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In two decisions of 2019, the Dutch courts have come up with novel interpretations of the ‘control-based’ standard of attribution in the international law of State responsibility. This is a standard of attribution that is laid down in Article 8 of the International Law Commission‘s (ILC) Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA), which is, by and large, reflective of customary international law. The traditional understanding of Article 8 ARSIWA is that it applies to relations between States and private persons or entities, in particular armed groups: conduct of a non-State armed group is attributed to a State to the extent that the State exercises control over that group. However, the Dutch courts have extended the scope of application of Article 8 ARSIWA to conduct of organs of international organisations (the UN) as well as foreign States ('i.e.', States other than the Netherlands). Internationally speaking, this is a novel interpretation of Article 8 ARSIWA, for which there are no precedents. After introducing the Dutch courts’ reasoning in these cases, the contribution zooms out and inquires what the Dutch evolutions imply for the development of the controlbased attribution standard in the international law of State responsibility. The author argues that the relatively peculiar interpretation of Article 8 ARSIWA, as applying to interactions between States and international organisations and between States inter se, is practically viable in a narrow range of scenarios characterised by relatively strong politico-military relations and hierarchies.

In a resolution adopted on 1 February 2018, the European Committee of the Regions noted that a legislative proposal of the European Commission concerning a Regulation that changes the rules governing the EU regional funds for 2014-2020 did not comply with the principle of subsidiarity. Accordingly, the Committee considered challenging the legislative proposal before the Court of Justice if the proposal was formally agreed upon. Although at a later stage the European Commission decided to take into account the Committee’s argument and amended the proposal accordingly, such a context offers the chance to investigate more in detail the role of the Committee of the Regions in the legislative process of the EU and, more in particular, its role as a watchdog of the principle of subsidiarity. This paper aims to shed light on a rather neglected aspect of the EU constitutional practice, such as the potential of the Committee of the Regions to contribute to the legislative process, and answer the question of whether this Committee is the right body to guarantee compliance with the principle of subsidiarity.

Exclusionary innovation poses a bigger threat to competition in digital platform markets than in other innovation markets given the relevance of data-driven network effects as well as the strong incentive and ability of digital platforms to pursue an envelopment strategy. This paper advocates a theory of harm called “platform-wide exclusionary innovation” which applies to conduct that plausibly creates short-term consumer benefit but is more likely to foreclose rivals and therefore reduce technological progress in the long run. This theory of harm can help to explain Google’s conduct that the European Commission condemned in its three decisions against Google between 2017 and 2019. Due to interconnections between Google’s practices in the three cases this article assesses whether they may be considered jointly for the purpose of finding of an infringement of Article 102 TFEU or under the proposed Digital Markets Act.

National sovereignty has been the key consideration for basing judicial cooperation in the European Union on mutual recognition. More than one decade after the creation of the Area of Freedom Security and Justice (AFSJ), this contribution assesses whether mutual recognition-based EU legislation in civil and criminal law indeed respects national sovereignty. To this end, it studies the Framework decision on the European Arrest Warrant (EAW), the EU’s flagship instrument in the AFSJ. We distinguish two elements of national sovereignty: (a) the protection of the State and its basic structures (its statehood); (b) the State’s values, principles and fundamental rights (its statehood principles), and assess the EAW from a dynamic perspective: from its initial inception, in which mutual trust primarily implied little interferences with the laws and practices of issuing states, to the current state of affairs which is marked by what could be called a ‘mutual trust supported by harmonization’- approach. Especially in the judge-driven harmonization of the EAW and the dialogue between judicial authorities we witness important (and oftentimes overlooked) elements that impact national sovereignty. At the end, the findings of the article are put in the context of the current rule of law crisis in the EU.

Since the establishment of the Schengen area, border management has been having momentum within the European Union (EU) and, one of its major building blocks is the common policy on visas. This allows to control who can have access to the Schengen area for short stays that do not exceed three months over any six-month period. This article investigates how the EU visa policy has been influenced by the ever-evolving migratory dynamics towards the EU. Focusing on the latest reform of the Common Code on Visa, which has entered into force in 2020, this article argues that the new approach to conditionality in EU migration law has consolidated the intertwining between the EU visa policy and cooperation on readmission. Over the years, the latter has constituted an incentive for the EU in order to offer visa facilitation regimes or specific visa waivers to nationals of third countries. However, this article criticizes the new mechanism, introduced by the recent reform, and providing the European Commission with the mandate to propose specific restrictive measures related to visa processing and visa fee in case of a lack of cooperation especially on readmission. In an attempt to shed light on the legal concerns raised by this mechanism, the paper concludes that it even emphasises the discriminatory effects of the EU visa policy and, more generally, it impacts on the cooperation with third countries within the EU General Approach to Migration and Mobility.

On the 70th anniversary of the UN Refugee Convention, this article examines the concept of solidarity and explains its relevance today, through the lens of the Global Compact on Refugees (GCR). While stressing the potential as well as the challenges for thorough implementation of the solidarity mechanisms established by the GCR, the article argues that regional organizations may contribute to meeting the GCR objectives. This is particularly urgent for regions that are most affected by migratory flows. In proposing new ways of approaching the concept of solidarity, the article suggests that the African Union strengthen mechanisms other than the physical sharing of refugees, including pooling resources to support states experiencing large influxes of refugees. In addition to a system of financial support for refugee protection, the article also recommends that the European Union ensures safe channels for arrivals and a more robust resettlement programme, to help realize the GCR objectives.

Right in the middle of the Covid-19 pandemic, the German federal constitutional court (Bundesverfassungsgericht – FCC) issued a ruling that sent massive shockwaves through the continent. Not only did the Court question the legality of the European Central Bank’s bond buying program PSPP (Public Sector Purchase Program), but it also rejected the earlier decision by the CJEU in which this latter had found that program to respect EU law. The ruling is as such not directly concerned with Covid-19 measures, but it may have nonetheless important consequences thereon. In this contribution we will explore what those consequences may be. Apart from the direct effects on the ECB’s pandemic emergency purchase programme (PEPP), we zoom in on the ruling’s indirect consequences on the broader question of how to arrange solidarity in EMU. With regard to the latter, we contend that Weiss and the Covid-19 crises combined will test the basic models of solidarity the EMU relies upon: the models of individual fiscal responsibility, ECB based solidarity and the model of fiscal union. These models are assessed from economic, constitutional and democratic perspectives. © 2021. The Author(s). This is an open-access article distributed under the terms of the Creative Commons Attribution 4.0 International License (CC-BY 4.0), which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited. See http://creativecommons.org/licenses/by/4.0/.

The deterritorialization of the Internet and international communications technology has given rise to acute jurisdictional questions regarding who may regulate online activities. In the absence of a global regulator, states act unilaterally, applying their own laws to transborder activities. The EU's “extraterritorial” application of its data protection legislation—initially the Data Protection Directive (DPD) and, since 2018, the General Data Protection Regulation (GDPR)—is a case in point. The GDPR applies to “the processing of personal data of data subjects who are in the Union by a controller or processor not established in the Union, where the processing activities are related to: (a) the offering of goods or services . . . to such data subjects in the Union; or (b) the monitoring of their behaviour . . . within the Union.” It also conditions data transfers outside the EU on third states having adequate (meaning essentially equivalent) data protection standards. This essay outlines forms of extraterritoriality evident in EU data protection law, which could be legitimized by certain fundamental rights obligations. It then looks at how the EU balances data protection with third states’ countervailing interests. This approach can involve burdens not only for third states or corporations, but also for the EU political branches themselves. EU law viewed through the lens of public international law shows how local regulation is going global, despite its goal of protecting only EU data subjects.

This article provides an analysis of the Dutch Supreme Court judgment in the Mothers of Srebrenica case, placing it in its context, and comparing it with earlier and related decisions, in particular the judgments in the cases of Nuhanović and Mustafić. The Mothers of Srebrenica is a foundation established to represent the interests of the approximately 6000 surviving relatives of the victims of the fall of Srebrenica during the conflict in the former Yugoslavia (1995). The foundation holds the Netherlands responsible for not having done enough to protect the victims of the Srebrenica genocide. This contribution addresses the attribution of the conduct of the United Nations peacekeeping contingent to the troop-contributing State (the Netherlands), followed by the wrongfulness of the peacekeepers’ conduct and the State’s attendant liability for damages suffered by the victims. It is argued that the Dutch State’s international responsibility was only engaged because of the exceptional circumstances present in Srebrenica at the time. In the ordinary course of events, the liability of troop-contributing States is unlikely to be engaged if the Supreme Court’s review standard were to be applied.

The article aims at analysing activities of the European Commission and the national competition authorities of the Member States of the European Union in response to the Covid-19 outbreak. This analysis is carried out in the light of the objectives of EU competition law. The specific research question of this article is whether the competition law framework is sufficiently resilient to the current COVID-19 crisis and allows for the inclusion of public or non-economic interests, particularly with regard to the application of Article 101 of the Treaty of the Functioning of the European Union. With a view to answering this question, the temporary framework that has been adopted because of the pandemic will be assessed in the light of the framework for the application of Article 101 TFEU. Then the actions of competition authorities undertaken EU-wide will be analysed against the background of the current debate on the goals of EU competition law.

The Common European Asylum System (CEAS) has been in a situation of protracted crisis. This has hampered its process of reform and has urged the European Commission to launch a new Pact on Migration and Asylum, in order to offer a ‘fresh start’ to ‘build a system that manages and normalises migration for the long term.’ While an emergency-driven approach has surfaced as a mandatory route for the future of the CEAS, what does constitute a situation of emergency in EU asylum law? In an attempt to unpack the evolution and understanding of the concept of ‘emergency’ in EU asylum law, the paper argues that the parameters to determine the existence of a situation of emergency have been politically controversial and purposefully left open-ended. This has consequences at the level of EU legislative responses. In particular, the paper will illustrate the potential and limits of the EU emergency legislation in the field of asylum and aims to explain how this legislation impacts both the ordinary legislation at the regulatory level as well as the legislative autonomy of the Member States in situations of emergency. Ultimately, the paper discusses whether the recently proposed legislative instruments, which are designed to address situations of crisis in the field of asylum, are well suited for this role.

The contribution aims at demonstrating that the traditional divide between public and private international law, whereby the former only regulates State conduct, while the latter is meant to take care of the interests of private parties (both natural and legal persons) is as old-fashioned as it is unsatisfactory. Every exercise of jurisdiction on the part of national judges, be it in the domain of public international law issues or in the realm of dispute settlement involving private parties, is always a symptom of State jurisdiction. Hence, it is regulated under the rules and principles of public international law. Even the exercise of jurisdiction in civil matters, accordingly, may be subject to public international law constraints, as the concerns surrounding transnational tort litigation involving corporations suggest and as the ECtHR seems to have clarified in the Naït-Liman jurisprudence, by requiring that the resort to the forum necessitatis jurisdiction be required or permitted either by customary international law or by international treaties.

This article contends that the presumption of mutual trust between the European Union Member States is a legal fiction. In the context of transfer of a custodial sentence from one country to another based on mutual recognition and mutual trust, a failure of the latter can have detrimental effects on judicial cooperation and, especially, on the functions of punishment. In particular, mutual recognition and mutual trust create a bridge between the external limits of punishment (fundamental rights) and the internal limits to the functions of punishment (retribution, deterrence and rehabilitation). The non-compliance with individuals’ fundamental rights undermines the very social functions of punishment. Such a failure can only be prevented if the Member States and the European Union endeavour to establish and maintain a truly integrated penal policy with concerns for individuals at its very core.

In the Google Shopping judgment, the General Court refers to Google’s super-dominance and with it its stronger obligation not to allow its behaviour to impair effective competition. The concept of super-dominance suggests that certain conduct could breach Article 102 TFEU only when adopted by super-dominant undertakings, but it remains uncertain how exactly it contributes to finding an abuse. The aim of this paper is to analyze the Google Shopping judgment in relation to the concept of super-dominance. We explore how the concept has evolved in the case-law and what role it has played when establishing an abuse of dominance and analyze whether reliance on super-dominance in the case law is consistent with the effects-based approach. Finally, we examine how Google Shopping fits with the evolution of super-dominance in the case law and the effects-based approach and what it means for the regulation of digital gatekeepers going forward.

The EU has become increasingly involved in enforcing European Union (EU) law, including directly vis-à-vis private actors. (Multilevel implementation) research has so far neglected the question of what role it is necessary for the EU to play in this direct enforcement of EU law in order to promote the implementation of EU policies. Given the purpose of this collection of works to discuss innovative approaches in multilevel implementation, this contribution unravels three of the EU’s direct enforcement strategies. It provides original data in relation to proliferating EU entities with direct enforcement powers and to EU enforcement networks, as well as discussing the EU’s growing influence over national direct enforcement via EU hard, soft and case law. It outlines the problem-solving potential of such enforcement strategies and signals the challenges that they bring along. The aim is to urge and facilitate further research on the EU’s (direct) enforcement strategies, their legitimacy, effectiveness and operation.

National parliaments (NPs) had long been excluded from the European integration process and were in many Member States at best kept informed and rarely involved in daily EU affairs. With the Lisbon Treaty and its introduction of the Early Warning System (EWS), as well as the Political Dialogue initiated by former Commission President Barroso, NPs have now become full actors in the EU. Through the Political Dialogue, they can express their opinion on the Commission Annual Work Programme and influence the Commission's agenda. Now, through control of the respect of the principle of subsidiarity, and provided that their reasoned opinions attain the defined thresholds, they can potentially strike down an existing proposal. However the EWS leads to NPs still being constrained to a limited, reactive role: as ‘quasi veto-players' and not one of ‘agenda-setter’. Recent developments in favour of the introduction of a ‘green card’ would change this situation profoundly as NPs would eventually be able to prompt the Commission to make legislative proposals on their behalf. This article sheds light on the evolving role of NPs in EU policymaking from the Lisbon Treaty onwards, from veto players to proactive institutions committed to the good functioning of the EU.

Key PointsIncreasing multinational cooperation between intelligence and security services, including the establishment of a joint database on (alleged) jihadists, raises legal concerns over the protection of personal data, in particular with respect to the allocation of responsibility among participating states, the geographic scope of fundamental data protection norms, and the applicable law.It is argued that states participating in multinational cooperative efforts may share responsibility, eg in relation to a shared database. However, for reasons of proximity, the host state of the server has heightened duties of care.It is also argued that where a participating state, in particular the host state, exercises virtual control (jurisdiction) over an individual person’s data, such a state has data protection obligations towards that person, regardless of the latter’s location.Participating states, and again in particular the host state, are under an obligation to put in place adequate control systems, including with a view to preventing the transfer of data that have been gathered by states in breach of data protection guarantees.If systemic failures in the multilateral system are identified, states are barred from transferring data to the system, unless they can obtain credible guarantees that data will be adequately protected.General principles of data protection law, derived from case law as well as general or sector-specific regulations, govern the processing and transfer of data in the context of multinational intelligence cooperation, including the management of a joint database. There is no reason not to apply them in the context of national security.

This chapter explores the exercise of jurisdiction in the common interest. Drawing on realism and actual practice, it is posited that the exercise of jurisdiction in the common interest is unlikely unless the state has a nexus to the situation subject to regulation. The presence of a nexus may in fact serve to allocate jurisdictional authority and responsibility and encourage action in the common interest. In practice, cosmopolitan jurisdiction is hardly exercised. Scarce resources, fear of retaliation or reciprocity, and lack of local interest in global issues may cause states to forego assertions of cosmopolitan jurisdiction, unless a ‘national interest’ can be identified. The chapter then considers the actual practice of universal criminal jurisdiction.

The first judgement of the General Court (EU) pertaining to the Single Supervision Mechanism (SSM) raised an issue concerning the source of the shared supervisory powers in the system of EU prudential supervision. In the General Court’s view, the SSM Regulation conferred on the European Central Bank (ECB) exclusive powers to carry out specific prudential supervisory tasks vis-à-vis all euro area credit institutions (significant and less significant). At the same time, the ECB’s national counterparts assist the former in implementing its supervisory tasks vis-à-vis less significant credit institutions. We argue that such a scheme requires a clear accountability relationship also between the ECB and the national competent authorities (NCAs), something that is not fully fledged in the current legal framework.

The aim of this article is to better understand the conditions outlined in the 'CILFIT' judgment and their role in creating a meaningful dialogue about European Union law. For these purposes two distinct views on the relation between language and meaning are utilised, as has been argued for by Ludwig Wittgenstein in his 'Philosophical Investigations'. In the 'CILFIT' judgment both of these views surface, which imply different challenges to the participants of the EU dialogue. In the conclusion, we suggest how these challenges can be met in order to facilitate a mutually meaningful dialogue about EU law.

The term ‘passing-on’ in the framework of private enforcement of European competition law has been a point of discussion for a considerable period of time now. The debate has elevated to its peak following the judgments of the Court of Justice of the European Union (hereinafter CJEU, Court of Justice or the Court) in case Courage and later Manfredi.1 In those milestone cases the Court supported the idea that any individual who suffers harm as a result of competition law infringement ought to be able to claim damages. As a result of this jurisprudential development, it soon became clear that the EU legislator will have to catch up with the idea of strengthening the position of individuals in private enforcement proceedings.

The EU institutions and agencies have become increasingly involved in enforcing EU law directly vis-à-vis private actors. A number of such EU entities have also acquired the so-called emergency powers, which allow interference with the legal position of a private party. Given the lack of research in this area, the question that this article addresses is whether relevant safeguards have been introduced to ensure the rule of law in such situations to prevent the abuse of executive discretion by public authorities. What are the relevant safeguards in the emergency in the EU in the first place? Having analysed relevant EU legislation and case law, the article offers a complete overview of all the existing EU entities with the emergency powers and shows a great diversity in the extent to which the EU legislator has regulated procedural safeguards in relevant law. The article discusses what safeguards need to be ensured in an emergency and argues for clarity of legislative frameworks in this respect.

Abstract: This article discusses the role of human rights as general principles of law guiding judicial decision-making. After an introduction into the dialectics of legality versus legitimacy, it focuses on the Courts' need for public-political constituency that carries their judgments. It is in that context that the old regulae iuris have always played their part. Based on the overriding principle of universal human dignity human rights are conceived as modern rules of justice throwing light upon concrete cases. Although in terms of sheer legality their impact is rather trivial, a focus on legitimacy evidently enhances their impact. This is illustrated in regard to human rights in private law. In conclusion, a shift in emphasis from quasi-legal international procedures in semi-judicial UN Charter and Treaty bodies lacking any power to enforce their 'resolutions' and 'concluding observations', to human rights as general principles guiding judicial decision-making appears to be worth consideration.

This article discusses the limits on mutual trust in the context of transfer of sentenced persons following the CJEU’s Aranyosi and Căldăraru judgment. It summarizes the main findings of a recent legal and empirical analysis of mutual recognition cases conducted in five EU Member States: Italy, the Netherlands, Sweden, Romania, and Poland. The research conducted contends that the presumption of mutual trust existing between the EU Member States is a legal fiction. In the context of transfer of a custodial sentence from one country to another based on mutual recognition and mutual trust, failure of the latter can have very negative effects on judicial cooperation and, consequently, on the fight against crime. Non-compliance with individuals’ fundamental rights can undermine the very essence of judicial cooperation and, with it, the European project. Such failure can only be prevented if the EU endeavours to establish and maintain a truly integrated penal policy − with concern for individuals at its very core − and if the Member States accept and abide by the common European values.

The EU judgment in Dano deals with the role of special non-contributory benefits and the question whether claiming this can be rejected

The delegation of powers to EU agencies has been a matter for debate for a long time since no treaty provision has even governed this issue specifically, nor has the Court applied the restrictive Meroni standard of delegating executive and not discretionary powers directly to agencies. In light of the new ESMA-short selling judgment and its implications, this article discusses the issues of the nature and scope of powers that EU agencies can be given. It argues that upon the Meroni-Romano remnants, the new judgment erects a new delegation doctrine in the EU: EU agencies can be given powers to take legally-binding decisions of general application. These powers may entail discretion, which should be limited. This article concludes by highlighting a number of questions that remain unresolved. It argues for the necessity of a (treaty-based) legal framework because empowering EU agencies is an act of conferral, rather than delegation, and discretion given to agencies may be at times of a legislative (normative) nature. © 2014 Kluwer Law International BV, The Netherlands.

The democratic input legitimacy of independent regulatory agencies (IRAs) is often questioned. Their independence creates distance from the main executive bodies, who therefore do not necessarily bear responsibility for them. This in turn may negatively affect the responsiveness of the ‘unelected’ bodies to the electorate’s preferences and hence the acceptance of the authority of IRAs by the public. This article questions whether the democratic input legitimacy of IRAs should be problematic by definition. It examines the essence of the conventional way of ensuring input legitimacy, i.e. elections, and identifies the elements that create a reference level for assessment of input legitimacy, namely authorization, safeguards and accountability. It argues that if the input relationship between the public and IRAs is well organized with respect to these three elements, the input legitimacy of IRAs need not be problematic, even if IRAs are headed by the ‘unelected’. Furthermore, it distinguishes two dimensions of the democratic input legitimacy problem of IRAs: democratic legitimacy of IRAs as public institutions and of IRAs’ operation, and it applies the assessment formula to IRAs in the US and the EU in relation to both dimensions. Distinguishing two dimensions of the input legitimacy issue of IRAs makes it more feasible to determine the exact location of potential problems, which is essential to find appropriate solutions.

Embassy bank accounts are among the properties of states most widely present in foreign states. Accordingly, they constitute an ideal target for attachment by creditors. International instruments have largely upheld state immunity from execution regarding bank accounts, however. Likewise, state practice largely – and apparently increasingly – supports state immunity from measures of attachment, by applying a presumption that funds in embassy bank accounts are used for governmental non-commercial purposes. This approach is overly deferential to the state. Instead, it is argued that domestic courts should require that the state, at least partially, discharge the burden of proof regarding the nature (commercial/sovereign) of the funds in the bank account. A failure to discharge this burden should result in a rejection of immunity. Only such an approach adequately balances the interests of states and creditors, and does sufficient justice to the creditor's right of access to a court. In addition, it is argued that such a balance is also brought about by construing literally general waivers of immunity from attachment, as not requiring an additional specific waiver regarding embassy bank accounts.

The European Court of Human Rights and the Court of Justice of the EU have both developed their own approach to discrimination on the ground of nationality. The context of both approaches is very different and therefore it is not surprising that they diverge considerably. Because of the expected adherence of the EU to the ECHR it is important to analyse these divergences. This contribution describes the case law of both courts in detail, and pays attention to the differences in approach between EU nationals and third-country nationals. It also analyses the differences in approach in respect of direct and indirect discrimination. Finally, the contribution summarises the areas where differences in approach are most likely to appear.

In this article the variation in regulatory and enforcement regimes, strategies and styles that have developed in European countries with a view to tackling the problem of the underrepresentation of women on company boards and to bring about actual change will be charted. By providing a comparative analysis it seeks to offer insights into the following issues: how do public and private regulators and regulation interact with each other to solve this problem; what self- and co-regulation/enforcement regimes can one identify and what hard law approaches; what are relevant factors or principles determining the chosen strategy and types of instruments; are hard quota law approaches more effective than soft(er) public or private approaches; more generally, what are important conditions or elements for ensuring that the chosen instruments will be effective in the light of the goal to be achieved? The article concludes with some lessons that can be drawn from the analysis when it comes to ensuring the effectiveness of regulatory and enforcement approaches in this area, also for policymakers, and as to what might be a possible optimal mix.

This article analyses the blossoming of the initiatives for inter-parliamentary cooperation currently observable in the European Union from a democratic legitimacy perspective. It shows that there exists numerous forms and settings for the cooperation among national parliaments (NPs) and with the European Parliament (EP) outside of the best-known and formalized inter-parliamentary conferences (Speakers’ Conference, Conference of Parliamentary Committees for Union Affairs of Parliaments of the European Union (COSAC), Common Foreign and Security Policy/Common Security and Defense Policy (CSDP) Conference and Article 13 Conference). There is, indeed, a rapidly growing number of formal and informal forums in which not necessarily all Member States parliaments, or the EP, are invited to participate. It is argued on this basis that while an increased participation of NPs especially to the European integration process can be positive and contribute to bringing ‘Brussels’ closer to the citizens, this evolution is not free of risk. If the number of inter-parliamentary initiatives continues to grow without order or control, their representativeness, legitimacy and in fine their impact is likely to become insignificant. Therefore, a re-recentralization and a strong reinforcement of their visibility and their clarity for the public in general are in order so that the benefits of such an increased parliamentary participation can be preserved.

The European Securities and Markets Authority (ESMA) has received considerable academic attention for its newly acquired regulatory powers and the issues of legitimacy and controls concerning its far-reaching powers. ESMA's supervisory tasks are not less impressive but they are underinvestigated. In light of the recent English judgment on the exercise of ESMA's inspection powers in the UK, this article focuses on the question of judicial control over inspection power of ESMA. It shows that judicial control has been established in principle. However, the existing legal framework based on different national procedures allows ESMA escaping judicial control by chance or on purpose. This article argues for the necessity of addressing the identified controlling gap by, for instance, eliminating the differences or conditioning inspection-related discretion and promoting judicial cooperation. Since EU and national enforcement powers have become increasingly shared, the system of control cannot remain completely separated, as it is the case today. How the EU supervisor is to be controlled should not be up to the EU supervisor to choose.

This article shows that between the drafting of the Universal Declaration of Human Rights in 1948 and the Tehran conference in 1968, international human rights law and international humanitarian law and their respective guardian institutions, the United Nations (UN) and the International Committee of the Red Cross (ICRC), were not so conceptually far apart as is sometimes suggested. Its purpose is to give further legitimacy to the role of human rights law in armed conflict and show that cooperation between the UN and the ICRC has a long history.

This article highlights the development of the legal (de jure) independence requirements of national and European supervisory authorities in European law. The European legislator recently strengthened the legal and political independence of national supervisors in the telecommunications and energy sectors. Moreover, European supervisors in the telecommunications, energy and financial sectors have been created. The national supervisors are represented in these new European bodies through their participation in the European supervisors' regulatory boards. The independence principle is one of the legal safeguards to prevent independence problems at the national level being transferred to the European level or vice versa, and has been laid down as a cornerstone of the regulations establishing the new European supervisors. These developments illustrate that the independence of supervisors has gained importance in European law. However, the specification of the independence principle has taken place in an ad hoc and piecemeal way and the different European provisions leave room for controversies. Therefore, it is too early to argue that the principle of the independence of European and national supervisors has acquired the status of a general principle of European law. Instead this article provides some suggestions as to how the European independence requirements could be interpreted in the light of recent case law of the European Court of Justice reconciling a sufficient degree of independence on the one hand with the need for adequate provisions for transparency and political and legal accountability on the other hand.

As the result of the case law of the Court of Justice of the European Union on EU citizenship provisions, even citizens who are not economically active have access to social benefits in a country other than that of origin. Is it justified to connect such effects to EU citizenship, even though EU citizenship does not yet have an identity of its own? In this contribution the case law is analysed and it is argued that because of the objective justification that Member States can still offer for limiting access to their systems, more precisely by the link they may require between the claimant and their community, the case law fits well in the system for achieving the free movement of persons. This 'link approach' is a better explanation for the consistency of the case law than an explanation based on cross-border solidarity or a special identity relating to EU citizenship.

Over the past two decades, the Member States have seen many different market regulators being set up under the influence of European law. Market liberalization has resulted in regulatory authorities being created for the purposes of monitoring the liberalization process and promoting competition. These play a key role in implementing and enforcing European rules. Although the work of these national regulatory authorities is based on the principles of institutional and procedural autonomy, European law has a major impact on their activities and how they operate. This 'Europeanization' is multifaceted and does not always manifest itself in the same way in the various regulatory authorities. In addition to the influence of European law at a national level (level 1), various European networks of national regulators (level 2) have also been set up over the years, and these are playing a role in the further harmonization, implementation, and enforcement of European law. A recent development has been the establishment of European regulatory authorities (level 3) alongside the national regulatory authorities and to which are being assigned European powers. These three different levels make the European regulatory landscape highly complex. An institutional structure for coordination has been created, as a result of which a mixed administration, with national and European elements, is now in operation. This article analyses this three-layered legal order in the area of market supervision.

Abstract This article examines the current and prospective roles of the Arctic Council System (ACS) within the context of the (international) law of the sea. Its first part focuses on the role of regional cooperation under the law of sea, with special attention to the way in which the pacta tertiis principle has shaped some regional regimes. The second part examines current features of the Arctic Council, including its mandate and main approaches, participation and institutional structure. The new concept of the ACS is offered to clarify the connection between the Arctic Council and the 2011 Agreement on Cooperation in Aeronautical and Maritime Search and Rescue in the Arctic and future legally binding instruments negotiated under the Council’s auspices, but not adopted by it. The article concludes with a synthesis of the current and prospective roles of the ACS under the law of the sea.

Abstract There is a widely held view that there is a need to formulate a comprehensive set of general principles for the legal regime of maritime areas beyond national jurisdiction (ABNJ). On the basis of existing suggestions for a list of governance principles, the present report investigates how these principles might be formulated in more detail. The report concludes that most of the principles are already part of international law. The report submits that an advantage of drawing up an instrument on governance principles for ABNJ would be that it brings them together in one single document and would unequivocally recognize their relevance. To be effective, such an instrument should, in addition: contain commitments to apply and operationalize these principles; identify institutions and other actors which have a role in the implementation of these principles; and provide for reporting by these institutions and other actors to a global body allowing the assessment of the stage of implementation of the principles.

Abstract The main focus of this article is the regulation of fishing in the maritime zones of Svalbard in light of both the Spitsbergen Treaty and the international law of the sea. It examines the legal positions of Norway, other states and the European Commission/European Union on, inter alia, the spatial scope of the Spitsbergen Treaty and complements this with analyses of relevant (sub-)regional and bilateral fisheries instruments and Norwegian legislation. These analyses illustrate, inter alia, that the practice of many states and entities involved seeks to reconcile legal positions on the spatial scope of the Spitsbergen Treaty with a raft of other interests. The conclusions also devote attention to possible pathways to resolve diverging positions, as well as to the potential for Norway to address the issue of unregulated fisheries in the context of the rapid pace of climate change in the Arctic.

Since the Treaty of Lisbon, the legislative system of the European Union is based on a distinction between legislative acts and non-legislative acts as well as on a distinction between delegation and implementation. This system has brought about several issues that received a fair degree of scholarly attention prior to the entry into force of the Treaty of Lisbon and in the initial years thereafter. The new Interinstitutional Agreement on Better Law Making (IIA) has addressed some of these issues, but this still leaves the question open as to how this new legislative system is to be implemented in practice. This article reviews these issues, first, in light of the new IIA and, second, in light of the legislative practice that has emerged since then. The revision of the Directive on Institutions for Occupational Retirement Provision is taken as the legislative case in this respect. This case includes political conflicts between mostly national and EU legislatures but also conflicts with regard to the substance of some EU provisions. It also evaluates the role of EU agencies – in this case the European Insurance and Occupational Pensions Authority (EIOPA) – within the rules of the EU’s legislative system.

This article discusses Hugo Grotius’s ‘pamphlet’ Ordinum pietas in the political and religious setting of 1613, attempting to draw some lessons from a contemporary perspective. At a time of religious struggle and strife De Groot felt himself committed to ´religious peace´, implying freedom of conscience as a public-political principle coupled with toleration of religious diversity in practice. It is in the context of religious conflict at a time of transition that his allegiance to an established confession and his rejection of sectarian sectarian concepts of theocracy, may be understood. A connection is made to both modern requirements of ‘religious peace’ and universal human rights as a ‘global faith’.

After a conceptual examination of global values and their role in international law, this article examines the role of the United Nations, especially the General Assembly, in the translation of globally shared values into legally binding international commitments. This process already commenced with the United Nations Conference on International Organization, held in 1945 in San Francisco, where the UN Charter was born. The way this process functions is illustrated by using the global value of social progress and development as an example. First, it is shown how this value ended up in the UN Charter in 1945. This is followed by a description of this value's evolution, especially the inclusion of a ‘sustainability element’, which took place at the General Assembly and various global conferences organized under the auspices of the United Nations.

How does EU legislation impact the Member States? Arguably, no other issue is more closely connected to national sovereignty. However, existing research has thus far failed to deliver a univocal answer to this question. Instead, quantitative research – from political scientists and public administration scholars – has resulted in very diverging conclusions. By contrast, the legal perspective on the relationship between the EU and its Member States has been dominated by a focus on the principles of conferral and subsidiarity, as well as on the delineation and use of EU powers. Such an approach makes it equally difficult to identify the actual and concrete impact of EU legislation. Yet, it is contended in this contribution that a legal perspective, focusing on the actual content of EU legislation, is needed to come to a better understanding of the EU’s legislative impact on the Member States.The scope of application and the added value of EU legislation as well as national discretion therein are three key elements for determining the impact of EU legislation. The scope of application concerns the situations covered by EU legislation; added value regards the question of how EU legislation relates to other (pre-existing, overarching and adjacent) EU law. Policy choices and other room for manoeuvre for the Member States included in EU legislation makes for national discretion. Examples may be open norms or non-defined terms and concepts and the possibility to apply exceptions at the national level to general rules of EU legislation. Three areas of EU law are compared, each with a focus on a particular legislative act: migration law (the Family Reunification Directive); freedom to provide services (the Services Directive) and criminal law (the Framework decision on the European Arrest Warrant).

In the Avotiņš v. Latvia judgment the European Court of Human Rights (ECrtHR) rules on the compatibility of mutual trust and mutual recognition of judicial decisions with the European Convention of Human Rights (ECHR). This decision was expected especially after the CJEU delivered its Opinion 2/13 on the Draft Agreement on the EU Accession to the ECHR. Mutual trust was indeed one of the arguments of the CJEU to justify the reject of the Draft Agreement. In Avotiņš v. Latvia, the ECrtHR revisits its case law on the Bosphorus presumption, which exonerates, under certain conditions, EU Member States from their responsibility under the ECHR when they apply EU law. Although mutual trust implies a reduced control over fundamental rights protection and a quasi-automatic recognition of judicial decisions, the ECrtHR remains confident that the EU protection of these rights is equivalent to the ECHR. The case note shows how the Strasbourg Court draws a line between the effectiveness of the AFSJ on the one hand and the respect for fundamental rights on the other. If the ECrtHR validates the principle of mutual trust it does so at the condition that the respect for the ECHR is not manifestly deficient.

Although not explicitly regulated by the EU treaties, EU agencies not only exist but also have increased in number and power. In addition, while EU agencies may exercise very similar functions to those of the Commission, Articles 290 and 291 of the Treaty on the Functioning of the European Union (TFEU) do not list agencies among the possible authors of non-legislative acts. The existing situation raises the questions of the extent to which the ongoing agencification in the EU is legitimate and what its limits are. This article addresses these questions in the light of the old and new Treaties and case law, including the just releasedESMA-shortsellingcase. It shows that while the Lisbon Treaty made a few steps forward on the road of legitimizing EU agencies and delegating important powers to them, the scope of powers that EU agencies can have remains unclear. In this respect, the European Court of Justice's lenient approach in theESMA-shortsellingcase is unfortunate because it neither clarifies the issue nor pushes the Union Legislator and the Member States to address it. Consequently, in the absence of clear limits, further agencification is likely to persist at the risk of increasing the democratic legitimacy deficit and remaining accountability gaps.

The Association with Turkey entered its final stage with the establishment of the Customs Union regarding free movement of goods;1 the instruments of the transitional stage, however, are the ones that govern the free movement of workers, services and establishment, namely the two Association Council Decisions adopted in 1980 and the Additional Protocol (AP) to the Association Agreement.2 There have been developments facilitating free movement in these latter areas for the last 15 years.3 However, these developments were not triggered by the adoption of new Association Council Decisions or Protocols, but merely by the removal of obstacles that had been introduced contrary to the standstill obligation in these areas.4 Genc is also such a case. It concerns a Danish Law introduced in 2004 that makes family reunification more difficult for children whose parents do not apply for reunification within the two-year period following the date on which they obtain permanent residence in Denmark. The ECJ delivered a judgment on another family reunification case two years ago. Dogan concerned a family reunification measure introduced by Germany (the requirement to pass a German language test in the country oforigin) in contravention to the standstill clause on freedom of establishment (Art. 41(1) AP).5 The Court ruled that such a measure constituted a “new restriction” under the standstill clause and that Germany was not able to justify it, because it was disproportionate and went beyond what was necessary to achieve the aim of “preventing forced marriages and the promotion of integration”.6 Dogan was the first case in which the Court established that family reunification fell within the scope of a standstill clause, and the Danish court and government sought to challenge that finding so as to prevent it from becoming established case law. They asked the ECJ to reconsider its judgment in light of its recent case law (in particular Ziebell and Demirkan),7 in which it adopted a more restrictive approach to interpreting provisions of Association Law, after discarding the previously acknowledged objective of accession and replacing it with an “exclusively economic” one.At the request of the Danish Government, the Court delivered the judgment in a Grand Chamber. It in fact confirmed not only that family reunification fell within the scope of the standstill clauses, but also the changing nature or softening of those clauses. While these clauses were initially interpreted as clauses containing an absolute prohibition on “new restrictions”, under the new line of case law, they are much softer, allowing for derogations and justifications replicating those under the EU free movement rules.

In this article, four trajectories will be followed with a view to further developing the linkages that exist between the EU Single Market and fundamental (social) rights and to examining to what extent the EU Single Market, apart from putting constraints on the realization of social rights, offers the chances to enhance and even strengthen the social face of the EU. The question is whether the current approach to EU free movement law by the EU Institutions and most notably the Court of Justice of the European Union (CJEU) could benefit the protection of fundamental social rights. The article also examines the potential impact of the EU Charter and the changes brought about by the Lisbon Treaty, strengthening the social face of the EU.