Search

Chapter 6 by Imelda Maher examines Article 3 of the Protocol, entitled ‘Common Travel Area’ (CTA). Maher explains how the CTA is a long-standing arrangement which has allowed Irish and UK citizens to move freely between the two islands, and she underlines how Article 3 of the Protocol essentially enables the two countries to continue this practice, provided it respects the rights of natural persons conferred by EU law. At the same time, Maher shows how the CTA is a largely uncodified arrangement, which relies on multiple sources of law, including international agreements, bits of immigration legislation in the UK, and several memoranda of understanding (MoUs) on travel, access to health, and education. In fact, Maher stresses how the first legally binding recognition of the CTA could arguably be found in Protocol 20 to the EU Treaties, which exempted Ireland and the UK from joining the Schengen free movement zone, because of their CTA. While this provision of primary EU law will have to be removed at the next round of treaty revisions, according to Maher the CTA has today found a legal protection in the Protocol on Ireland/Northern Ireland. Yet, the CTA remains mostly a political commitment between the two governments, which suggests that its future remains somewhat uncertain.

Competition Law: Convergence through Law and Networks uses an evolutionary lens to explore how the EU competition law regime is undergoing change again with the introduction of the ECN+ Directive (2019/1) and the Damages Directive (2014/104). Modernization through Regulation 1/2003 was revolutionary. Alongside the move to a more economics-based approach by the Commission, enforcement was delegated to National Competition Authorities, releasing Commission time and resources to focus on much bigger and economically significant cases. This chapter examines how the European Competition Network is an important governance tool in developing coherence, convergence, and mutual cooperation and how the limitations of minimal procedural convergence led to the pendulum of evolution swinging back again towards the EU with the Damages and ECN+ Directive.

This paper presents the findings of a comparative statistical study examining the application and trends in the deployment and utilisation of European Union (EU) law before the Scottish and Irish courts over a 10-year period from 2009–2018. The paper poses the question, how does European integration impact on the domestic legal systems of EU Member States due to the increasing volume, and significance, of cases where EU law is raised and applied within domestic legal systems? The research presented is of particular relevance in light of Brexit. It allows prescient reflection on the significant disruption and impact the United Kingdom's exit from the EU is likely to have on areas of domestic law which are highly integrated with EU law. It highlights the potential difficulties implicit in attempting to unpick over 40 years of assimilation of EU law and principles into Scots law. These research outcomes should lead to further reflection and debate on the role of EU law and its impact on judicial decision-making in the Scottish and Irish legal systems in general.

The idea that EU treaties have become too difficult to amend is a recurring one. This article explores changing national constitutional rules and norms in the consent stage of EU treaty making in twenty-eight Member States between 1950 and 2016 asking how parliaments, people and courts came to be much more significant for consent, what the consequences of this shift are, and offering some tentative proposals as to how the challenges this raises could be addressed. EU treaty making has become more complex, but we argue that treaties should be more rather than less difficult to amend where concerns over two-level legitimacy rather than two-level games predominate. Embargo until published, check for published version during checkdate report - AC | https://www.cambridge.org/core/journals/cambridge-yearbook-of-european-legal-studies/latest-issue 6 month embargo once published - AC

This article examines the legal frameworks surrounding the EU energy policy and its associated institutional architecture. Particular focus is on the Agency for Cooperation of Energy Regulators (ACER). Taking stock of ongoing debates concerning the Energy Union and recently proposed reforms, the purpose of this analysis is twofold. First, from a theoretical perspective, this article explores the limits of the principal/agent model for European integration after the Treaty of Lisbon. It argues that a rule of law analysis should supplement this model in order to improve the encapsulation of the complexities of delegation in policy areas such as energy. Second, this will enable a reflection on the principle of energy justice and the way in which it is articulated by policy and governance changes in the EU.

Irish Courts are not exclusively national courts. They form an integral part of a pan-European Union legal network where domestic courts are increasingly viewed, at least by the Court of Justice of the European Union (EUCJ) as European Courts. Just as national courts are interwoven in this pan-European judicial structure, domestic laws too are interwoven with EU Law with the state under an obligation to give effect to EU law. Interpretation, including resolution of conflicts between domestic and EU norms is the responsibility of national courts. Where interpretation is unclear, the EUCJ can be approached under the preliminary reference procedure, the EUCJ being the sole authoritative interpreter of EU Law. While the role of the EUCJ a-top this pan-European network gives it the unique ability, via its case law, to affect the legislative and policy choices at the national level that relate to EU law, it conversely also has overseen national courts, including those from smaller Member States, playing an unusually significant role in the constitutional developments of the European Union itself.

Networks of competition agencies are now a central feature of international competition law enforcement and policy. The nature of these networks varies from little more than occasional talking shops, to arrangements for knowledge exchange and technical assistance, through to the European Competition Network which is a highly integrated and institutionalised network of agencies enforcing common rules. One question that emerges is how do these networks and transparency as a tool of good governance intersect? To what extent is there a need for balance between effectiveness and transparency? In order to shed light on the challenge of transparency for competition networks, this chapter draws on insights from the literature on transparency and competition networks.

“While the wind of change may be about to blow the precise direction in which it will blow cannot yet be determined so there is a level of uncertainty, as is evident from discussion about, for example, how Northern Ireland’s land boundary with Ireland will be affected by actual withdrawal by the United Kingdom from the EU.” Maguire J. Re McCord [2016] NIQB 85 para 107 Maguire J. was prescient in his observations as to the uncertainty surrounding the only land border there will be between the EU and the UK after Brexit. This raises the question of how to maintain an invisible border between Northern Ireland and Ireland, that invisibility being one of the most conspicuous outcomes of the Belfast/Good Friday Agreement. The answer to that question depends on how people and goods are dealt with post-Brexit. This in turn depends on the preservation of the long-standing Common Travel Area (CTA) and the nature of the trade relationship between the EU and UK post-Brexit and whether there are special arrangements in relation to Northern Ireland. The border emerged as a key issue in the final hours of the first phase of the Brexit talks , highlighting how it is a complex challenge. That border has many dimensions. There is the obvious question of geography: a land border of almost 500 km that currently is invisible. There is the legal context of the Common Travel Area (CTA) between the UK and Ireland, which the UK and EU have agreed will continue after Brexit. There is the Belfast/Good Friday Agreement, which the same parties have agreed to protect. And there are the EU treaties and the future agreement between the UK and the EU following Brexit. There are the practical considerations of movement of people and goods across the border and there is the sensitive political context that this has been a violently contested border in the past. This article explores these dimensions focussing mainly on the movement of people across the border. It analyses how the CTA will survive Brexit and specifically how a border can(not) be avoided if the UK leaves the customs union. It explores the CTA and December Joint Report between the UK and EU marking the end of the first phase of Brexit negotiations. It sets out the challenges for the law posed by the conflicting political ambitions of a soft border and a hard Brexit. Its conclusion is in the spirit of the comment of Maguire J. above: that while legal certainty is to be aspired to, that sometimes this is not possible. Even after the hoped for transitional arrangements between the EU and UK that may allow for some legal experimentation, the border and the CTA will necessarily look different after Brexit if the UK leaves the internal market and the customs union. Divided into four parts, the article first provides some context in relation to economics and politics before turning to the opaque, legally obscure and practically significant CTA. The CTA and Brexit are then analysed before turning to the issue of how trade and in particular how the UK leaving the customs union will affect the guarantee of no hard land border before concluding.

Since the establishment of the European Economic Community in 1957, regulation, the promulgation of rules, coupled with mechanisms for monitoring and enforcement, has been a key instrument of governance. Arguably this fact and its implications have only been progressively realised following the publication of the seminal contribution of Giandomenico Majone in the 1990s. This reflection on regulation in the EU occurred at the same time as a double trend in EU regulatory governance, towards requiring or encouraging the development of independent regulatory agencies in the member states, while at the same time growing the number of independent agencies, some with forms of regulatory power, at the level of EU. These measures for the institutionalisation of regulation in agencies, albeit to a greater degree at national level than at EU level, made the dependence of the EU on regulatory instruments simultaneously both more obvious and more challenging. Amongst the core challenges associated with regulatory forms of governance is the delegation of responsibilities for making and for monitoring and enforcing rules. Within the EU this delegation frequently has a double character, since member states have to implement rules set by the EU legislature and then themselves delegate the administrative implementation to agencies. The risks associated with such delegation are reasonably well understood and include the undue accretion of power in organisations which are quite remote from elected government, risks of missions being redfined, excessive zeal (imposing disproportionate costs on regulatees), capture (where agencies identify too strongly with the interests of those they are supposed to regulate), unfairness in the application of regimes which prioritise outcomes over processes, not to mention shirking and inefficiency. We argue in this chapter that in response to these challenges associated with regulatory governance in the EU, and not limited to the establishment of and delegation of power to agencies, there have emerged four sets of principles or meta-doctrines of regulatory accountability in the European Union. We have labelled these doctrines: Independent Regulation and Institutional Balance; Administrative Justice; Value for Money; and Better Regulation. As with the common law, the principles lying within these meta-doctrines are not codified, and the work of scholars, and in which we make a start, is to draw together emergent doctrines from a range of sources including primary and secondary legislation, administrative instruments such as guidance, decisions of oversight bodies such as the ombudsman offices and the courts. We start the chapter with some further elaboration of the concept of the four meta-doctrines, prior to concluding with an evaluation and indications of next steps for exploring and understanding meta-doctrines of accountability in the EU.

Research Highlights and Abstract Viewed from the theory of two-level games, the European Union (EU) Act (2011) is a rare example of a government tying its hands in international diplomacy. The UK government could find its hands more tightly bound than anticipated under the EU Act, inter alia, due to the enhanced role of the courts in EU treaty ratification. The EU Act could convey bargaining advantages to the UK, but it could also encourage other EU member states to walk away from the negotiating table. The risks posed by tighter ratification rules are borne out by Ireland's experience of EU treaty ratification since the Supreme Court ruling Crotty v. An Taoiseach (1987). David Cameron's ‘veto’ of plans for a new EU treaty in December 2011 illustrates the difficulties of knowing ex ante when a referendum is required under the EU Act. The European Union (EU) Act (2011) provides for greater parliamentary oversight and the possibility of a referendum before EU treaties can be ratified. This article explores the EU Act from a two-level game perspective, seeing it as a rare example of a government tying its hands in international diplomacy. That the UK government could find its hands more tightly bound than anticipated is suggested by Ireland's turbulent experience of treaty ratification in the light of Crotty v. An Taoiseach (1987), a landmark ruling by the Irish Supreme Court and an inspiration for the EU Act. This situation could, the theory of two-level games predicts, bolster the UK's bargaining position in Brussels, but it could also damage the country's credibility and encourage other member states to walk away from the negotiating table. This last point helps to shed some light on the UK's ‘veto’ of the Fiscal Compact in December 2011.

Cartels today are prohibited under competition regimes around the world, although seen historically (in Europe at least) as a public good to be tolerated or even encouraged by governments. Despite the prohibition, illegal cartels are still prevalent, and there are circumstances where cartel-like conduct is allowed under competition rules. This article explores the extent to which such conduct can be both subject to one regulatory regime (competition law) while also carrying out regulatory functions, and hence can be construed as transnational private regulatory regimes (TPRERs). There are three categories of cartel-like arrangements: private contractual arrangements that fall outside the realm of competition law; self-regulatory arrangements designed to exclusively advance the interests of regulatees; and hybrid regimes where private arrangements have been co-opted as a form of regulation which operate in the shadow of competition law and are often seen as advancing competition objectives.

The impetus for this chapter is the extraordinary difficulties surrounding the adoption of the Lisbon Treaty. It aims to provide a framework within which to explore trust in EU law. The question of trust has become even more significant since the adoption of the Lisbon Treaty with the emergence of the fiscal crisis in Greece and in the wider eurozone. This chapter initially seeks to locate the question of trust within the much-discussed notion of the democratic deficit in the EU, drawing on the work of Snell. It argues that the question of democratic deficit raises questions about trust in the EU, and that institutionalised distrust is what is required in order to secure appropriate trust in EU law and governance. It then examines the nature of trust before turning to two major crises of distrust in the EU: the Irish referenda on the Lisbon Treaty and the ongoing difficulties presented to the eurozone of the indebtedness of some of its members.

There is a normative and a functional dimension to delegation to non-majoritarian institutions. These dimensions are explored in this paper and considered in the context of the recent modernization of European Community (EC) competition law enforcement. The principal – agent model provides insights into how and why Member States delegate extensive enforcement powers to the EC Commission and the National Competition Authorities, but as it offers primarily a functional analysis the normative issues of control, accountability and legitimacy cannot be fully encapsulated within it. Thus, an analysis of the EC competition law regime requires consideration of both dimensions using the twin-track approach of principal – agent analysis and a rule of law analysis in order to understand how public power is and should be exercised within it.

In An Inquiry in the Nature and Causes of the Wealth of Nations, Adam Smith warned that directors of joint-stock companies, being the managers ‘of other people’s money y are apt to consider attention to small matters as not for their master’s honour’ (Smith, 1776, Book 5: Chapter 1). Smith’s assertion reflects the long-standing interest of economists in the consequences of separating the ownership and control of firms, with pioneering contributions to the field including Berle and Means (1932) on the crisis of control in US corporations in the run-up to the Great Depression and Coase (1937) on the optimal size of firms. Building on this earlier work, proponents of the new organizational economics in the 1970s developed the principal-agent approach as a means of understanding the contractual relationship ‘between two (or more) parties when one of these, designated the agent, acts on behalf of or as representative for the other, the principal’ (Ross, 1973, pp. 134–139). Early applications of the principal-agent approach in the economics domain focused on profit-sharing incentives in government contracts (Berhold, 1971), insurance contracts (Spence and Zeckhauser, 1971) and the ownership structure of firms (Jensen and Meckling, 1976). Political scientists were quick to realize the usefulness of this new approach as demonstrated by Banfield’s influential principal-agent analysis of political corruption (Banfield, 1975). Over the last 30 years, the principal-agent approach has been applied to an array of political science topics, ranging from the oversight function of the US Congress (Weingast and Moran, 1983)

Proceedings from the 10th Irish EU Law Forum, University College Dublin, 19 January 2007 Contents of this Symposium: Imelda Maher: INTRODUCTION: REGULATING MARKETS AND SOCIAL EUROPE: NEW GOVERNANCE IN THE EU Colin Scott: NEW-ISH GOVERNANCE AND THE LEGITIMACY OF THE EU Blanaid Clarke: TAKEOVER REGULATION: THROUGH THE REGULATORY LOOKING GLASS Gavin Barrett: DELIVERING A COMMUNITY EMPLOYMENT LAW: A TALE OF TWO MECHANISMS Simon Deakin: REFLEXIVE GOVERNANCE AND EUROPEAN COMPANY LAW Peer Zumbansen: VARIETIES OF CAPITALISM AND THE LEARNING FIRM: CONTEMPORARY DEVELOPMENTS IN EU AND GERMAN COMPANY LAW

This article uses the issue of compulsory licensing of copyright to explore the relationship between intellectual property law (specifically copyright law) and competition law in the EU. It takes as its starting position the proposition that competition law is the ultimate restraint on the monopoly potential of intellectual property with intellectual property rights (IPR) located in competition law. However, it argues that it is too simplistic to cast the approach of the European Court of Justice (ECJ) in theIMScase purely as one of competition law being allowed to trump copyright. Instead, it sees the judgment as an example of doctrinal compromise for both legal subsystems with competition law placing limits on the invocation of copyright as the basis for a refusal to deal, while suggesting a remedy in the form of compulsory licensing which runs contrary to its conceptual roots in private law and notions of freedom of contract.

The highly formalized Stability and Growth Pact gives ECOFIN power to impose sanctions on states that breach the Pact's budgetary targets. As the ECOFIN meeting in November 2003 showed, it has considerable but not unlimited discretion. The Commission has called for a more flexible interpretation of the Pact, the strengthening of sanctions against non-compliant member states and successfully litigated the legality of the ECOFIN decision. We argue that the predominance of soft law in EMU's fiscal framework is functionally suited to the uncertainty that surrounds economic co-ordination over the medium term. This suggests an inherent tension in the Commission's proposals: although a more flexible interpretation of the Pact gives more room for fiscal manoeuvre to states that start from healthy budgetary positions, it also makes it more difficult for ECOFIN to measure compliance. This uncertainty re-emphasizes the soft law elements of the Pact, rather than bolstering the efficacy of its sanction mechanisms.

There are differing views about the need for economic policy coordination in the EU and about the adequacy of the system that has evolved under EMU. This article examines the case for such policy coordination, then describes and assesses the current arrangements for both ‘hard’ coordination — epitomised by the much-maligned Stability and Growth Pact (SGP) — and the ‘soft’ forms of coordination that have evolved in the EU to complement formal rules. Although the system achieves more than is sometimes recognised, it is shown to have weaknesses. Options for reforming the SGP and other facets of the system are discussed.

Central to the internationalization of competition law has been the emergence of transnational networks of competition officials and experts. These networks have operated in three main areas: co-ordination on enforcement; technical assistance; and moves to develop overarching competition principles at the level of the WTO. The debate over the nature of internationalization of competition norms has fallen into three phases: early failures mainly due to the lack of any network; politicization of competition policy within a UN context followed by the emergence of a network primarily focused on the OECD. The current phase concerns coordination and the attempt to develop a competition law regime at the WTO level. This process is spearheaded by the European Union, with the United States of America favouring bilateral agreements on enforcement and technical assistance only. The way the debate has changed over the past ten years and how the two main protagonists have modified their positions, is indicative of the influence and importance of networks which, while they may give rise to formal agreements, can operate through soft power and persuasion. What emerges from the analysis is the centrality of these networks to this important aspect of contemporary international governance. They supplement rather than replace more traditional forms of internationalism and, while they may fundamentally regard themselves as technocratic, deriving legitimacy from outputs, current pressures on international policy making require them to attend to the process aspects associated with legitimacy of democratic regimes.

There is a double asymmetry in the structure of economic and monetary union (EMU). First, monetary policy is uniform while national economic policies are merely co-ordinated. The credibility of monetary policy is underwritten by an independent European Central Bank, but this is not sufficient as the objective of price stability depends on other aspects of economic policy. Thus greater coordination of national economic policies is needed to secure a credible monetary policy. This highlights the second asymmetry. The emphasis on credibility has been such that due regard has not been given to the legitimacy of the EMU policy architecture. If policy-making is to be effective, credible and legitimate, decisionmakers need to pay attention to four key legitimacy indicators: input, output, values and process. It seems inevitable that the success of the developing policy architecture and its effects, both in its monetary and economic dimension, will be judged against these broader standards.

The Competition Act 1998 radically reforms United Kingdom (UK) competition law displacing discretionary political action with more juridical norms based on the European Community (EC) competition rules. Such alignment is not required under EC law but in fact has occurred in most Member States1 and in all those countries seeking to join the EC in the near future.2 The basis of British competition law has shifted from a control of abuse system to a prohibition system. Under the control of abuse system everything was legal until expressly declared illegal. No penalties were imposed and decisions ultimately could be taken at the political level by the Secretary of State. Under the new prohibition system introduced by the Act breach of either of the two prohibitions on restrictive agreements and abuse of dominance may lead to the imposition of substantial fines in a manner similar to that found under EC law. This reform can properly be seen as a seismic shift in the regulation of competition within the UK leading to a juridification and codification of competition policy backed by a system of sanctions. This article argues that this process of juridification has redefined the role of the Office of Fair Trading (OFT) and created a very powerful regulator in its Director General. Codification takes the form of the Act itself supplemented by guidelines and for the first time a system of precedent through the now juridified successor of the Monopolies and Mergers Commission (MMC) the Competition Commission (CC). While codification facilitates and emphasises compliance, the Act also introduces strong investigative powers and sanctions. Finally, the article concludes that soft harmonisation with EC norms does not lead to complete harmony between the two systems of rules nor should it. In fact, there is continuing strength in the diversity that remains, leading to a greater bedding down of the system into the domestic legal order thus ensuring its acceptance and effectiveness, one where there is recognition that uniformity of legal norms across legal orders is little more than a fiction and that there are aspects of the EC system which can be improved on.

Within an emerging global system of law national legal orders are just one dimension of a world-wide network of legal communications. The Community as a legal order dependent on the Member States for its creation and implementation of its norms shores up the state in this increasingly global and fragmented system. Although this interdependency facilitates the implementation of Community norms, difficulties remain because of the different characteristics of competence, territory and time between the legal orders. More fundamentally, the strength of the links between existing law and social processes may inhibit and refract the introduction of Community norms.