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Showing papers in "Common Market Law Review in 2010"


Journal Article
TL;DR: In this article, the authors chart the EU's regulatory response to the global financial crisis and explore what the response suggests about the new regulatory landscape and its risks, and argue that, while radical reform is certainly needed, the extent to which the EU now governs financial market regulation does generate risks, particularly with respect to the extent of which Member State flexibility and discretion is being squeezed from the regime.
Abstract: This article charts the EU's regulatory response to the global financial crisis, and explores what the response suggests about the new regulatory landscape and its risks. It explores how the current reform programme, in contrast to earlier reform periods, has been dominated by a concern to manage the pathology of the internal market through intensive EU "rules on the books" (law-making) but also, and for the first time in EU financial market regulation, through more radical "rules in action" (supervision and enforcement). The defining feature of the post-crisis reform movement seems to be the array of influences, chief among the new institutional structures, which are driving the financial markets regime toward greater centralization. The article examines this decisive move towards "More Europe" and assesses its ramifications. It argues that, while radical reform is certainly needed, the extent to which the EU now governs financial market regulation does generate risks, particularly with respect to the extent to which Member State flexibility and discretion is being squeezed from the regime.

88 citations


Journal Article
TL;DR: In this paper, the authors argue that EU citizenship has not evolved beyond a construction of market citizenship and suggest that market citizenship endures as at least one valid and credible way of capturing how EU citizenship developed in reality.
Abstract: This article argues that EU citizenship has not (yet?) evolved beyond a construction of market citizenship. The argument does not make a normative claim that EU citizenship is �destined�, to paraphrase the Court of Justice, only and ever to remain a form of market citizenship. But drawing from both the nature of the EU as a polity and the material impact of its citizenship thus far, it suggests that market citizenship endures as at least one valid and credible way of capturing how EU citizenship has developed in reality. The particular qualities of the EU transnational market are explored so that the possibilities afforded by market citizenship are strongly contextualized. The intricate links between the EU and its Member States and the persisting significance of free movement rights are also discussed as defining characteristics of EU market citizenship. The growing impact of developments beyond free movement law is recognized to a certain extent, but this is not construed as an equally paced alchemic reaction in legal, social or political terms. The overall argument presented does not seek to dismiss or displace the wealth of normative thinking that conceptualizes EU citizenship (contested as it is) in both creative and challenging ways. Rather, the article reflects on the extent to which we are actually �there yet� in empirical terms.

75 citations



Journal Article
TL;DR: In this paper, the authors argue that general principles of EU law do not operate as an unstoppable centripetal force at the service of an activist judiciary, and that when having recourse to general principles, the ECJ strives to preserve the vertical and horizontal allocation of powers sought by the authors of the Treaties.
Abstract: The present contribution supports the contention that general principles of EU law do not operate as an unstoppable centripetal force at the service of an activist judiciary. Quite the contrary, when having recourse to general principles, the ECJ strives to preserve the vertical and horizontal allocation of powers sought by the authors of the Treaties. Horizontally, the ECJ distinguishes between matters pertaining to the province of constitutional law and those which are subject to legislative discretion. Stated differently, general principles of EU law are applied without encroaching upon the competence of the EU legislature. Vertically, the ECJ is respectful of the constitutional traditions of the Member States but not to the extent of foregoing the basic constitutional tenets of the Union. General principles seek to create a �common constitutional space� where EU and national law engage in a dynamic dialogue which gives rise to a mutual influence between the two levels of governance. Hence, as instruments of constitutional dialogue, general principles facilitate the constant renewal of the EU legal order, epitomising the �EU�s living constitution�. The article examines the horizontal direct effect of general principles, paying attention to the gap-filling function of general principles, and their role in consistent interpretation and as grounds for review, in a situation of constitutional pluralism.

62 citations



Journal Article
TL;DR: The internal market case law of the European Court of Justice often invokes the term market access, and recently the notion has been given a key role in defining the reach of the four freedoms of the TFE as mentioned in this paper.
Abstract: The internal market case law of the European Court of Justice often invokes the term market access, and recently the notion has been given a key role in defining the reach of the four freedoms of the TFE – free movement of goods, persons, services, and capital. Unfortunately the precise content of the term remains elusive. The use of the notion in (European Union) competition law and WTO law does not provide reliable guidance, due to the fundamentally different contexts. Further, it is not clear what the normative justification for distinguishing formally between access and exercise or direct and indirect effects is. The case law also lacks coherence. In some decisions the Court indicates that the impact on market access is the decisive criterion for the application of free movement provisions, but in others it is prepared to find a restriction or dismiss a case without even mentioning the term. In its most recent rulings the Court has focused on the magnitude of the effects of national measures (which erect barriers to entry), yet it has consistently rejected arguments based on the minor or slight impact of national rules. The article argues that, when pressed, the notion of market access collapses into economic freedom or anti-protectionism, and obscures the need to choose between the competing paradigms of free movement law.

59 citations


Journal Article
TL;DR: In this article, the authors analyze the relationship between the EU's Common Foreign and Security Policy (CFSP) and its other external policies after the entry into force of the Treaty of Lisbon.
Abstract: This article analyzes the relationship between the EU’s Common Foreign and Security Policy (CFSP) and its other external policies after the entry into force of the Treaty of Lisbon. It discusses the implications of the EU’s single legal personality and the institutional innovations to enhance the coherence of the EU’s external action in light of the division of EU external powers and competences. It is argued that the ill-defined nature of CFSP competences and the abolition of the hierarchical delimitation rule of former Article 47 (now as amended Art. 40) TEU places the Court of Justice for a nearly impossible task to delineate the boundaries between the different components of EU external action. The potential for inter-institutional conflicts is illustrated with the new rules for the adoption of restrictive measures against individuals. It is concluded that the delimitation of competences in the field of EU external action cannot be disconnected from the duty of consistency.

55 citations


Journal Article
TL;DR: For a union of States which wants to be "united in diversity" as discussed by the authors, the principle of mutual recognition of different standards and decisions is and has to be a key concept and a vital rule of construction.
Abstract: For a union of States which wants to be “united in diversity”,1 i.e. which seeks to bind together 27 legal orders into one single market and one area of freedom, security and justice without destroying the pluralism of those 27 legal orders, the principle of mutual recognition2 of different standards and decisions is and has to be a key concept and a vital rule of construction. Ever since the judgment

36 citations


Journal Article
TL;DR: The long-awaited Council Decision of 6 April 2009 establishing the European Police Office (Europol) replaces the Europol Convention and transforms Europol from an intergovernmental organisation into an EU agency as mentioned in this paper.
Abstract: The long-awaited Council Decision of 6 April 2009 establishing the European Police Office (Europol) replaces the Europol Convention and transforms Europol from an intergovernmental organisation into an EU agency. This article contains a critical exploration of the new provisions of the Europol Council Decision. The authors take stock of the novelties through a comparative analysis of the Europol Convention, its Protocols, the Commission Proposal and revised versions of the Europol Council Decision. Europol is thematically dissected into clusters: legal basis, competence, tasks, governance and control. The assessment is based on the following questions: What are the major changes? Do they contribute to a better functioning of Europol? What are the missed opportunities? In what direction is Europol heading? The importance of the Europol Council Decision is that it provides Europol with a new and more flexible legal basis. The shift in competence from “organised crime” to “serious crime” is another significant change. The Europol Council Decision continues to stress Europol’s core-business, which remain information-related tasks. A “European FBI” seems far off, even with the transformation of Europol into a full-fledged EU agency. The Europol Council Decision falls somewhat short of expectations when it comes to Europol’s governance and control. Overall, the main conclusion of this article is that the Europol Council Decision is not as new as it would seem, yet new enough to herald a new era for Europol

29 citations



Journal Article
TL;DR: In this paper, the authors analyze the structure of the European Union's executive federalism in three steps and conclude that the Lisbon Treaty will remedy the lack of clear constitutional foundation of Union executive power.
Abstract: Is the European Union a legislative giant on clay feet? Is it true that the Union has, with some specific exceptions, no original competence to implement European law? This article analyses the structure of the Union�s �executive federalism� in three steps. After a comparative constitutional section on the centralized (American) and decentralized (German) enforcement systems of federal norms, the constitutional foundations of executive power in the European Union are explored. Will Article 291 TFEU provide a reformed textual base for the (new) Union�s executive powers? A third section then examines existing constitutional limits to the national (decentralized) and European (centralized) enforcement of European law. Beginning with the decentralized implementation mechanism, a first part of this section looks at the substantive, procedural and morphological limits on the national implementation of Union law. A second part of that section changes perspective as it investigates the constitutional limits on the executive powers of the Union in the form of, for example, the principle of subsidiarity. An excursus briefly analyses the phenomenon of �mixed administration� through a federal lens. And a conclusion finally argues that the Lisbon Treaty will remedy, to some extent, the lack of clear constitutional foundation of Union executive power.




Journal Article
TL;DR: In this paper, the authors illustrate and comment upon the recent developments in the field of infringement proceedings which, in spite of its importance for Member States, EU institutions and finally citizens, is often given insufficient attention in works of academics and practitioners.
Abstract: The purpose of this article is to illustrate and comment upon the recent developments in the field of infringement proceedings which, in spite of its importance for Member States, EU institutions and finally citizens, is often given insufficient attention in works of academics and practitioners. This article will mainly focus on the latest case law of the Court of Justice, without however neglecting the related policy developments in this area.

Journal Article
TL;DR: In this paper, it is argued that a requirement of consistency and coherence is neither fundamentally new nor separate from a traditional EU law model for justification, whereby a restrictive measure must pursue a legitimate objective and be suitable, necessary and proportionate stricto sensu.
Abstract: Consistency and coherence have become increasingly visible in the 2000s as substantive preconditions for the justification of Member State measures restricting free movement. In particular, the ECJ has lately taken to insisting that restrictive national legislation is appropriate for ensuring attainment of the objective pursued only if it genuinely reflects a concern to attain it “in a consistent and systematic manner.” In substance, similar exigencies are however also found in earlier case law. Consistency, in this context, may be understood to mean that nothing is allowed to counteract the attainment of the objective (purportedly) pursued by the restrictive measure, whilst coherence may be used to describe that a measure is intelligible as a means to attain the objective. On this basis, it is argued that a requirement of consistency and coherence is neither fundamentally new nor separate from a traditional EU law model for justification, whereby a restrictive measure must pursue a legitimate objective and be suitable, necessary and proportionate stricto sensu. The analysis carried out also shows that some inconsistencies might frequently have to be accepted and do not necessarily thwart justification of a restrictive measure. At the same time, consistency makes even relatively restrictive measures easier to justify; and the better the coherence between a restrictive measure and its objective, the better chances are that a Member State will gain acceptance for it.

Journal Article
TL;DR: The authors assesses national constitutional courts from the perspective of how they perform in the new "contrapunctual" legal dialogues: are they cooperative and self-restrained, or do they parochially defend their turf, putting national constitutions first.
Abstract: The discourse on the interaction between national constitutional law and EU law has come to centre around the notions of judicial dialogues, cooperative constitutionalism and constitutional tolerance. This is especially so with the increasing popularity of the pluralist approaches to law, which have mapped the dispersion of powers in the Europeanizing and globalizing legal environment, and offered a variety of ways for the avoidance of conflicts through cooperation and interaction in the new heterarchical, “contrapunctual” context.1 The courts are expected to mutually accommodate each other’s concerns, show sensitivity to the boundaries of other legal orders, stand beyond the perspective of any particular system, and find solutions based on certain principles or pragmatic, context-sensitive considerations. This has sparked a burgeoning body of literature that assesses national constitutional courts from the perspective of how they perform in the new “contrapunctual” legal dialogues: are they cooperative and self-restrained, or do they parochially defend their turf, putting national constitutions first. Each new important case of constitutional courts prompts numerous articles assessing the judgment through this perspective.



Journal Article
Thomas Jaeger1
TL;DR: In this article, the authors explore the project's chances of success following the initial Council agreement, highlights necessary changes and tries to display what the patent system's eventual shape at the end of the legislative process might be.
Abstract: Decades of debate over the creation of a sui generis patent right for the internal market have gone by without result. In recent years, discussions have shifted away from the substantive patent right and focused more on institutional and enforcement issues. In spite of numerous proposals produced by the Commission and various Council presidencies over the years, an initial agreement among Member States in the Council could be reached only very recently, in December 2009. Although that initial agreement signals just the start of the lengthy legislative process under the co-decision procedure, the outcome of which is all but certain, and although it does not extend to some important details of the system, prominently the language regime, fees and the rules of procedure for the patent court, the agreement is celebrated as a political breakthrough. Is such euphoria justified? On the basis of the reasons for the prolonged stalemate over the EU patent, this article explores the project’s chances of success following the initial Council agreement, highlights necessary changes and tries to display what the patent system’s eventual shape at the end of the legislative process might be.


Journal Article
TL;DR: In this article, an assessment of the extant EU level judicial enforcement practice provides evidence of the emergence of a twin-track approach, where Member State level activity challenged for non-compliance with EU Agreements is generally subjected to the full force of those Agreements, whilst in contrast the tendency where EU level activity has been challenged before the Court of Justice appears to have become one of shielding such activity from meaningful review.
Abstract: Many of the recent Court of Justice rulings concerning the relationship between the international legal order and the EU legal order have been on the receiving end of considerable criticism, with the EU level judicial commitment to international law being called into question. One dimension of that critique has concerned the treatment of EU concluded Agreements. An assessment of the extant EU level judicial enforcement practice provides evidence of the emergence of a twin-track approach. Member State level activity challenged for non-compliance with EU Agreements is generally subjected to the full force of those Agreements, whilst in contrast the tendency where EU level activity has been challenged before the Court of Justice appears to have become one of shielding such activity from meaningful review. Even if this trajectory were to be maintained, which remains to be seen, it can be argued that the medium of EU law nevertheless serves to bolster the effectiveness of this increasingly expanding body of Treaty law. For EU law has placed at the disposal of litigants, including the Commission via infringement proceedings, the most powerful of tools for policing the compliance of currently twenty-seven Member States with this growing number of agreements.

Journal Article
TL;DR: A legal definition of the precautionary principle has been formulated for all EU food law as mentioned in this paper, which is the first time a legal definition for the principle is formulated for food law.
Abstract: Regulation 178/2002 contains a definition of the precautionary principle. This is the first time a legal definition of the principle has been formulated for all EU food law. This fact, however, has been given hardly any attention in literature. It is all the more surprising because the lack of clear formulation of this concept was the main reason for criticism and controversy surrounding the principle. In the absence of a definition, the precautionary principle was a general notion, similar to the principles of subsidiarity or proportionality. Its scope was determined by decision makers and ultimately shaped by tendencies in case law. After codification, existing policy orientations and earlier case law may in some aspects differ from the legal definition. This article characterizes the main constituents of the precautionary principle and the risk analysis methodology established in Regulation 178/2002 and discusses examples illustrating how different provisions of the Regulation narrow the scope of the principle. It focuses on issues critical to its application: emergency measures, the so-called other legitimate factors, the burden of proof, and pre-market approval schemes.


Journal Article
TL;DR: In this paper, the authors address the question of whether recent developments in the EU, and especially the adoption of the Roadmap to procedural safeguards and the entry into force of the Lisbon Treaty, will lead to a re-balancing of security and justice.
Abstract: In police and judicial cooperation in criminal matters within the EU, security seems to take precedence over justice. This article addresses the question of whether recent developments in the EU, and especially the adoption of the Roadmap to procedural safeguards and the entry into force of the Lisbon Treaty, will lead to a re-balancing of security and justice. The conclusion is that the scope of the Roadmap is too limited and more a duplication of what is covered by the ECHR. It therefore does not fill the procedural rights gap in police and judicial cooperation in the EU that currently exists. If the EU legislature does not fill this gap, it is to be hoped that the European Court of Justice will continue to play its role as the guardian of fundamental rights.


Journal Article
TL;DR: The European Economic Interest Grouping, European Company, the European Cooperative and the nascent European Private Company as discussed by the authors have all been created by the European Union and the European Parliament, respectively.
Abstract: With the European Economic Interest Grouping, the European Company, the European Cooperative and the nascent European Private Company, the series of supranational corporate forms has now attained a scope which invites critical-comparative stock-taking. This article examines the foundations, the development and the architecture of the European Union�s own legal creations. Taking a comprehensive approach, it attempts to synthesize existent legal material and thus provide impetus for the elaboration of a theory on supranational corporate forms in Europe. The article looks at the regulatory instruments which the European legislature has used to overcome resistance by the Member States with regard to the development of supranational corporate statutes. It also assesses the EU-wide exchange of ideas and models in the context of the development of supranational corporate forms. Finally, attention is paid to the key characteristics and elements of supranational corporate forms, including: legal personality; corporate purpose and company object; cross-border involvement; registered and head offices and company members from third countries.