Showing papers in "Common Market Law Review in 2013"

The constitutional implications of the European responses to the financial and public debt crisis

Abstract: The wide-ranging debate on the responses to the crisis increasingly calls into question the future of the EU as a polity. This article contributes to such discussion in legal scholarship by arguing that the European responses to the crisis since autumn 2008 have already set in motion a number of processes which are reshaping the EU polity. Three important but often misrepresented processes are identified. The first is the emergence of a new EU method of action, which breaks with the historically rooted balance of voices within the EU, while directing it towards a distinct form of reinforced intergovernmentalism. The second process corresponds to the trend to have recourse to arrangements both partly internal and partly external to the EU framework. Such a process opens the way to the autonomization of the EMU, and of the eurozone within the EMU, which endangers the legal and institutional unity of the EU. The third is the transformation of the EMU from a "community of benefits" to a "community of benefits and risk-sharing", which reshapes the traditional construction of the EMU and might prefigure a federal transformation of the EU, but it also raises functional and legitimacy issues. These developments have the potential to undermine prerequisites of the EU as a project oriented towards democratic constitutionalism: they may ultimately lead to a de-institutionalization of the EU; they exhaust the main democratic legitimacy sources of the EU polity; and they undermine the already fragile social embeddedness of EU institutions.

The Court of Justice approves the creation of the European stability mechanism outside the EU legal order: Pringle

Abstract: Case C-370/12, Thomas Pringle v. Government of Ireland, Ireland, The Attorney General, Judgment of the Court of Justice (Full Court) of 27 November 2012.

'Yellow card, but no foul' : the role of the national parliaments under the subsidiarity protocol and the Commission proposal for an EU regulation on the right to strike

Abstract: The article analyses the role of the national Parliaments under the Subsidiarity Protocol, taking the recent Commission proposal for a regulation on the exercise of the right to strike and the reaction of national Parliaments as a case study. In this case, for the first time since the entry into force of the Lisbon Treaty, national Parliaments activated the "yellow card" procedure set up by Protocol No. 2 to ensure compliance by the EU institutions with the principle of subsidiarity. The article claims, however, that the Commission proposal was sanctioned with a "yellow card" without having committed any foul. The article analyses the role of national Parliaments under the Subsidiarity Protocol and - on the basis of textual, structural and functional reasons - advances the argument that the review of national Parliaments should focus exclusively on violations of the principle of subsidiarity and should not extend to the evaluation of the proportionality, legal basis or political merits of a draft EU legislative proposal. The article then outlines the context and the content of the Commission proposal and examines the reasoned opinions of the national Parliaments against the draft regulation. By testing the previously developed framework, the article explains that in the present case national Parliaments have gone beyond their role, failing to identify any subsidiarity violation in the draft regulation. The article concludes by maintaining that the Commission proposal, in fact, was compatible with the principle of subsidiarity and suggests that the draft regulation may have been the most appropriate tool to strike a new balance between free movement and social rights in the EU. Because of the decision of the Commission to withdraw its proposal, nevertheless, the article warns that the Commission may have inadvertently encouraged a misuse of the subsidiarity review by the national Parliaments with potentially negative effects on the delicate balance of powers between the States and the EU.

Who's afraid of the Charter? The Court of Justice, national courts and the new framework of fundamental rights protection in Europe

Abstract: The Charter of Fundamental Rights of the European Union has forced the European Court of Justice and its national counterparts to face a series of difficult and principled questions: Who is the ultimate interpreter of fundamental rights in Europe? Which standard of protection is to be given priority? How does the Charter bind Member States when applying EU Law? This article argues that the first seminal decisions of the European Court of Justice on the matter, in particular the judgments in Akerberg Franssonand Melloni, have set the ground for a new framework of fundamental rights protection in the European Union. However, this framework does not depend on the sole authority of the Luxembourg court, but on a complex system of checks and balances that will demand complicity and commitment on the part of national supreme and constitutional courts

The new ECB and its relationship with the eurozone Member States: Between central bank independence and central bank intervention

Abstract: The financial and sovereign debt crisis has had a great impact on the relationship between the European Central Bank (ECB) and the Member States of the Eurozone, a relationship traditionally studied from the perspective of central bank independence. This article takes a different perspective on that relationship, namely that of central bank intervention in Member State economic policy making. It focuses on the pressure and influence exercised by the ECB on the Member States of the eurozone. The two perspectives combined reveal the nature of the ever more frequent and intense interaction between the ECB and the Member States of the eurozone. In the crisis, several different forms can be identified of ECB pressure on eurozone Member States to adopt reforms in the areas of fiscal policy and structural reforms, marking a shift from interaction to central bank intervention. This ECB intervention is parallel to an equally unprecedented intervention by the collective of eurozone Member States in the economic policy of several Member States through the economic policy conditionality linked to financial assistance. The article analyses several instances of ECB intervention, offers an explanation and a theoretical framework for normatively assessing it. The main risk identified for the ECB in this article is that of being perceived as a political or politicized actor, although it is acknowledged that the ECB is confronted with a difficult balancing act. The ECB should be more cautious in its approach, the further an issue is from its core mandate of securing price stability.

I trade, therefore I am: Legal personhood in the European Union

Abstract: The piecemeal, case by case construction of EU citizenship has created a patchwork of personhoods rather than a unitary status - a patchwork with significant gaps through which people deemed economically inactive are allowed to fall. This paper argues that it is necessary to assess the integrity and effects of a market-centric, economic citizenship. The free movement legal landscape is riven with welfare rights "cliff edges," as changes in circumstance tip claimants from full equal welfare entitlement to none. Examples drawn from the UK include the welfare restrictions placed on Zambrano-reliant families, and the care and pregnancy gaps in Directive 2004/38. Market citizenship and the worker-commodity paradigm have not disappeared, but have been obscured and fortified through the moral language of citizenship and responsibility. The impact upon our ideas of fairness and society is evident in the Union's activation agenda for national welfare regimes. This paper argues that we should recognize the ideological ramifications of accepting the premises of market citizenship, assess its consequences, and ask whether an alternative approach is possible to challenge Member State minimal implementation, to better commit to the protection of each others' nationals and to promote EU level social justice

My brothers keeper? Horizontal solange : An ever closer distrust among the peoples of Europe

Abstract: It is suggested in this paper that the Court of Justice has made a modest, although by no means a trivial, move towards becoming the Constitutional Court of Europe, particularly in the N.S. case, where it rejected the Union's guiding rule of automatic reliance on the principle of mutual confidence. The paper proposes that this represents a test, labelledthe "horizontal Solange" test and which is composed of two tiers. The first, substantive, tier forms the Solange component. Cooperation between Member States will be maintained as long as all the Member States systematically adhere to core European fundamental rights. If the evidence shows that a systemic violation of core European fundamental rights took place in a Member State, other Member States should suspend their cooperation. The second, institutional, tier forms the "horizontal" component. The national courts are entrusted with the task of reviewing whether the other Member States abide by the European standard of protection of fundamental rights.The exact substantive contours of the test are examined alongside the test's possible implications for related fields of law of the European legal order. The test also allows the ECJ to interweave the different European fundamental rights systems into a fully integrated judicial dialogical network, and to steer the exact direction in which European legislation should advance.

European integration through standardization: How judicial review is breaking down the club house of private standardization bodies

Abstract: Standardization is slowly but slowly but surely marching forward into the public domain. The revision of the European standardization package is stimulating this development because the use of private standards in public policy is supposed to spur technological innovation and reduce barriers to trade. This may explain why the Commission wants to speed up the standardization process. In the meanwhile, however, a number of important legal issues remain unaddressed in recent European policy and legislation on standardization, such as: how far "delegation" of public rulemaking to private standardization bodies may go and if and when this could come into conflict with the alleged voluntary and self-regulatory nature of these standards; whether copyrights that rest on standards limit the access to pieces of legislation that refer to standards in an unlawful way, and who is responsible for the content of the standards: the state or the market? Our hypothesis is that the "club mentality" of standards makers has, until recently, worked as an effective shield against market dynamics and judicial review. However, under the influence of recent case law from the ECJ and national highest courts, the "club house" of the standards bodies is starting to show cracks.

Official secrets and the negotiation of international agreements: is the EU executive unbound?

Abstract: Supranational executive power is mutating at the level of the EU political system through a growing array of institutions, (new) agencies and other actors who exercise in one way or another executive powers One of the less visible though no less crucial executive powers is the management of access to official information At the supranational level we have seen a growth in specific secrecy arrangements An important way for building those secrecy arrangements is through the establishment of systems of classification of documents These security rules have received little academic attention, both in terms of the legal framework and in terms of the empirical practice This article aims to fill that gap in the existing literature by examining the intersection of internal institutional "security" rulemaking by the plural EU executive with legislative and Treaty requirements and in particular with parliamentary and public oversight mechanisms applied specifically to recent practice of negotiations on international agreements Do the existing legal and political responses in the area of the negotiation of international agreements in particular indicate the existence of robust checks and balances by the EP to counteract the internal rulemaking power of the executive in the context of the EU? Is the EU executive "unbound" in a more general sense or adequately held in check by the EP in collaboration with other oversight institutions and the public?

Proving Public Interest: The Growing Impact of Evidence in Free Movement Case Law

Abstract: When national measures restrict free movement rights, Member States canargue that their actions are, nevertheless, justifiable and proportionate. But how do they actually demonstrate this?. This article explores the standard that Member States must satisfy to provetheir public interest claims successfully. It will be argued that a critical information gap on what the Court of Justice expects defendant States to establish has been narrowed through a more concerted focus on proof in recent case law; but that significant issues still demand further attention. While an evolving guidance framework can be pieced together by extracting key principles from relevant - especially more recent - case law, it is questionable whether this is sufficient for national courts and lawyers. The fact that more attention isbeing placed on proof and evidence in recent case law, however, also raises questions about the value or even propriety of applying a veneer of empiricism over the many complexities involved in adjudicating on public interest choices. As a case study, the article discusses the difficulty of unpicking economic arguments from public interest claims. It is suggested, overall, thatknowing an appropriate standard of proof has to be reached is one thing; but knowing what it is and how to reach it is something else entirely.

The EU market rules as social market rules: Why the EU can be a social market economy

Abstract: This paper challenges the "structural social deficit of the EU treaties" argument, referred to also as the asymmetry of economic and social integration within the EU. It shows that in relation to the Member States social policies the EU market rules (competition and State aid law, the free movement rules and deduced from them the public procurement rules) can be also read as social market rules, particularly after the revisions made by the Lisbon Treaty. I.e., this set of norms does not necessarily lead to a destabilization (by de-regulation, liberalization or privatization) of the Member States' welfare regimes, but allows for the inclusion of these systems into the internal market and insofar for the creation of a social market economy in the EU. The thesis is substantiated by a legal analysis of the EU negative welfare integration process structured along the different layers of the EU market rules at which that inclusion is legally implemented: their scope of application, the proportionality test and their impact when enforced.

Reflections on the role of the Court of Justice as the "motor" of European integration: Legal limits to judicial lawmaking

Abstract: This article argues for a new approach to the assessment of the Court of Justice's contribution to EU integration. Responding to weaknesses identified with the classic "activism" versus "restraint" scholarship on the Court, it constructs a more robust theoretical framework to critique the legitimacy of judicial lawmaking. This framework, inspired by political science scholarship on the Court, positions the ECJ as an institutional actor, engaged alongside the EU legislature in the development of EU law through judicial interpretation. The institutional actor thesis is employed to explore the restraining impact of Treaty provisions on the ECJ's freedom to act as lawmaker. The article identifies a range of Treaty provisions that were conceived as limits on the pace and depth of EU integration and reframes these as "legal limits" to ECJ lawmaking. It then reflects on the challenges, opportunities and broader implications associated with operationalizing these provisions as sources of normative restraint on the ECJ's interpretative competence.

Sex, drugs & EU law: The recognition of moral and ethical diversity in EU law

Abstract: This contribution traces the interaction between EU law and national norms that express a certain moral, ethical or cultural value. Such values, which might range from drugs policy to the patentability of human cells, and from the consumption of seal meat to abortion, have something important in common: they ascribe a normative quality to a particular type of life, and typically reflect a communal, political understanding of what is "good". Such norms sit uneasily with the ethos of EU law, in so far that the individual rights guaranteed at the European level serve exactly to limit the externalities of this contractarian conception of political self-determination. This contribution traces these different arguments, their interaction, and the three possible scenarios for their resolution or mediation through the Court's case law: (i) direct normative intervention and Europeanization of the contentious moral or ethical choice; (ii) the insulation of national autonomy; or (iii)balancing through either a substantive or procedural version of the principle of proportionality.

EU migration policy and its constitutional rationale: a cosmopolitan outlook

Abstract: There is much confusion among EU experts about the legal status of third-country nationals. This is hardly surprising, since this uncertainty reflects conceptual tensions at the heart of the European project. Europe's mission of promoting transnational freedom for citizens of the Member States within the single market is not replicated for third-country nationals in the Area of Freedom, Security and Justice. Instead of dismantling borders, EU activities re-confirm the relevance of borders towards third States - both physically through external border controls and legally under the emerging EU immigration and asylum acquis. This article identifies underlying motives and resolves the puzzle by proposing a positive constitutional rationale for the substantive rules of European migration policy. It takes seriously two major reforms brought about by the Lisbon Treaty: the emancipation of migration within the area of freedom, security and justice; and the binding character of the Charter of Fundamental Rights. Both changes help us to understand that EU primary law represents a noteworthy accommodation of countervailing theoretical arguments about the normative foundations of international migration. EU migration law is committed to a "cosmopolitan outlook", which rejects the traditional notion of unfettered sovereign State control without mandating open borders.

Clash of autonomous legal orders: Can EU Member State courts bridge the jurisdictional divide between investment tribunals and the ECJ? A plea for direct referral from investment tribunals to the ECJ

Abstract: Investor-State arbitration based on intra-EU BITs is often seen as a threat to the ECJ's authoritative power of interpretation, because relevant questions of EU law may never reach the ECJ. This, however, is only true if investment treaty arbitration is treated in the same way as commercial arbitration, where arbitral tribunals are not allowed to make preliminary references to the ECJ (see Nordsee and Eco Swiss). This conventional approach, as illustrated by the recent case of Eurekov. Slovak Republic, relies on the supervisory powers of the EU Member State courts in international (commercial) arbitration, focusing on the reviewability of EU public policy. This article argues that the case law of the ECJ could be interpreted in a way that would allow investment tribunals to make direct references for a preliminary ruling. If references from investment tribunals to the ECJ were allowed, as a matter of law, there would be no bypassing of the ECJ and therefore no threat to the EU judicial system. The advantages of the proposed system of direct referral would be that investment tribunals could refer any question of EU law at any stage of the arbitration proceedings. This would enhance the role of EU law and alleviate the risk that any final award eventually proves unenforceable within the EU for breach of EU public policy. This would not only be more efficient but also create legal certainty and better respect investment treaty law and arbitration within the EU.

Addressing rights divergences under the Charter: Melloni

Abstract: A major challenge for the protection of fundamental rights in the EU is that the Member States disagree about these rights’ proper level of protection. Such disagreements can revolve around the issue of which rights are to be protected as fundamental rights, about how they are to be interpreted and about how they are to be balanced against other interests. Such specific national interpretations of fundamental rights can often be seen as the result of a basic societal choice reflective of the nation’s history. A crucial issue is how to deal with these rights divergences in the EU. Whereas the European Convention of Human Rights (ECHR) can be interpreted as a minimum level of protection, in the EU such an approach would conflict with the demands of primacy, uniformity and effectiveness of EU law. In the absence of a total commonality, crucial questions are what standard of protection applies at the supranational level, and whether the Member States should still be able to apply higher national rights standards when a situation falls within the scope of EU law. The judgment of 26 February 2013 in Case-399/11 (Melloni), concerns how this issue is dealt with under the Charter of Fundamental Rights of the European Union (the Charter). The article critically discusses the Court’s judgment in Melloni where this Court clarifies the Charter does not give the Member States the power to apply a higher rights standard when a situation falls within the scope of EU law and where this would contravene the “primacy, unity and effectiveness of Union law”. This result is perhaps unsurprising given the established case law of the ECJ on the matter. However, the Court missed the opportunity to reflect on national constitutional law in its judgment and so enhance the legitimacy of its judgment. The problem with the Court’s interpretation of Article 53 is argued to be a democratic one. With an ever-expanding scope of EU law, and often the inability for Member States to rely on important provisions of national constitutional law within that scope, it is highly important that EU law with an effect on such national standards is adopted as the result of inclusive democratic deliberation. The solution to that problem is primarily a political one. For European courts and the Member States’ courts in particular, the crucial issue is how they can foster democratic deliberation on the values applicable within the framework of EU law.

The new Brussels I Regulation

Abstract: The most important amendments to the Brussels I Regulation adopted on 12 December 2012 are presented and discussed. The amendments concern: 1) arbitration, 2) external situations, 3) choice-of-court agreements, and 4) abolition of exequatur. Compared to the Commission's ambitions, only modest, but probably useful compromises were achieved in respect of arbitration and external situations. For exclusive choice-of-court agreements, an efficient and sophisticated provision based on the Commission's ideas was adopted, and the Commission's primary goal, to abolish exequatur, was also successfully achieved.

Regulatory techniques in consumer protection: A critique of European consumer contract law

Abstract: This Article classifies the consumer protection techniques that European contract law employs into four categories: Mandatory arrangements; disclosure; regulation of entry to and exit from contract; and pro-buyer default rules and contract interpretation. It argues that these techniques are far less likely to succeed than advocates, including the European Commission, believe, and they may bring about unintended consequences and hurt consumers. The techniques and their limits are illustrated through a study of proposed Common European Sales Law (CESL). The Article argues that the ambitious pursuit of consumer protection goals is also likely to interfere with the other main goal of the European contract law: harmonizing the laws of member states, encouraging cross border trade, and improving consumer' access to markets.

Fiscal federalism in the European Union: Evolution and future choices for EMU

Abstract: In order to besustainable as a multilevel system of fiscal and economic governance, EMU faces certain challenges that are common to all federal, multilevel, or fiscally decentralized systems. This paper focuses on three such central challenges: (1) enforcing fiscal discipline; (2) addressing structural inequalities between different euro area economies; and (3) preventing and countering asymmetric shocks. The paper analyses the evolution of the EU's multilevel system of fiscal and economic governance in relation to these three challenges, showing that they have been only partially addressed. If it were to address these obstacles more fully, the EU would face a crucial choice between two ideal models of integration: The "surveillance model", where Member States maintain all taxing power and where the EU is an enforcer of discipline, and the "classic fiscal federalism" model, where the EU acquires an independent sphere of fiscal authority, and thus its own fiscal tools for macroeconomic stabilization. The paper analyses the implications of both models andargues that the surveillance model, when taken to its natural conclusion, poses as much of a threat to Member States' autonomy, and presents us with similar democratic legitimacy problems, as the classic fiscal federalism model.

Intergenerational balance, mandatory retirement and age discrimination in Europe: How can the ECJ better support national courts in finding a balance between the generations?

Abstract: This paper addresses the rather vexed question of intergenerational balance, a balance which has become increasingly more difficult to achieve as a result of the impact of the financial crisis and the demographic crisis in Europe. More particularly, the paper examines the approach of European Union law to the issue of mandatory retirement, an approach which has generally left national courts with the difficult task of balancing the rights of older workers against the claims of younger workers with limited guidance from the ECJ as to how this can be achieved. Through an analysis of the legislative and judicial approach of the European Union and through an examination of the empirical evidence relating to the impact of mandatory retirement policies on intergenerational balance, it is concluded that while the European Union's current approach is justifiable, more specific guidance should be given to national courts to assist them in determining this problematic question. Recommendations as to the scope and content of such guidance are made.

Accession of the EU to the ECHR: the rationale for the ECJ's prior involvement mechanism

Abstract: After having outlined some of the legal implications, as well as some of the main issues raised by the accession of the EU to the ECHR, the paper focuses on the prior involvement mechanism as to situations when the alleged violation involves national judicial proceedings. It seeks to demonstrate that the mechanism does match both the ECHR's features, and the precise conditions imposed by EU primary law on the accession process. It further argues that the prior involvement rule does not require a revision of the EU Treaties. Finally, it is argued that the ECJ's prior involvement mechanism encourages the positive intervention of the ECJ, while recognizing the subsidiary external control of the Strasbourg Court. It seeks to preserve the primary role of both Courts in their respective domains, on the assumption that the protection of human rights requires the two Courts to be not rivals for primacy, but rather complementary partners for progressiveevolution in the interest of improving individual protection. This is, in the author's view, the fundamental rationale for the prior involvement mechanism.

The Court's approach to services (2006-2012): from case law to case load?

Abstract: Under theimpacto the economic and legal development sof the last years, an unprecedented surge of services' cases have transformed the Court's case law into cas eload. Sheern umber scombine with strong diversity: cases touching upon crucial social issues, the delivery of welfare and the definition of citizenship, alternate with cases raising highly technical taxation issues and touching upon procedural specificities of public procurement or of copyright protection. Thearticle puts this case law into context and accounts for its input in the completion of the Internal Market. First, it explores the scope of the rules on services, the way they impinge upon the other EU fundamental freedoms, and the conditions under which they apply to private measures, as well as to purely internal situations; burden of proof issues are also important in this respect. Second, the interplay between the rules on services and other EU policy areas is discussed: fundamental rights, citizenship, services of general economic interest and migration rules either complement or antagonize with the rules on services. Third, the way in which this recent case law has affected essential regulatory means and concepts of the Internal Market, such as mutual recognition and proportionality, is presented. The conclusion drawn is that the increase and trivialization of the Court's case law on services has overstretched the judiciary's capacities in this area, thus calling for some sector-specific regulation; and with it, for fresh and/or alternative means of regulation.

State aid is falling down, falling down: An analysis of the case law on the notion of aid

Abstract: The article looks at the definition of State aid, in the light of recent case law of the EU Courts. There are claims that this case law shows serious shortcomings, is too complex, and reveals a rift between the General Court and the ECJ. In particular the interpretation of the substantive elements forming the notion of aid such 'granted by the state or through state resources' and 'selectivity' is far from clear. The question arises whether State aid control is then possible at all, given the underlying political objectives. Despite some shortcomings the Courts are somehow still managing to maintain a formal approach, in order to meet predictability requirements and legal certainty and at the same allowing a certain degree of flexibility. The case law reaffirms that the interpretation of the notion of aid still aims to preserve free movement and fair competition between States, and to ensure that Member States comply with EU law in terms of transparent economic governance. The efforts by the Courts and the European Institutions, in particular the Commission, in developing consensual rules on policy may still be the best we have so far.

Costs and benefits of an optional European sales law (CESL)

Abstract: This contribution assesses the proposed Common European Sales Law (CESL) and its potential to enter into a fruitful competition with national laws ("Optional Scheme") against the background of a more general theory on vertical regulatory competition - drawing on the much richer theory of horizontal regulatory competition (namely concerned with Delaware). It does so along three lines of arguments: (i) Regulatory vertical competition, on a level playing field, has the potential to combine advantages of centralized rule-setting and decentralized rule-setting, but fails to do so in the case of this proposal. (ii) Regulatory vertical competition is in danger of being distorted by the central rule-setter when this rule setter not only makes one of the offers, but also arranges the conflict of laws rules and potentially even does in a way which favours its own offer - and this has been done in CESL. This kind of distortion of competition leads to the effect that parties may make choices not according to substantive law quality of the set of rules chosen, but because only one set profits from particularly advantageous rules of choice (reduction of transaction costs and economies of scale etc.). Finally, (iii) regulatory vertical competition may potentially lead to positive network effects of such importance that the set of rules proposed by the central rule setter, in fact, even though being optional only discards competitors altogether nevertheless. This may be an explanation of how the Delaware effect works and this may lead to a situation in which the "external competition" of an EU Contract Law - with the national legislatures - is no longer strong enough. Therefore in the last two sections, the question is asked (i) how best to arrange "internal competition" about the best ideas and the best schemes for an EU Contract Law Code and (ii) how to gain time for doing so (interim alternatives which would equally allow to realize most of the benefits which the adoption of CESL is aimed at). Based on all three lines of arguments, the paper strongly favours - as a minimum requirement - the transition for all national laws to an unrestricted home country principle for consumer sales, namely in e-commerce transactions.

Competition law remedies: Striving for coherence or finding new ways?

Abstract: This article discusses current EU Competition law remedies in light of the key parameters termination, compensation, restoration and deterrence. Both public remedies available under Regulation No 1 and private remedies under national law are examined. A first aim is to test the ability of the current body of remedies to achieve effective enforcement, measured against the aforementioned parameters. A second aim is to examine whether there are tensions between different forms of remedies and their respective functions which may impact adversely on effective competition law enforcement. The article identifies several shortcomings, both with regard to the development of specific remedies and coordination between different forms of remedies. It is argued that Article 7 decisions may fill a flexible and prospective function, and that these aspects remain under-developed, partly because of the increased use of Article 9 commitment decisions. Moreover, the author points to a pressing need for better coordination between remedies with different functions. It is particularly argued that private enforcement should be more limited than currently reflected in the ECJ case law, and that it should be better integrated with public enforcement.

Putting services of general economic interest up for tender: Reflections on applicable EU rules

Abstract: The issue of putting "services of general economic interest", also commonly referred to as public services, up for tender is considered problematic for the application of European law. For some decades now, legal qualification of the way services of general economic interest are funded, organized and provided by Member States has been a challenging task for the Court of Justice of the EU and the European Commission. The debate centres on questions of whether the EU rules should provide incentives for Member States, or better still oblige them to put their public services out to a competitive tender and how those rules would affect Member States' wide discretion regarding the provision of these services safeguarded by Protocol (No. 26) on Services of General Interest appended to the Treaties. The current European rules, however, remain ambiguous and at times conflicting on this topic; and although the insistence on Member States' competence to freely organize services of general economic interest is still pervasive, the ongoing law reforms in the field of State aid and public procurement appear to be favourable towards opening public service markets to competition by putting their provision up for tender. Against this background, this paper examines whether there is room in the European legal landscape to resolve the clash between the need to deliver public services as closely as possible to the needs of their consumers as stipulated by the Member States and the need to foster efficiency and open their provision to competition as postulated by the EU in relation to public tendering of those services.

On age discrimination and beating dead dogs: Commission v. Hungary

Abstract: This case about the retirement age of legal officials (judges, prosecutors, and notaries) in Hungary, on the one hand, specifies an important aspect of EU non-discrimination law on the grounds of age and, on the other hand, sheds light on the shortcomings of EU mechanism to combat the rising authoritarianism in this Member State. The annotation first provides a brief outline of the judgement and the view of the Advocate General. It then presents the reflections on the significance of the case against the broader trajectory of political and, subsequently, legal changes in Hungary, especially with regard to the earlier decision of the national Constitutional Court. The analysis goes on to evaluate the consistency of the Court of Justice in its interpretation of non-discrimination provisions in EU secondary law and against the benchmarks of coherence and legal certainty from its previous case law.

Public supply of optional standardized consumer contracts: a rationale for the Common European Sales Law?

Abstract: Byreadingthe B2C partofthe Common European Sales Law (CESL) as a supplyof optional standardizedcontracts, this article tries togive the Commission's proposal the best possible rationale. In contrast to conventional contract codes characterized by loos ebundles of defaul trules the parties may selectively stick to o rdiverge from, an optional standardized contract is a tight bundle of defaul trules with a nameat tachedto it. As optional standardized contract sare simply identifiable by their label, they can theoretically solve the problem of reading costs and thusavoid adverse selection. This idea help stomake sense ofthe rigid internalstructureofthe CESL that generally exclude scherry-picking. From this perspective, itis also un objectionable for the CESL to aimat an up scalesegment of consumers by offering a high level of protection (leading to correspondingly high prices). However, welfare increasing effects can only be expectedif Member States, third States and private organizations are allowed to join the competition by providing other standardized contracts. As theregulatory framework created by the EU (choice-of law restriction for consumer contracts and substantive harmonization of Member State laws) ties down all potential competitors, these effects will not materialize. This leads to the conclusion that the Commissionis not seriously pursuing the idea of an optional law, but ultimately means to pre-empt Member States' lawsw it hits proposal.