During the last years, and especially since the launch of the Lisbon agenda in 2000, the literature on the open method of coordination (OMC) has grown exponentially. Most writers explore the tentative outcomes of the method, since they lack a solid experimental background, against which to assess its actual effectiveness. Lately, however, some empirical studies have come to light. Among them, some fully discredit the OMC as a means of pursuing common policies at the EU level; while others recognise indirect effects, essentially at the national level of policy setting. On the basis of this assumption, i.e. that the OMC has only restricted direct effects in the short term and indirect effects in the medium to long term, the present article first puts forward a series of arguments against the current ‘spread’ of the OMC, and then offers some proposals on how to neutralise some of the identified shortfalls of the OMC. Despite the title of the article, the final conclusion is not for the demise of the OMC, but rather for its ‘communautarisation’. It is put forward that both the application and the effects of the OMC should be more clearly defined and better integrated with the other pre‐existing forms of cooperation, in accordance with basic requirements stemming from the Community legal order.

/pdf/why-the-open-method-of-coordination-is-bad-for-you-a-letter-49ixkq1hqu.pdf

Why the Open Method of Coordination Is Bad For You: A Letter to the EU

How does the law of the European Union affect health law and policy? At first sight, it seems limited. However, despite its restricted formal competence, the EU has recently become increasingly involved in the health field. Litigation based on EU law has resulted in a 'right to receive health care services' across national boundaries which may have huge practical implications for national health systems. The EU has promulgated legislation regulating clinical research, and the marketing of pharmaceuticals; patients' rights are affected by EU legislation on data protection and product liability; the qualifications of health care professionals are legally recognised across the EU; and the EU has acted to promote public health. This book explores the various impacts of measures of EU law on national health law and policy. Through elaboration of selected examples, the authors show that, within the EU, health law cannot be regarded as a purely national affair.

/pdf/health-law-and-the-european-union-1znzofhaap.pdf

Health Law and the European Union

The European Union has existed for over half a century. Having started as the 'Europe of the Six' in a specific industrial sector, the Union today has twenty-seven Member States and acts within almost all areas of social life. The Union's constitutional structures have evolved in parallel with this immense growth. Born as an international organisation, the Union has developed into a constitutional Union of States. This textbook analyses the constitutional law of the European Union after Lisbon in a clear and structured way. Examining the EU through a classic constitutional perspective, it explores all the central themes of the course: from the history and structure of the Union, the powers and procedures of its branches of government, to the rights and remedies of European citizens. A clear three-part structure and numerous illustrations will facilitate understanding. Critical and comprehensive, this is required reading for all students of European constitutional law.

/pdf/european-constitutional-law-16suw9wefa.pdf

European Constitutional Law

As the preferred choice of both teachers and students, this textbook offers an unrivalled combination of expertise, accessibility and comprehensive coverage. The new edition reflects the way the economic crisis has impacted the shape and nature of European Union law. Materials from case law, legislation and academic literature are integrated throughout to expose the student to the broadest range of views. Additional online material on the application of EU law in non member states and on rulings on the Fiscal Compact ensures the material is completely current. The new edition includes a timeline which charts the evolution of the EU project. Written in a way which encourages sophisticated analysis, the book ensures the student's full engagement with sometimes complex material. More importantly, it offers the clarity which is essential to understanding. A required text for all interested in European Union law.

European Union Law: Text and Materials

This article examines the implications of extension of competence to the Court of Justice of the European Union (CJEU) in the area of immigration policy. Through analysis of the implications for Italy, France and the Netherlands of CJEU decisions on expulsion and family reunification it is shown that an EU rule of law has developed that can constrain the executive branch of Member State governments. This means that the EU can no longer be conceptualized in the area of immigration policy as merely an external venue to which Member States ‘escape’ in order to circumvent legal constraints at national level. The growing role of the CJEU forces instead a reconceptualization of the dynamics of immigration law and policy in Europe.

The Development, Application and Implications of an EU Rule of Law in the Area of Migration Policy*

In the process towards European constitutional rediscovery, set in motion by the Treaty of Rome, Article 177 (now 234) has been by far the most important instrument of change. By providing the meeting point for the Community and the national legal orders, it has enabled the ECJ, more than any other jurisdictional provision, to define its mandate, establish the Anew legal order, and develop constitutional doctrine. This article discusses the evolution of the preliminary reference procedure and its adjustment to the constitutional pluralism of the Union; it examines selectively the case law on Article 234 in the period between 1998 and the first half of 2002; and assesses trends in the use of preliminary references by national courts. It is divided as follows. The first part traces the development of the preliminary reference procedure. The second part discusses demand and supply for references and the measures chosen to address the mounting increase in the Court's case law. The article then turns to examine recent case-law in three areas: the control of admissibility of references; the definition of court or tribunal; and the jurisdiction of the ECJ to interpret Community measures where they apply by virtue of national law. The next section discusses varying perceptions of the preliminary reference procedure by national courts. The final parts contains concluding remarks.

Knocking on Heaven's Door: Fragmentation, Efficiency and Definance in the Preliminary Reference Procedure

The purpose of this paper is twofold. First, it examines selectively the provisions of the draft Constitution pertaining to the Court of Justice and assesses the ways in which the draft Constitution is likely to affect the jurisdiction and the function of the Court. Secondly, it discusses the challenges faced by the Court in relation to the protection of human rights by reference to the recent judgment in Schmidberger. Both aspects of the discussion serve to underlie that the Court is assuming the function of the Supreme Court of the Union whose jurisdiction is fundamentally constitutional in character. It has a central role to play not only in relation to matters of economic integration but also in deciding issues of political governance, defining democracy at European and national level, and contributing through the process of judicial harmonisation to the emergence of a European demos. This constitutional jurisdiction of the ECJ is not new but has acquired more importance in recent years and is set to be enhanced under the provisions of the new Constitution. The paper is divided as follows: The first section provides an overview of the way the new Constitution affects the ECJ. The subsequent sections examine respectively Article 28(1) of the draft Constitution, the appointment and tenure of the judiciary, locus standi for private individuals, sanctions against Member States, jurisdiction under the CFSP and the Chapter on freedom, security and justice, preliminary references, other provisions of the Constitution pertaining to the Court, the principle of subsidiarity, and the judgment in Schmidberger. The final section contains some concluding remarks.

https://papers.ssrn.com/sol3/Delivery.cfm?abstractid=490603

The European Court of Justice and the Draft Constitution: A Supreme Court for the Union?

From the Introduction. This article seeks to examine the relationship between European Union law, international law, and the protection of fundamental rights in the light of recent case law of the European Court of Justice (ECJ) and the Court of First Instance (CFI) relating to economic sanctions against individuals. On 3 September 2008, the ECJ delivered its long-awaited judgment in Kadi and Al Barakaat on appeal from the CFI.3 In its judgment under appeal,4 the CFI had held that the European Community (EC) is competent to adopt regulations imposing economic sanctions against private organisations in pursuance of UN Security Council (UNSC) Resolutions seeking to combat terrorism; that although the EC is not bound directly by the UN Charter, it is bound pursuant to the EC Treaty to respect international law and give effect to UNSC; and that the CFI has jurisdiction to examine the compatibility of EC regulations implementing UNSC resolutions with fundamental rights not as protected by the EC but as protected by jus cogens. On appeal, following the Opinion of Maduro AG, the ECJ rejected the CFI’s approach. It held that UNSC resolutions are binding only in international law. It subjected the contested regulations to full review under EC human rights standards and found them in breach of the right to a hearing, the right to judicial protection and the right to property. Kadi and Al Barakaat is the most important judgment ever delivered by the ECJ on the relationship between EC and international law and one of its most important judgments on fundamental rights. It is imbued by constitutional confidence, commitment to the rule of law but also some scepticism towards international law. In the meantime, the CFI has delivered a number of other judgments on anti-terrorist sanctions assessing the limits of the “emergency constitution” at European level. The purpose of this paper is to examine the above case law and explore the dilemmas and tensions facing the EU judiciary in seeking to define and protect the EU’s distinct constitutional space. It is divided as follows. It first looks at the judgment in Kadi. After a short presentation of the factual and legal background, it explores the question whether the EU has competence to adopt smart sanctions. It then examines whether the EU is bound by resolutions of the Security Council, whether the ECJ has jurisdiction to review Community measures implementing such resolutions and the applicable standard of judicial scrutiny. It analyses the contrasting views of the CFI, the Advocate General, and the ECJ taking account also of the case law of the European Court of Human Rights (ECtHR). Further, it explores the consequences of annulling the contested regulation. It then turns to discussing CFI case law in relation to sanctions lists drawn up not by the UN Security Council but by the EC. The paper concludes by welcoming the judgment of the ECJ. Whilst its reasoning on the issue of Community competence is questionable, once such competence is established, it is difficult to support the abrogation of Community standards for the protection of fundamental rights. Such standards should ensure procedural due process whilst recognising the importance of public security.

EU Law, International Law and Economic Sanctions against Terrorism: The Judiciary in Distress? Research Papers in Law, 3/2008

In Case C-376/98 Germany v Council the European Court of Justice annulled a Directive which banned the advertisement and sponsorship of tobacco. The judgment sanctions regulatory policy-making at the national rather than the Community level. The paper examines the legal basis of the annulment, its effect on economic efficiency and the implied role of the Court in the formulation of public policy in Europe. Within the institutional limits of the judicial power to determine policy, the Court focused on whether or not disparate national laws restrict free movement and distort competition and affirmed the primacy of the nation state to regulate economic activity.

P. Takis Tridimas

Papers

Knocking on Heaven's Door: Fragmentation, Efficiency and Definance in the Preliminary Reference Procedure

The European Court of Justice and the Draft Constitution: A Supreme Court for the Union?

EU Law, International Law and Economic Sanctions against Terrorism: The Judiciary in Distress? Research Papers in Law, 3/2008

The European Court of Justice and the Annulment of the Tobacco Advertisement Directive: Friend of National Sovereignty or Foe of Public Health?

Black, White, and Shades of Grey: Horizontality of Directives Revisited