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Showing papers in "Common Market Law Review in 2011"


Journal Article
TL;DR: In this paper, the authors examine the function of the revised identity clause in Article 4(2) TEU and propose an institutional and procedural framework in which domestic constitutional courts and the Court of Justice interact as part of a composite system of constitutional adjudication.
Abstract: The present article examines the function of the revised identity clause in Article 4(2) TEU. By focusing on the fundamental political and constitutional structures of Member States, Article 4(2) TEU provides a perspective to overcome the idea of absolute primacy of EU law and the underlying assumption of a hierarchical model to understand the relationship between EU law and domestic constitutional law. The revised identity clause in Article 4(2) TEU not only demands respect for national constitutional identity, a notion determined through a close interplay of domestic constitutional law and EU law, but can be understood as permitting domestic constitutional courts to invoke, under certain limited circumstances, constitutional limits to the primacy of EU law. At the same time, Article 4(2) TEU, in tandem with the principle of sincere cooperation contained in Article 4(3) TEU, embeds these constitutional limits into an institutional and procedural framework in which domestic constitutional courts and the Court of Justice interact closely as part of a composite system of constitutional adjudication

133 citations


Journal Article
TL;DR: In this paper, a European constitutional lawyer's view, the soundness of the reforms already at proposal stage, as well as the emergency activity currently undertaken, may be called into question, as core rules of the Treaties are disrespected.
Abstract: Economic governance in the EU has been undergoing substantial changes since the beginning of the sovereign debt crisis. The re-arrangements are affecting the convergence of European economies, budgetary control and emergency reactions. Some of them are still at proposal stage, such as the "sixpack" proposed by the Commission for a series of legislative measures on convergence and budgetary surveillance, which is still under scrutiny in Parliament and which is accompanied by activity of the European Council (Euro-Plus-Pact, European Semester). Emergency action is being undertaken since May 2010 (Greek package, EFSM, EFSF) and should lead to a newly inserted provision in the TFEU together with a new international financial institution (ESM). From a European constitutional lawyer's view, the soundness of the reforms already at proposal stage, as well as the emergency activity currently undertaken, may be called into question. European constitutionalism is at stake, as core rules of the Treaties are disrespected. Democratic governance is threatened, as most of the new structures are devoid of parliamentary backing. Stability and welfare are jeopardized as the policy of the Union deviates from successful ways of economic governance as enshrined in the Treaties. European legal scholarship must not be reluctant in pointing at such deficiencies and should participate in showing ways out of the crisis.

115 citations


Journal Article
TL;DR: In this article, the authors present the current state of negotiations, on the basis of the draft texts produced by the CDDH informal working group on the accession of the European Union to the European Convention on Human Rights.
Abstract: After more than fifty years of debate on the relationship between the EC/EU and the ECHR, the Lisbon Treaty introduced a provision requiring, without any doubt, the Union to accede to the Convention: Article 6(2) TEU. After a brief historical review of the developments leading up to this step, the article analyses critically the present state of negotiations, on the basis of the draft texts produced by the CDDH informal working group on the accession of the European Union to the European Convention on Human Rights (CDDH-UE) with the European Commission. The most important topics concern the scope of accession, the extent of control over EU action and remedies. The question what status is to be given to the EU within the ECHR system is also addressed. The crucial issues of the division of responsibility between the Union and its Member States - including the proposed co-respondent system - and the possible means of involving the European Court of Justice in relation to alleged infringements of human rights are examined.

50 citations


Journal Article
TL;DR: The EU Climate and Energy Package (the Package) as discussed by the authors is a comprehensive set of legal acts aimed at responding to global and European climate change and energy challenges, and integrating climate change considerations into a range of sectors and policies.
Abstract: The EU Climate and Energy Package (the Package) is a comprehensive set of legal acts aimed at responding to global and European climate change and energy challenges, and integrating climate change considerations into a range of sectors and policies.1 The technical complexity of the Package illustrates how the body of legal norms related to climate change is expanding rapidly and becoming so specialized that many are now referring to “climate law” as an emergent legal discipline.2 Yet, the Package contains a number of elements that could have important implications for the future of the European Union and are of interest to general EU lawyers. It has been described as “a momentous development”3 whereby major and politically contentious pieces of climate and energy policy were adopted in less than a year. One of the main objectives of the Package is to steer the EU towards a fundamental

49 citations


Journal Article
TL;DR: In this article, a legal perspective on the new European External Action Service (EEAS) is provided, and the new body is placed in the reshuffled institutional balance of EU external relations.
Abstract: This article provides a legal perspective on the new European External Action Service (EEAS), and positions this new body in the reshuffled institutional balance of EU external relations. To that end, the paper examines the EEAS's legal nature as compared to that of Council, Commission, their support services and EU agencies, and seeks to define the EEAS's sui generis status in the EU institutional set-up. Some relevant questions are: What are the implications of its absence of legal personality, what does its "functional autonomy" from the Council and Commission imply, what are its formal powers - if any, and could the EEAS be drawn into proceedings before the Court of Justice? In answering those questions, this article then examines to what extent the legal-institutional choices on the structure of the EU External Action Service reflects the age-old tension entrenched in EU external relations law: the EU's nature as an internally diverse entity, which seeks to present a coherent Union voice to the world.

37 citations


Journal Article
TL;DR: The legal framework regarding EU Justice and Home Affairs Law was changed fundamentally by the Treaty of Lisbon, so that the usual rules on decision-making, jurisdiction of the Court of Justice, legal instruments and legal effect are now largely applied to this area of law.
Abstract: The legal framework regarding EU Justice and Home Affairs Law was changed fundamentally by the Treaty of Lisbon, so that the usual rules on decision-making, jurisdiction of the Court of Justice, legal instruments and legal effect are now largely applied to this area of law The various issues falling within the scope of JHA law are now set out in Title V of Part Three of the Treaty on the Functioning of the European Union, which is divided into five chapters, beginning with general provisions, followed by chapters on immigration and asylum, civil law, criminal law and policing law This paper examines the application of the new rules in practice, in particular the impact of extending QMV; the extended legislative powers of the European Parliament; the role of the Commission as compared to the Member States; and the role of national parliaments It concludes that this area of EU law is now fully part of the mainstream, with the exception of the special opt-outs for three Member States However, it now follows that some of the general problems of EU law apply to JHA legislation, and there are emergent problems ensuring that JHA legislation is applied in practice by Member States, in particular from the perspective of the ECHR

30 citations


Journal Article
TL;DR: In this paper, the first draft agreement on the accession of the EU to the ECHR by the strict requirements of the autonomy of the legal order is compared with the review of EU action by the ECtHR.
Abstract: This contribution measures the first draft agreement on the accession of the EU to the ECHR by the strict requirements of the autonomy of the EU legal order. It concludes that the review of EU action by the ECtHR would be compatible with the autonomy. However, the procedure before the ECtHR provided for in the draft agreement raises serious problems. Both the co-respondent mechanism and the prior involvement of the ECJ are well-intended suggested solutions, but may not pass the hurdles erected by the ECJ in its case law on the autonomy

29 citations


Journal Article
TL;DR: In this paper, the authors propose a balanced approach in which the intermediary protection regime can be safeguarded, whilst still protecting the rights of third parties whose rights may be infringed on the internet.
Abstract: Internet access providers, online platforms and other intermediaries benefit from a protection against liability claims caused by end-users' illegal or harmful information. This liability limitation is enshrined in the 2000 Directive on Electronic Commerce, a directive considered crucial for a proper functioning of the internal market, the uptake of the information society and the protection of freedom of speech. Throughout the years, the liability protection for online intermediaries seems, however, to have been gradually carved out by case law, particularly on the Member State level. In recent cases, such as C- 236/08, Google France, and C-324/09, L'Oreal, the European Court of Justice has also interpreted relevant EU legislation. Online intermediaries are increasingly forced to monitor the activities of their users if they want to remain shielded from liability. Paradoxically, obliging online intermediaries to monitor the information transmitted or stored by users is forbidden by the same Directive on Electronic Commerce. This article proposes a balanced approach in which the intermediary protection regime can be safeguarded, whilst still protecting the rights of third parties whose rights may be infringed on the internet.

28 citations



Journal Article
TL;DR: The citizens' initiative is a novel instrument for direct democratic participation in the functioning of the European Union which was introduced by the Treaty of Lisbon and given effect through the adoption of Regulation 211/2011.
Abstract: The citizens' initiative is a novel instrument for direct democratic participation in the functioning of the European Union which was introduced by the Treaty of Lisbon and given effect through the adoption of Regulation 211/2011. This article examines the background, context and content of the Citizens' Initiative, before turning to consider two main sets of legal issues: who precisely a citizens' initiative may claim to represent; and what a citizens' initiative may realistically seek to achieve. It is argued that (on paper at least) the Treaties and Regulation 211/2011 have together created a relatively weak instrument: one which is likely to be activated only by organised civil society; and in any event appears heavily dependent upon mediation through the Union institutions. But whatever its fate as a tool of participatory democracy, the citizens' initiative engages in new and potentially fruitful ways with various broader issues of Union law: for example, the prospects for building a truly borderless Union citizenship; the place of third country nationals within the political dimension to European integration; and the complex task of interpreting and reconciling the Union's core values and objectives.

26 citations


Journal Article
TL;DR: In this article, it is argued that applying the reasoning in Romano to the EU agencies reveals, even more so than by applying the Meroni doctrine, that the ongoing agencification rests on very shaky legal grounds.
Abstract: A contentious issue regarding the institutional phenomenon of agencification of the Union administration is the question whether and to which extent executive powers may be conferred on EU agencies. This question has arisen because the Treaties neither foresee nor exclude the possibility for the Union legislature to establish other bodies through secondary law. So far this question has also remained unresolved because the Court of Justice has not yet ruled on this specific issue. In the case law of the Court there are however rulings to be found, notably the Meroni and Romano cases, in which the conferral of powers on bodies more or less similar to EU agencies was reviewed. Unsurprisingly these rulings, and especially the Meroni ruling, have therefore attracted the attention of legal scholars in their attempts to frame the process of agencification in the EU. Although the Meroni ruling is much more cited and analysed in the legal debate on agencies than the Romano judgment, it is argued in this contribution that the latter is far more relevant for current day agencies. By applying the reasoning in Romano to the EU agencies it is revealed, even more so than by applying the Meroni doctrine, that the ongoing agencification rests on very shaky legal grounds.

Journal Article
TL;DR: In this article, the authors discuss the ways in which EU legislative or judicial action might be felt to transgress the limits of its assigned power, and the demands of coherence when assessing such claims, which is relevant albeit in different ways for the EU courts, academic commentators and national courts.
Abstract: There has been debate as to whether the EU remains within the ambit of the competence assigned to it, and this concern has been voiced in relation to both EU legislative and judicial action. The Kompetenz-Kompetenz discourse is indeed premised on the fact that the boundary line as to what is intra or ultra vires the EU can be contestable, thereby rendering the issue of who has the last word all the more important. This article begins by specifying in greater detail the ways in which EU legislative or judicial action might be felt to transgress the limits of its assigned power. The analysis then shifts to the demands of coherence when assessing such claims, which is relevant albeit in different ways for the EU courts, academic commentators and national courts. This is followed by examination of some controversial areas, where it is felt that the EU may have strayed beyond its assigned power. The final section of the article examines some of the new challenges posed by the Lisbon Treaty.

Journal Article
TL;DR: In this paper, the authors analyse how recent case law of the Court of Justice, and in particular its Grand Chamber, deals with the theoretical challenges posed by these conflicting demands on age discrimination and on discrimination law at large.
Abstract: Although only addressed by EU law from 2000, age discrimination has been the theme of quite a few cases before the Court of Justice, with a high proportion decided by the Grand Chamber recently. This is due to the conceptual and theoretical challenges that a prohibition to use age as differentiating factor poses. After all, age has been an important stratifier used to synchronize life courses through welfare State regimes in Europe. Partly due to these traditions, there are stereotypes associated with old age, and young age, that in turn lead to disadvantage in employment. For the same reason, age discrimination frequently intersects with discrimination on other grounds, such as sex, race or disability. EU legislation on age discrimination has sought to accommodate the traditional role of age in employment policy by allowing wider justifications than for other forms of discrimination. This leads to contradictions within the larger field of discrimination law, which may even threaten to dilute its efficiency. This article analyses how recent case law of the Court of Justice, and in particular its Grand Chamber, deals with the theoretical challenges posed by these conflicting demands on age discrimination and on discrimination law at large.

Journal Article
TL;DR: The relationship between the German Constitutional Court and the Court of Justice of the European Union is defined by the German Court's controversial claim to review whether EU legal acts are compatible with fundamental rights, whether they stay within the limits of EU competences (ultra vires review), or violate the identity of the German Constitution as mentioned in this paper.
Abstract: The relationship between the German Constitutional Court and the Court of Justice of the European Union is defined by the German Court�s controversial claim to review whether EU legal acts are compatible with fundamental rights, whether they stay within the limits of EU competences (ultra vires review), or violate the identity of the German Constitution. While the German Court has developed these three review functions in different ways, the recent decision in the case of Honeywell indicates that the three lines of jurisprudence are deeply interrelated. In Honeywell, the Court developed a remarkably restrictive approach to ultra vires review, thereby following a similar path as in its famous Solange jurisprudence with regard to fundamental rights review. Against this background, Honeywell allows to put the different lines of case law into context in a way that reveals parallel patterns as well as differences in the developments. Evaluating Honeywell in this context illustrates that the Court can also be understood as a political actor that tries to maintain and define its role in the process of European integration and in the European system of multi-level governance.

Journal Article
TL;DR: The European Securities and Markets Authority (ESMA) was established in 2011 in the wake of the financial crisis as mentioned in this paper and was allocated an impressive range of powers which it exercises in relation to national competent authorities or market actors, including Credit Rating Agencies.
Abstract: The European Securities and Markets Authority (ESMA) was established in 2011 in the wake of the financial crisis. As one of the European Supervisory Authorities (ESA), it is part of the new European System of Financial Supervision. In order to carry out its tasks, ESMA was allocated an impressive range of powers which it exercises in relation to national competent authorities or market actors, including Credit Rating Agencies. The aim of this article is to examine ESMA's powers and the questions that they raise. As an EU body, ESMA was delegated certain powers. This fact raises some important issues - notably with respect to the Meroni doctrine - which this article investigates. In particular, it argues that EU actors have mostly been tight-lipped over the precise constitutional limitations of a delegation of powers when vesting powers in ESMA. The main message of this article is that the lack of clarity characterizing the current state of affairs is unsatisfactory and should be addressed.


Journal Article
TL;DR: In this article, the authors present a normative interpretation of the Treaty of Lisbon and analyze the implications of the distinct transformation this Treaty article postulates: the transition from participation based on a logic of participatory governance to participation that concretizes democracy as a "value" or a founding principle of the Union and that responds to the respective normative yardsticks, such as equality and transparency.
Abstract: Participation in EU governance has been largely kept outside the realm of law. Article 11 TEU has the potential to change this status quo, despite the fact that, with the exception of the European citizens' initiative, it represents more the recognition of previous institutional practices than an innovation proper. This contribution presents a normative interpretation of Article 11 TEU and analyses the implications of the distinct transformation this Treaty article postulates: the transition from participation based on a logic of participatory governance to participation that concretizes democracy as a "value" or a founding principle of the Union, and that responds to the respective normative yardsticks, such as equality and transparency. This is the main challenge posed by Article 11 TEU. While acknowledging that law is not the only way of giving effect to the prescriptions of this Treaty article, this contribution discusses the role of law in operating the normative shift mentioned. It analyses why different EU institutions may be urged to reconsider the role of law with regard to participation, in view not only of Article 11 TEU - as law may be needed to guarantee the conditions that ensure participation as a source of democratic legitimacy in the EU - but also of other Treaty provisions.

Journal Article
TL;DR: In this paper, an in-depth analysis of the Regulation concerning the Registration, Evaluation, Authorisation, and Restriction of Chemicals (REACH) is presented, which is the most important piece of EU environmental regulation to date.
Abstract: In this article, we provide an in-depth analysis of the Regulation concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH). Measured by the economic importance of the European chemicals industry and the environmental and health risks associated with it, the Regulation probably represents the most important piece of EU environmental regulation to date. We argue that the precautionary approach embodied in REACH has triggered a radical departure from past regulatory efforts that failed effectively to engage with contemporary regulatory challenges of scale, uncertainty, complexity and innovation. In effect, REACH is shaping a promising EU regime of responsive co-regulation that is without precedent in the forty-year history of EU environmental law. We believe that the success of this regime will not only determine the effectiveness of EU chemicals regulation, but more generally will come to determine the way in which EU regulation is likely to respond to a host of new technologies that shape our technological modernity.

Journal Article
TL;DR: The European Union Act 2011 as discussed by the authors imposes a complex set of constraints on the acceptance of EU law within the UK, including the need for an Act of Parliament and a referendum in a wide range of circumstances.
Abstract: The European Union Act 2011 imposes a complex set of constraints on the acceptance of EU law within the UK. It stipulates the need for an Act of Parliament and a referendum in a wide range of circumstances - notably Treaty amendment pursuant to the ordinary revision procedure in Article 48(2)-(5) TEU and Treaty reform pursuant to the simplified revision procedure in Article 48(6) TEU - and in addition sets out requirements for statutory approval and other forms of Parliamentary approval in relation to certain EU measures. The 2011 statute raises issues of principle that are relevant for all Member States of the EU. This article explicates the provisions of the European Union Act 2011, and then examines their legal and political implications from the perspective of both UK law and EU law. The article concludes by reflecting more broadly on the implications of the 2011 Act for other forms of constitutional constraint on the acceptance of EU law by the Member States

Journal Article
TL;DR: The provisions of intra-EU IIAs on dispute settlement and in particular investor-State arbitration present an outright incompatibility with EU law, as they violate the principle of autonomy of EU law and thus should be deemed inapplicable.
Abstract: EU law affects the validity and applicability of intra-EU International Investment Agreements (IIAs) both under EU and international law Although EU law and intra-EU IIAs create separate legal systems, they cover largely the same subject matter creating scope for potential conflicts Using different tools and based on different legal principles, both EU law and international law require the determination of the specific incompatibilities between EU law and intra-EU IIAs in order to assess whether and to what extent the latter are applicable In that regard, the provisions of intra-EU IIAs on dispute settlement and in particular investor-State arbitration present an outright incompatibility with EU law, as they violate the principle of autonomy of EU law and, thus, should be deemed inapplicable

Journal Article
TL;DR: In this article, the authors argue that positive action can be separated from other techniques for promoting equality and that maintaining this distinction is important, as applying these requirements in an over-inclusive manner could have the effect of imposing unnecessary restrictions, as well as generating confusion for organizations and individuals with regard to what positive action entails.
Abstract: Positive action is a central element of EU anti-discrimination legislation. It allows measures to be taken to further the realization of full equality in practice by redressing past or present disadvantages experienced by groups such as women, ethnic minorities, etc. With the expansion of EU anti-discrimination law, additional methods of promoting equality have been introduced, such as reasonable accommodation duties, mainstreaming and equality data collection. This has given rise to some terminological and conceptual confusion as to the distinction between these measures and positive action, including within court judgments. This article argues that positive action can be separated from other techniques for promoting equality and that maintaining this distinction is important. In particular, there are a specific set of requirements for positive action measures to be lawful, including respect for the principle of proportionality. Applying these requirements in an over-inclusive manner could have the effect of imposing unnecessary restrictions, as well as generating confusion for organizations and individuals with regard to what positive action entails.

Journal Article
TL;DR: In this paper, the authors address the challenges and make propositions for the future collective redress legislation in the EU and present an in-depth analysis as to the substantive, jurisdictional and conflict-of-laws aspects of both representative and collective actions.
Abstract: Although collective redress constitutes a significant feature of modern judicial systems, EU law seems reluctant as to the introduction of such mechanisms. On the one hand, the role of collective rights of action remains indispensable in order to promote procedural efficiency and overcome rational apathy, especially in the fields of antitrust and consumer protection law where illegal business practices may cause scattered and low-valued damages to a multitude of harmed individuals. On the other hand, the potential for unmeritorious claims and abusive actions should not be underestimated, so that specific safeguards are put in place in order to avoid the emergence of a litigation industry in the form of entrepreneurial attorneys. In light of the recent public consultation launched by the EU Commission, the present paper addresses the challenges and makes propositions for the future collective redress legislation. For that reason, an in-depth analysis as to the substantive, jurisdictional and conflict-of-laws aspects of both representative and collective actions has to be undertaken. In each case, specific consideration will be given to the peculiarities of the Member States procedural traditions and the policy objectives underpinning EU competition and consumer protection law.


Journal Article
TL;DR: In this article, the authors present a case study on post-legislative guidance adopted in the area of climate change and operating at the interface between European and international law, arguing that the European courts' case law is premised upon a series of distinctions that operate to obscure the nature and impact of guidance as a governance form.
Abstract: Post-legislative guidance is a regular feature of European Union law. It serves to elaborate upon the meaning and practical implications of European framework norms. This paper presents a case study on post-legislative guidance adopted in the area of climate change and operating at the interface between European and international law. It examines whether and when post-legislative guidance of this kind may be regarded as susceptible to European-level judicial review. It argues that although the European courts privilege substance over form in deciding which measures may be challenged, post-legislative guidance will frequently escape the scrutiny of these courts. The paper argues that the European courts' case law is premised upon a series of distinctions that operate to obscure the nature and impact of guidance as a governance form and that the European courts should create enhanced opportunities for judicial review. The paper considers what, concretely, this argument might mean for the development of European administrative law. While this paper focuses upon post-legislative guidance in the area of environmental law, the administrative law analysis presented is relevant also beyond this specific substantive sphere.


Journal Article
TL;DR: In the summer of 2010, French authorities organized the systematic dismantling of illegal Roma settlements, which resulted in the departure of a large number of Roma-EU citizens from France, as well as a significant dispute between France and the European Commission.
Abstract: In the summer of 2010, French authorities organized the systematic dismantling of illegal Roma settlements. This resulted in the departure of a large number of Roma-EU citizens from France, as well as a significant dispute between France and the European Commission. While the dispute raises a number of issues of substantive EU law, it also illustrates some important strengths and weaknesses in the system of fundamental rights protection in EU law. This article takes these events as a test case to illustrate that tackling complex problems of human rights protection in the EU requires a hybrid approach in which individual and institutional enforcement mechanisms are complemented by a third level of collective vigilance. While ever since Van Gend & Loos the EU has built a comprehensive system of individual and institutional remedies for the enforcement of EU law, social and political factors may limit their usefulness for vulnerable minorities. The vigilance of collective actors such as networks, NGOs, trade unions and agencies may offer a useful additional layer of protection where they are well-integrated within the classic system of remedies for fundamental rights protection in the EU.

Journal Article
TL;DR: In this paper, the European Commission proposed a Regulation establishing a transitional regime that allows the Member States to maintain their existing BITs concluded with third countries or even to conclude new BITs. But the Regulation Proposal adopted by the Commission is badly drafted and can only be considered a first step towards such an instrument.
Abstract: With the entry into force of the Lisbon Treaty, the Common Commercial Policy (CCP) has been extended to foreign direct investment (FDI). However, the scope of these (exclusive) competences under the CCP is limited and thus does not pertain to all issues governed by contemporary bilateral investment treaties (BITs). Rather, the competences for such BITs are mixed. Therefore, future agreements will have to be concluded by the EU and the its Member States together unless the EU is prepared to exclude the protection of certain investments from its agenda. But mixed agreements on investment protection cause complications concerning their conclusion and implementation. Until a satisfying EU investment regime is set up, investments by nationals of the EU Member States will have to be protected by the Member States' BITs. The Member States of the EU have concluded a large number of bilateral and also multilateral investment agreements governing the protection of investments made. Nevertheless, the existing Member States' BITs are affected by the transfer of exclusive competences for FDI to the EU. Generally, the Member States will have to terminate these agreements. To avoid such severe consequences, the European Commission proposed a Regulation establishing a transitional regime that allows the Member States to maintain their existing BITs concluded with third countries or even to conclude new BITs. Such a transitional regime is essential for the protection of investments by EU nationals. However, the Regulation Proposal adopted by the Commission is badly drafted and can only be considered a first step towards such an instrument.

Journal Article
TL;DR: In this article, the authors examined the case law of the ECJ on the concepts of procedural and remedial autonomy of the Member States in the context of the enforcement of individuals' rights derived from EU law in general.
Abstract: The article explores the question whether, in the light of the concepts of procedural and remedial autonomy of the Member States, the case law of the ECJ on the enforcement of consumer rights derived from various Consumer Protection Directives is consistent with its case law on the enforcement of individuals� rights under other branches of EU law. The authors begin by examining the case law of the ECJ on the concepts of procedural and remedial autonomy of the Member States in the context of the enforcement of individuals� rights derived from EU law in general. Subsequently, the authors proceed with an analysis of the application of those concepts in the most recent case law on the enforcement of consumer rights derived from the Consumer Protection Directives. This part distinguishes between cases concerning national legislation and procedures guaranteeing a higher level of consumer protection than required by those directives (e.g. cases C-509/07, Scarpelli, C-484/08, Caja de Ahorros, C-358/08, Aventis Pasteur) and cases in which national rules fall short of the minimum standards of protection provided for under those directives (e.g. cases C-489/07, Messner, C-215/08, E. Friz, C-511/08, Handelsgesellschaft Heinrich Heine, C-240/98 to C-244/98, Oceano Grupo, C-473/00, Cofidis, C-168/05, Mostaza Claro, C-429/05, Rampion and Godard, C-40/08, Asturcom Telecomunicaciones, C-227/08, Martin Martin, C-243/08, Pannon GSM, C-137/08, VB Penzugyi Lizing). It is submitted that, while the former series of cases reflects a standard application of the concepts of procedural and remedial autonomy, the latter series of cases reveals, in certain regards, a more consumer-oriented approach

Journal Article
TL;DR: In this paper, the authors compare the application of EU competition law in the energy sector with the United States case law on the other side of the Atlantic, and show that the U.S. Courts are less willing to substitute the market-based mechanism with their own views about the most efficient market structure.
Abstract: The application of EU competition law in the energy sector has intensified over the last few years. Article 102 TFEU and the essential facilities doctrine has been employed to change the way in which the European natural gas markets operate. Using a merits based approach to the essential facilities doctrine and transportation capacity contracts, the Commission is attempting to create a market structure capable of supporting competition. While the effect of this body of administrative cases is increasing opportunities for competition and as such can be seen as positive, the measures forced on the back of the essential facilities doctrine raise serious questions on its applicability and scope of actions it allows. A comparison to the case law in the United States shows a stark difference in the approach on the other side of the Atlantic. The Courts in the United States have been less willing to substitute the market-based mechanism with their own views about the most efficient market structure.

Journal Article
TL;DR: The most significant developments of the past decade in European corporate law have been discussed in this article, alongside with the changing patterns of corporate structure in European countries, such as corporate mobility, corporate freedom of establishment, golden shares case law, as well as the Commission's Company Law Action Plan CLAP and Financial Services Action Plan FSAP.
Abstract: European corporate law has enjoyed a renaissance in the past decade. Fifteen years ago, this would have seemed most implausible. In the mid' 1990s, the early integration strategy of seeking to harmonize substantive company law seemed to have been stalled by the need to reconcile fundamental differences in approaches to corporate governance. Little was happening, and the grand vision of the early pioneers appeared more dream than ambition. Yet since then, a combination of adventurous decisions by the Court of Justice, innovative approaches to legislation by the Commission, and disastrous crises in capital markets has produced a headlong rush of reform activity. The volume and pace of change has been such that few have had time to digest it: not least policymakers, with the consequence that the developments have not always been well coordinated. The recent financial crisis has yet again thrown many -- quite fundamental -- issues into question. In this article, we offer an overview that puts the most significant developments of this decade into context, alongside each other and the changing patterns of corporate structure in European countries. Such developments cover, for instance, corporate mobility, corporate freedom of establishment, golden shares case law, as well as the Commission's Company Law Action Plan CLAP and Financial Services Action Plan FSAP. Harmonization of Member States' company laws on the rules governing listed companies and the facilitation of cross-border restructuring are also examined.