1. On 30 April 2008, the Commission adopted a Proposal for a Regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (hereinafter: ‘the proposal’) (). The proposal was sent by the Commission to the EDPS for consultation, in accordance with Article 28(2) of Regulation (EC) No 45/2001 and was received by the EDPS on 15 May 2008.

Access to European Parliament, Council and Commission documents

While trying to defend their salaries from austerity measures, a group of Portuguese judges may have accidentally stumbled upon a way to judicially safeguard the rule of law and the independence of the judiciary throughout the European Union. Referred from Lisbon to Luxembourg, where it was decided by the Court of Justice of the European Union, the case discussed in this contribution may have its most significant impact in Warsaw and perhaps also in Budapest, capitals of the twoMember States most often accused of threatening the basic values of the EU in recent years. The judgment of the Court delivered in February 2018 was as groundbreaking as it was surprising, even if the outcome itself was predictable. The Court decided that the second subparagraph of Article 19(1) TEUmust be interpreted as meaning that the principle of judicial independence does not preclude a temporary reduction in the remuneration paid to members of the Portuguese Tribunal de Contas (Court of Auditors) in the context of austerity measures linked to an EU financial assistance programme. While the final decision could easily have been anticipated – temporary pay reductions in the context of austerity have been accepted by the Court of Justice and other courts in the past – the very fact that the

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Judicial serendipity: how Portuguese judges came to the rescue of the Polish judiciary: ECJ 27 February 2018, Case C-64/16, Associação Sindical dos Juízes Portugueses.

The European Constitution and the Eurozone Crisis: A Critique of European Constitutional Pluralism

Brexit was drama and dramatic in equal measure. The referendum was initially promised in January 23 2013 and took place on June 23 2016. In the intervening years the issue remained largely in the political background, casting the occasional shadow, but rarely if ever dominating debate outside a self-select group of Conservative Eurosceptics. This was unsurprising given that the EU consistently registered low on the issues felt to be important by voters, barely ever coming above seven or eight in this regard. It was also unsurprising even within the Westminster village, since truth to tell it was not clear that the Prime Minister would have to honour the promise. This would only be so if he won an outright victory at the 2015 election. The opinion polls indicated a hung parliament where coalition government would be the order of the day, thereby allowing uncomfortable promises to be kicked into the political long grass. Matters turned out rather differently. David Cameron delivered the outright victory that had not been predicted and basked briefly in the glow of praise that attends such gladiatorial contests. It was to be short lived. The Conservative Eurosceptics left the Prime Minister in no doubt that his promise would indeed have to be kept. They pressed him to name the day, hoping that it would lead not to connubial bliss, but to the break-up of a union. The issue that had simmered on the political back burner assumed centre stage, and the run up to the referendum saw ever more heated debate. The Leave Camp won, and their principal protagonists set a new record for resiling from more promises in a shorter period of time than anyone could recall. Those who favoured Remain sincerely hope that all the rest is not just history.This article charts the course of Brexit from the Bloomberg speech through to the referendum and beyond. It takes the drama that was Brexit and uses it to structure the subsequent analysis. Being cognizant of place and time, and the fact that it is 400 years since the death of Shakespeare, the ensuing discussion is therefore broken down into six Acts, each of which is foreshadowed by some select Shakespearian quotations that are pertinent to the discourse. I hope that it thereby enriches the analysis. Act 1 considers the road to Bloomberg and the origins of the promise to hold the referendum, followed in Act 2 by examination of the importance of the Balance of Competence Review, which was a major government exercise in which each department assessed the impact of EU law in its area. Act 3 picks up the story after the Conservative electoral victory in 2015, analysing David Cameron’s renegotiation of the UK’s terms of EU membership, while Act 4 concerns the referendum debate and the principal arguments deployed by the Leave and Remain camp respectively. Act 5, entitled the ‘political fall-out, a week is a long time in politics’, continues the story in the aftermath of the referendum, and contains three more specific scenes, politics as blood-sport, politics as party and politics as responsibility; it is followed by Act 6 ‘the legal fall-out, two years is a short time in law’, which also has three particular scenes in which key issues concerning the beginning, middle and end of the negotiation process under Article 50 TEU are explored.

Brexit: A Drama in Six Acts

Gap between the EU’s normative commitments to socio-economic justice and the practical workings of its integration project -- Potential for strengthening the social EU by recourse to the Charter of Fundamental Rights of the European Union – Charter normatively commits EU to a constitutionally conditioned Internal Market – Charter curbs property rights and entrepreneurial freedom specifically for the sake of social rights guarantees – Constructive response to legitimacy dilemmas emerging from cases such as Laval, Viking and AGET Iraklis – Reinstating socially embedded constitutionalism at EU levels as an alternative to relegating social integration to national levels

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Towards More Resilience for a Social EU - the Constitutionally Conditioned Internal Market

There is an interesting symmetry in the two leading cases concerning the legality of measures to tackle the financial crisis. In Pringle the argument was that the European Stability Mechanism was unlawful, because it concerned monetary policy and hence fell outside the competence of the Member States. In Gauweiler the converse argument was deployed, the principal contention from the Bundesverfassungsgericht being that the programme for Outright Monetary Transactions concerned economic policy, and was outside the remit of the ESCB. It was central to both claims that the measures infringed either Article 123 or Article 125 TFEU, which ensured that the state remained responsible for its indebtedness, limiting the extent to which EU institutions or Member States could provide financial assistance. The CJEU rejected the argument in both cases, and this article considers the issues raised by the Gauweiler litigation.The discussion begins with the role of the European Central Bank in the financial crisis, and the measures it adopted to restore financial balance. This is followed by analysis of the preliminary reference from the Bundesverfassungsgericht, which is set against its well-known jurisprudence on ultra vires and identity locks. The reference was especially significant given that it was the first time that the Bundesverfassungsgericht had used Article 267 TFEU.The focus then shifts to the CJEU’s ruling, which followed much of the reasoning of Advocate General Cruz Villalon and rejected the central tenets of the Bundesverfassungsgericht’s argument. We consider in detail the CJEU’s reasoning, and juxtapose this to the Bundesverfassungsgericht’s conceptualisation of the case. The central assumptions of the two courts differed, with the CJEU conceptualising the case in terms of monetary policy transmission, while the Bundesverfassungsgericht framed its reasoning in terms of the impact of OMT on interest rate spreads. It will be argued that the CJEU’s reasoning is to be preferred and that its conclusion was legitimate in the light of the relevant Treaty provisions. The penultimate section of the article considers the Bundesverfassungsgericht’s possible response to the CJEU’s ruling. This is perforce conjecture, but it is possible nonetheless to make reasoned inquiry as to aspects of the CJEU’s ruling that the Bundesverfassungsgericht might be able to accommodate, and those that it will feel more difficult to accept. The final section of the article places this inquiry into the broader context of other judicial review actions concerning the legality of measures adopted to deal with the financial crisis.

Gauweiler and the Legality of Outright Monetary Transactions

This commentary offers an analysis of the Florescu ruling, rendered by the ECJ in June 2017. Among others, it offers insights on the legal status of the MoU bailed-out countries enter into, the reviewability of these instruments, and the applicability of the EU Charter of Fundamental Rights to financial assistance in the EU.

Bailouts, the legal status of Memoranda of Understanding, and the scope of application of the EU Charter: Florescu

textThis article looks at theories of differentiated integration and disintegration in the wake
of the Eurozone crisis and the Brexit referendum. It advances four distinct, albeit interrelated, arguments with respect to these proposals. First, it could be contested whether
certain policy areas should be pushed to the ‘outer core’ of European integration. Second,
it would be very difficult to disentangle those areas to be pushed to the ‘outer core’ from
those areas remaining in the ‘inner core’. Third, the legal and institutional arrangements
for organizing differentiated integration are equally important. Fourth, even if the problems adumbrated above could be addressed satisfactorily, the emerging arrangements for
differentiated integration would differ little from the degree of flexibility or variation that
already exists within some of those areas. Brexit may be viewed as an opportunity for
reform to ‘fix’ those issues that are regarded as problematic in the design or functioning of
the EU. Should it appear desirable to pursue differentiated integration, the better course
of action would be to build on those opportunities for differentiated integration that are
offered by the EU Treaties. Any forthcoming Treaty revision to take stock of Brexit could
be used to give added impetus to differentiated integration.

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Differentiated Integration and Disintegration in the EU: Brexit, the Eurozone Crisis, and Other Troubles

This book looks at accountability in the field of Economic and Monetary Union, including the Banking Union. It looks at the emergence of a new constitutional and governance architecture in the Eurozone, following the measures that were adopted in response to the crisis. It shows how the rules and institutions that were put in place in response to the financial and public debt crisis affect not only the economies of the Member States but also the lives of European citizens. It makes the case for instilling more democratic legitimacy into the Economic and Monetary Union and examines the impact of the new EU economic governance framework on the horizontal and vertical distribution of power in the EU and the Member States. The key question is: what is the appropriate level, type, and degree of accountability and transparency that should be involved in the development of the EU’s governance structures in the areas of fiscal/economic governance and the Banking Union? The book evaluates the powers conferred on the European and national parliaments in the fields of economic governance, monetary policy, and banking supervision/resolution, as well as the European Parliament’s input into the crisis-induced measures. It further looks at access to EU courts, the available remedies, and the role of the EU and national courts in reviewing economic and monetary policy measures. Finally, it sets out the author’s own proposals regarding the reforms needed to strengthen the Eurozone, as well as transparency, accountability, and—more broadly—legitimacy in the Economic and Monetary Union.

Accountability in the Economic and Monetary Union: Foundations, Policy, and Governance

The AGET Iraklis case (C-201/15) revisits the Viking/Laval case law and sheds new light on the uneasy relationship between labour law and the EU’s fundamental economic freedoms. This article examines three sets of issues: the balance between the economic and the social in AGET Iraklis; the interplay between freedom to conduct a business (Article 16 of the EU Charter) and labour rights; and the Economic and Monetary Union dimension of the Court’s ruling in AGET Iraklis. The article makes three key claims. First, it is argued that the Court’s ruling marks a step towards a reconciliation between EU free movement law and labour law. Second, it is argued that Article 16 of the EU Charter of Fundamental Rights can be more ‘dangerous’ to labour rights when EU secondary law is interpreted in the light of that provision (such as in Alemo-Herron). In cases where both EU free movement law and Article 16 are engaged, the latter may not be equally influential. Third, it is noted that the margin of appreciation left to the domestic authorities might lead to further deregulation of the national labour law concerned, as Greece is subject to an economic adjustment programme.

Menelaos Markakis

Papers

Gauweiler and the Legality of Outright Monetary Transactions

Bailouts, the legal status of Memoranda of Understanding, and the scope of application of the EU Charter: Florescu

Differentiated Integration and Disintegration in the EU: Brexit, the Eurozone Crisis, and Other Troubles

Accountability in the Economic and Monetary Union: Foundations, Policy, and Governance

Can Governments Control Mass Layoffs by Employers? Economic Freedoms vs Labour Rights in Case C-201/15 AGET Iraklis