality law in supplying lethal aid to Ukraine, albeit it has been argued that neutrality law is no longer relevant in the post charter era. The question also arises whether these actors have become parties to the conflict, even if supporting states and the EU frequently assert that they are not co-belligerents.

(Series Information) European Papers - A Journal on Law and Integration, 2024 9(1), 1-15 | European Forum Insight of 27 March 2024 | (Table of Contents) I. Introduction. - II. Background to the case. - III. The Advocate General's Opinion. - IV. The Judgment. - IV.1. The Analysis Under Art. 102 TFEU. - IV.2. The Analysis Under Art. 101 TFEU. - IV.3. Freedom to Provide Services. - V. Analysis. - V.1 What Role for the "European Sport Model"? - V.2. Can the UEFA/FIFA Rules Be Objectively Justified? - V.3. Broadcasting Rights, or How to Apply the European Sport Model.- VI. Conclusion: What Next for European Sport Law? | (Abstract) In European Super League Company (ESLC), the Court of Justice was faced with a challenge against the legality of FIFA and UEFA’s prior approval scheme for the creation of, and participation in, breakaway football competitions. The Court’s judgment is lengthy and nuanced, and touches on many of the issues which have characterised the ever-growing interaction between EU law and sport. The Court of Justice holds that the lack of a clear, transparent framework for the prior approval of breakaway constitutes a violation of arts 56, 101 and 102 TFEU, but provides indications about how such practices could be justified. Other aspects of the FIFA-UEFA regulatory ecosystem – for example, the framework for the joint sale of broadcasting rights – are found to be justifiable under EU law. The judgment also provides clarifications about how sport-related considerations can feed into the analysis of the TFEU’s competition and free movement provisions.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1663-1678 | Article | (Table of Contents) I. Introduction. – II. Primary law: migration management and its limits. – III. Secondary legislation: enhanced protection of migrants’ rights. - III.1. Enhancing the rights of migrants – III.2. Promotion of State interests. - IV. Asylum policy: reform failure and circumvention. – IV.1. “Pushbacks” as an extreme form of non-compliance. - IV.2. Continuity of “organised hypocrisy” over time. – V. Conclusion. | (Abstract) EU primary law reaffirms that States have the right to control the entry and stay of non-nationals, but it also entrusts the legislature with deciding, within the confines of human rights, how open or closed the external borders shall be. The ensuing tension between protection and state control is deeply engrained in the history and presence of European migration law. Supranational legislation often establishes a higher level of protection than human rights in the form of individual rights to legal entry or stay; these statutory guarantees considerably curtail the room for manoeuvre of the Member States, albeit on the basis of their “voluntary” consent. At the same time, EU migration law and policy can increase the practical leverage of States by means of inter-state cooperation. These contrasting dynamics coalesce in the contemporary debate about asylum policy. Protective elements exist, but several Member States violate their obligations, notably in the external border control context (“pushbacks”). While such instances of open resistance are unprecedented, they build on a history of half-hearted commitment ever since the signature of the Refugee Convention. EU migration law comprises reasonably generous domestic legislation and contributes to reducing the numbers of arrival at the same time, in particular via cooperation with third states such as Tunisia, Turkey, or Morocco, thus reiterating the simultaneity of “rescuing” and “taming” the nation-state.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1599-1628 | Article | (Table of Contents) I. Introduction. – II. Reform of epidemic surveillance. – III. Limited attention to decisions. – IV. Linguistic dimension. – V. Diversity and incidence of decisions. – VI. Inspiration for comparison. – VII. Substantial classification of decisions. – VIII. Outlining the doctrine of “standardising” decisions. – IX. Identified replacements by regulations. – X. Evaluation of these replacements. – XI. Perspectives andlimits of the tendency. – XII. Envisaged reform of secondary law instruments. – XIII. Conclusions. | (Abstract) The reform of epidemic surveillance in the European Union as a reaction to the Covid-19 pandemic attracts attention to one sporadically discussed phenomenon. Following the usual meaning of this term in legal settings, many decisions address individual cases. Nevertheless, a new category of decisions establishing rules has emerged in the past decades, i.e. “standardising” (“normative”, “norm-setting”, or “general”) decisions. These decisions have addressed the cooperation between the EU and national authorities, funding programmes and assistance to foreign countries. The European Parliament and the Council approved them. Theoretical reflections on these decisions are rare, but their pitfalls are identifiable. Namely, their possible effects on individuals are limited. The definition of unaddressed decisions provided by the Lisbon Treaty did not clarify the situation. Therefore, the recent tendency to replace these decisions with regulations deserves attention.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1645-1661 | Article | (Table of Contents) I. Introduction. – II. Law-making capacity as an expression of sovereignty. – III. The participation of international organizations in the formation of customary international law. – III.1. Overview. – III.2. Whose practice? – III.3. Which norms? – III.4. Conclusion. – IV. The practice of the EU and its relevance in the creation of customary international law. – IV.1. Overview. – IV.2. Legislative practice of the Union. – IV.3. Judicial practice of the CJEU. – IV.4. Positions taken by the Commission in (quasi-)judicial proceedings. – V. Conclusions. | (Abstract) This Article argues that the ability of the European Union to participate in the creation of customary international law curtails the sovereignty of its Member States. First, it shows that authority to participate in norm-creation constitutes a core aspect of sovereignty under international law. Second, it argues that the conduct of the European Union (as an international organization) may be determinative in ascertaining the existence and content of customary norms. However, that authority lacks an explicit basis in the treaties. Third, it asserts that this encompasses norms that are directly relevant for the Member States, potentially in circumstances outside of the scope of EU law. The Article then specifically discusses three types of acts of the Union and their relevance for the creation of customary international law, while providing examples that touch upon traditional inter-states relations. In particular, this concerns the legislative practice of the Union, the judicial practice of the Court of Justice of the European Union (CJEU) and public statements made by the Commission in (quasi-)judicial proceedings.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1555-1574 | Article | (Table of Contents) I. Introduction. – II. Rainbow families’ parental rights in the EU: charting progress through law and politics. – II.1. From courtrooms to Commission: the evolution of LGBTIQ parenthood recognition in EU law. – II.2. Political strategy of the Regulation proposal. – III. Concerns on the efficiency of the EU legislative mechanism. – III.1. The ambiguity of “EU value driven policy”. – III.2. The TFEU as an unexpected obstacle. – III.3. The Regulation proposal at an impasse: which alternatives? – IV. Conclusion. | (Abstract) The EU is known for its commitment to protecting the fundamental rights of same-sex couples as outlined in art. 10 TFEU and the Charter of Fundamental Rights of the EU (Charter) within its value-driven principles. Nevertheless, same-sex couples still face discrimination in forming families. Only 14 out of 27 Member States allow same-sex marriage, seven offer some form of recognition, and the other six offer no recognition at all. To address this issue, the European Commission has proposed a legal instrument which would introduce uniform rules for jurisdiction and applicable law in matters of parenthood, with the goal of ensuring recognition of parental rights for rainbow families across the EU. While the European Court of Human Rights and the Court of Justice of the European Union have made significant efforts to legally protect LGBTIQ individuals, the EU’s ability to act in the face of anti-LGBTIQ legal and social climates is still being questioned. This Article will examine the contents of the Commission’s legislative proposal, its political strategy, and the practical obstacles to its adoption, including legal mechanisms and political situations in certain Member States. The effectiveness, practicability, and sustainability of the proposal will also be evaluated. The goal is to provide a comprehensive analysis of the Commission’s efforts to promote and protect the rights of same-sex couples in the EU.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1629-1643 | Article | (Table of Contents) I. The present meaning of State sovereignty. – II. The sovereignty of EU Member States. – III. Concluding remarks. | (Abstract) The present Article addresses the issue of the sovereignty of EU Member States from the perspective of general international law. In a first part, it tries to define the present meaning of sovereignty in international law. As a guide, three main approaches to sovereignty are used, i.e. an understanding of sovereignty as independence, as Völkerrechtsunmittelbarkeit (direct legal relationship between a State and international law), and as an autonomy of States under the constitution of the international community. In a second part, the Article applies the criteria of these three approaches to the Member States of the EU. It also addresses the question of whether the EU itself can be qualified as sovereign, and the issue of a “shared” or “divided” sovereignty in Europe. By way of conclusion, the third part makes a plea for defending the concept of supranationalism, as established in Europe after World War II, against the idea of State sovereignty.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1539-1554 | European Forum Insight of 4 March 2024 | (Table of Contents) I. Introduction. - II. Cross-Border Telemedicinetext. - III. Clinical Risk. - IV. Product Liability. - IV.1. Conflicts of Jurisdiction. - IV.2. Conflicts of Laws. - V. Health Professional's Liability. - V.1. Conflicts of Jurisdiction. - V.2. Conflicts of Laws. - VI. Conclusions. | (Abstract) Telemedicine raises complex legal issues. The challenging regulatory choices needed to adequately cope with the digital transformation of healthcare become more pronounced when the provision of healthcare services bridges national borders. Recently the EU has undoubtedly presented itself as a particularly active player in harmonising the Member States’ substantive regimes on civil liability. However, harmonisation is still far from complete. Against this background, the general instruments of EU private international law have proved to be relatively fit for accommodating diverse legal orders in the digital age. Yet, their interaction with cross-border eHealth services remains to some extent complex and uncertain, last but not least in the light of the uncertain characterisation of medical liability.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(1), 301-316 | Article | (Table of Contents) I. Introduction. – II. The One Health approach: main conceptual features. – III. The One Health approach in EU policy and legislation – III.1. The One Health approach in EU policies. – III.2. The One Health approach in EU legislation. – IV. The One Health approach in the European Green Deal. – V. Concluding discussion. | (Abstract) The paper investigates how the One Health concept is used in the European Union and what functions are attributed to it in EU laws and policies. To this end we conduct a systematic analysis of EU laws and policy documents, with specific emphasis on the European Green Deal and its actions. The first section outlines the main conceptual features of the evolving One Health approach over time. The second section analyses how European laws and policies have considered One Health over time, showing its erratic use. The third section is dedicated to analysing how One Health is taken into account by the Green Deal’s actions. The conclusion recognises that the EU conceptualization and operationalization of One Health is far from being clear, coherent or concrete. However, we argue that a transition may be underway and One Health has the potential to become a new political and legal principle capable of permeating future EU actions towards a new phase of policy integration and sustainability.

(Series Information) European Papers - A Journal on Law and Integration, 2024 9(1), 17-19 | Highlight | Highlight of 08 April 2024 | (Abstract) The method of the lead candidates is commonly conceived of as an expedient to enhance the political power of the European Parliament vis-à-vis the European Council. On closer inspection, however, this method has deep constitutional underpinnings and can contribute to determine the material constitution of the European Union. After the next round of the European elections, which will likely produce a robust rise of the sovereigntist movements, this method could prove to be an essential tool to establish a connective thread among the European institutions and to enhance their legitimacy.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(1), 67-76 | European Forum Insight of 24 May 2023 | (Table of Contents) I. Einleitung zum Sonderheft „Die deutschsprachige Europarechtswissenschaft und ihre Rolle in Europa“. - I.1. In Vielheit geeint. - I.2. Die deutschsprachige Europarechtswissenschaft. - I.3. Europa-)Rechtswissenschaft als Sprachwissenschaft. - I.4. Gelingensbedingungen für eine gemeinsame – d.h. europaweite – Europarechtswissenschaft. - II. Die Beiträge zum ersten deutschsprachigen Sonderheft (special focus) von EP. - III. Zukunftsaussicht: Veröffentlichen von deutschsprachigen Insights, Highlights und Abhandlungen in der multilingualen open access Fachzeitschrift European Papers. - III.1. Die Vision von European Papers. - III.2. Zukünftige auch deutschsprachige Beiträge zum Europäischen Forum bei European Papers. | (Abstract) For the first time, a German language Special Focus is to be published in the European Forum of European Papers. One of the key questions in EU law is what it means to be part of a scientific community whose object of study are legal norms existing in a multiplicity of languages and legal cultures. As the European Forum starts to accept German language manuscripts next to English, French, Italian and Spanish texts, the authors of the present Special Focus inquire in various ways into the role, structure and issues of the German-speaking community of EU law scholars. After a short introduction, the various papers are briefly presented, followed by an exposition of European Papers’ mission and some details about how to submit manuscripts, all of it in German, as a welcoming message for hopefully many future German language submissions to the journal.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(1), 99-115 | European Forum Insight of 24 May 2023 | (Abstract) The paper addresses the question whether there exists a specific “Austrian” community of EU law scholars. This forms part of the broader question whether there exists a peculiar German or German-speaking community of EU law scholars (to which the current issue is devoted). To this end, the paper examines three fields – the impact of the legal positivist tradition in the Kelsenian style on EU law re-search in Austria, the constitutional framework for the Austrian participation in the EU as well as empir-ical factors specific to Austrian EU law academia and practice – and concludes that one may well make a case for the existence of a genuinely “Austrian” community of EU law scholars.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(1), 25-42 | European Forum Insight of 19 April 2023 | (Series Information) European Papers (News of dd month yyyy) | (Table of Contents) I. Introduction. - II. How did we get here? - III. What is the General Court supposed to get? - IV. When is a matter specific and exclusive? - V. When should the General Court refer the matter back to the Court of Justice? - VI. Which way, national courts? - VII. Conclusion. | (Abstract) The end of 2022 saw the publication of the proposal for reform of the preliminary ruling procedure, drafted by the Court of Justice of the EU. If the proposal goes through, it will bring about one of the most significant changes in the EU judicial system in its seventy years’ history. In this Insight, I start with an overview of the background to this reform proposal in order to provide the relevant context, before turning to its content. The focus is on specific areas of EU law in which the General Court would acquire jurisdiction in the preliminary ruling procedure. Then I discuss some downsides of the proposed distribution of powers between the Court of Justice and the General Court and suggest certain adjustments to the practice of the two courts to make the reformed preliminary ruling mechanism respond better to its objectives. Before concluding, I also reflect on the possible impact of the reform on the most numerous members of the EU judicial system – national courts.

(Series Information) European Papers - A Journal on Law and Integration, 2024 8(3), 1523-1537 | European Forum Insight of 16 February 2024 | (Table of Contents) I. Introduction. - II. Hobbes: power and peace. - II.1. One, two … many sovereigns? - II.2. International relations, the Hobbesian way. - II.3. Lessons for the EU. - III. Immanuel Kant and international relations. - III.1. Human nature and the state. - III. 2. Striving towards perpetual peace? - III.3. Striving towards perpetual peace? - IV. Machiavelli and the arts of diplomacy. - IV.1. A Pragmatic Ruler. - IV.2. Inaction or military action in international conflict? - IV.3. Crafting diplomatic solutions. - V. Conclusion. | (Abstract) This Insight examines the stance the EU should adopt towards the Russian invasion of Ukraine on the basis of the political thought of Immanuel Kant, Thomas Hobbes, and Niccolò Machiavelli. Taking as its starting point Josep Borrell’s comment that “we are too much Kantians and not enough Hobbesians” at the 2022 EU Ambassadors’ Conference, this Insight offers a revisionist interpretation of both Kant and Hobbes while suggesting Machiavelli as a third possible inspiration for EU external action. Although he is often portrayed as a proto-“realist” intent on increasing state power, Hobbes in reality favours stability above all else and would therefore presumably not support a more “aggressive” foreign policy. Kant, on the other hand, has traditionally been seen as more of a philosophical idealist, but his political philosophy in fact supports a more assertive conduct by states in their external relations. Both of these philosophers are thus quite different from how Borrell portrays them. The Insight also introduces the perspective of a third thinker, Machiavelli, whose philosophy suggests that the EU should adopt a pragmatic diplomatic strategy, forging alliances, supplying Ukraine with weapons, and maintaining strong ties with allies.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1513-1522 | European Forum Insight of 16 February 2024 | (Table of Contents) I. Introduction. - II. Who are the oligarchs in third countries? - II.1. Targeting leading businesspersons: the precedent of Syria. - II.2. Targeting Russian businesspersons: emerging trends. - III. Losing the status of Russian oligarch: any possibility to be de-listed? - IV. Conclusions. | (Abstract) This Insight examines the developments in the EU restrictive measures against Russia in the aftermath of the full-scale aggression in Ukraine, focusing on the novel "(g) criterion" designed to target Russian businesspersons (often referred to as Russian oligarchs). The analysis illustrates the recent litigation before the General Court, in which targeted individuals seek to annul their designations. It highlights that, compared to previous sanctions practice, the new criterion adopts an innovative sector-based approach, establishing a new link between businesspersons operating in certain economic sectors and vital source of revenue for the Russian government. The Insight further explores the Court's cautious stance on de-listing Russian businesspersons, emphasizing the prudent assessment of evidence and circumvention attempts. Finally, the Insight points to the broad implications of the "(g) criterion" and suggests that the Council holds considerable political discretion in exerting maximum pressure on Rus-sia's business elite, with the ultimate objective of reducing the Kremlin's ability to finance its war.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1301-1315 | Article | (Table of Contents) I. Introduction. – II. Actants. – III. The absence of brute facts. – IV. Valency. – V. Law as proliferation of power. – VI. Increasing adjudicative power. – VII. Increasing regulatory power. – VIII. Conclusion: the importance of inclusion and empowerment. | (Abstract) Two assumptions dominate and frustrate the debate concerning the emergence and rapid expansion of the European legal order and its relation to national legal systems. The first is that the will and consent of sovereign powers should be seen as a (social) fact that is logically and practically unable to give rise to (legal) norms. The second is that legal orders are distinct systems demarcated by separate sets of criteria of validity. In this Article both assumptions are criticised. Facts are not mere facts. And legal orders are not “autonomous” buildings erected on separate foundations. In order to account for the ways in which the European order overlaps with international and domestic law normative orders a legal order may be more adequately pictured as a web. In such a web, rules are the threads that bind together things, persons and institutions. It is hypothesised that the density of such webs as well as their capacity to connect to other webs determine their weight and relevance as reasons for action and decision-making. This hypothesis is tested in the capacity of European adjudication and regulation to connect to and to include national actors and institutions.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1495-1511 | Article | (Table of Contents) I. Introduction. – II. The identity of the EU and European values. – III. A constitutional moment: becoming a member of the EU. – IV. The principle of autonomy and the wider world. – V. Concluding remarks. | (Abstract) This epilogue rejects the idea that the principle of autonomy is an end in itself or a tool for judicial self-empowerment. On the contrary, we support the contention that that principle serves first and foremost as a means of promoting and protecting the values on which the EU is founded. In so doing, that principle also contributes to defining the identity of the EU as a common legal order. Compliance with those values does not mean that the Member States must adopt a specific constitutional model. Instead, those values limit themselves to providing a framework of reference within which the Member States may make their own constitutional choices. Finally, it is submitted that in times when authoritarian tendencies are on the rise, the principle of autonomy allows the EU to operate as a beacon of freedom, democracy and justice for the wider world.

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

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

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

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1441-1464 | Article | (Table of Contents) I. Introduction – II. Cultural analysis, metaphor and the imageries of project and system – III. Autonomy and project and system in EU law – III.1. The EU legal order as the ECJ's project to create a system – III.2. The EU legal order as construction and body – III.3. Autonomy as the immanent principle of EU legal order – IV. The autonomy of EU legal order and the tension between project and system – IV.1. Autonomy and the presumed compatibility of telos, ethos and system – IV.2. The incompatibility of autonomy as project and system – V. Conclusion | (Abstract) This Article examines the understanding of EU legal order that underpins the concept of the autonomy of EU legal order. Building on the work of the American constitutional scholar Paul Kahn, this Article argues that the EU legal order can be understood as either project or system. From the perspective of project, the autonomy of EU legal order is the necessary means to realise the values and objectives the EU pursues, but from the perspective of system, the autonomy of EU legal order is an end in itself. By making this tension explicit, this Article hopes to cast doubt on the claim that autonomy operates in complete harmony with the telos the EU pursues and the ethos on which it is founded. Autonomy will only express a telos or ethos if these align with the preservation of the systemic integrity of the EU legal order. There thus exist no necessary relationship between the autonomy of the EU legal order and the objectives and values it pursues, but only a contingent one.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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