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.

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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.

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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.

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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*

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. In its judgment under appeal, the CFI had held that the European Community (EC) is competent to adopt regulations imposing economic sanctions against private organizations 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 skepticism 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 analyzes 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 recognizing the importance of public security.

EU Law, International Law and Economic Sanctions Against Terrorism: The Judiciary in Distress?

The purpose of this paper is to explore abus de droit as a general principle of European Union law with particular reference to its application in the field of financial law. Whilst the principle of abuse of right is invoked in diverse areas of law and in many legal systems to serve a variety of purposes, in EU law it has been a latecomer and developed mainly in the fields of tax law and free movement. In the case law of the Court of Justice, the concept of abuse is used in two situations. First, in cases where a person seeks to circumvent the requirements of national law by relying on a Community freedom, engaging in effect in forum shopping, and, secondly, cases where a person seeks to derive an improper advantage from Community legislation. In general, the impact of the doctrine in Community law has remained limited. In the context of free movement, the ECJ has understood the doctrine narrowly in keeping with the expansive interpretation of the Treaty freedoms. In many fields, the doctrine has been largely concretised through the articulation of detailed rules in various Community directives. A prime example of such concretization is offered in the field of financial law. Since the adoption of Directive 2003/6, the term “market abuse” has become a term of art referring specifically to insider trading and market manipulation. The definition of manipulation comes closer to the general principle of abuse since most of its forms involve artificial transactions which formally remain within the bounds of the law. As for the free movement of investment firms, the detailed provisions of MiFID make less necessary reliance on the doctrine of abuse as a general principle of Community law, although it continues to have a residual role both where statutory arrangements do not provide a solution and as an aid to their interpretation.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1438577_code1175289.pdf?abstractid=1438577&mirid=1&type=2

Abuse of Right in EU Law: Some Reflections with Particular Reference to Financial Law

This article provides a statistical analysis of actions for the judicial review of Community measures between 2001 to 2005. It addresses, among others, the following questions: What is the rate of success of judicial review applications? What percentage of cases fails on admissibility and what percentage on merits? Which grounds of review are more likely to succeed? Does the rate of success differ depending on the type of applicant, the subject matter of the case or the Court formation? Far from being merely a quantitative exercise, the determination of the rate of success of judicial review applications provides a measure of the effectiveness of judicial review, enables us to identify the “values gap” between the judiciary and the other branches of government, and reflects a constitutional equilibrium within a given polity.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1623498_code1175289.pdf?abstractid=1623498

P. Takis Tridimas

Papers

EU Law, International Law and Economic Sanctions Against Terrorism: The Judiciary in Distress?

Abuse of Right in EU Law: Some Reflections with Particular Reference to Financial Law

Winners and Losers in Luxembourg: A Statistical Analysis of Judicial Review Before the ECJ and the CFI (2001-2005)