Showing papers in "European Law Journal in 2016"
TL;DR: In this paper, the authors examine consequences of the EU's disjoint, schizophrenic and, at times, hypocritical responses to what has become known as the European migration crisis, and explain how unilateral, national-level responses have made the EU as a whole particularly susceptible to a unique brand of coercive bargaining that relies on the threat (or actual generation) of mass population movements as a non-military instrument of state-level coercion.
Abstract: In 2015, over one million refugees and migrants arrived in Europe, laying bare the limitations of the EU's common border control and burden-sharing systems. This article examines consequences of the EU's disjoint, schizophrenic and, at times, hypocritical responses to what has become known as the European migration crisis. It explains how unilateral, national-level responses have made the EU as a whole particularly susceptible to a unique brand of coercive bargaining that relies on the threat (or actual generation) of mass population movements as a non-military instrument of state-level coercion. After outlining who employs this kind of foreign policy tool, to what ends, and under what circumstances, the article offers an illustration of this kind of coercion in action, by analyzing the March 2016 deal between the EU and Turkey. The article concludes with a discussion of broader consequences of the deal and implications both for the displaced and for the EU going forward.
95 citations
TL;DR: In this article, the authors argue that the combined reading of Article 80 TFEU and the Charter of Fundamental Rights provides a strong reason to doubt the constitutionality of the Dublin III Regulation, and any decision reforming the asylum regime should take this view into account.
Abstract: The lack of fairness in asylum responsibility sharing within the EU has been a persistent problem demanding an urgent solution. This article seeks to inform the on-going debate on European solidarity instruments from a constitutional law perspective by taking the principle of solidarity and fair sharing of responsibility pursuant to Article 80 TFEU as its reference point. The article sees this principle as an important mechanism in both the enhancement of fairness in responsibility sharing and the protection of refugees. It argues that the combined reading of Article 80 TFEU and the Charter of Fundamental Rights provides a strong reason to doubt the constitutionality of the Dublin III Regulation, and any decision reforming the asylum regime should take this view into account. Despite its limited enforceability, Article 80 TFEU can play an important role as an interpretation tool, in particular in the assessment of the legality of solidarity instruments.
61 citations
TL;DR: The theory of constitutional pluralism was first developed in the EU context as a way of understanding and defending the absence of a broadly agreed source of final authority in the relationship between national and supranational (EU) legal systems and their respective appellate courts as discussed by the authors.
Abstract: This essay revisits the theory of constitutional pluralism. This theory was first developed in the EU context as a way of understanding and defending the absence of a broadly agreed source of final authority in the relationship between national and supranational (EU) legal systems and their respective appellate courts in the context of the significant increase in supranational jurisdiction around the time of the Maastricht Treaty 25 years ago. The essay argues that the theory of constitutional pluralism remains relevant today, in particular offering better explanatory and justificatory accounts of the EU than any of the singularist (or monist), holist or federalist alternatives. Its continuing relevance, however, depends on a more explicit focus on the political underpinnings of the legal and judicial dimensions of constitutional pluralism than has typically been the case in the literature, and on more detailed consideration of the preconditions, forms and limits of constitutional initiative in the contemporary phase of unprecedented challenge to the legitimacy of the EU.
55 citations
TL;DR: The authors argues that the post-crisis EU requires a quite different normative, institutional and juridical framework, which reproduces the social and political cleavages that underlie authority on the national level and that allow divisive political choices to be legitimised.
Abstract: As the crisis (and the Union's response to it) further develops, one thing appears clear: the European Union post-crisis will be a very different animal from the pre-crisis EU. This article offers an alternative model for the EU's constitutional future. Its objective is to invert the Union's current path-dependency: changes to the way in which the Union works should serve to question, rather than entrench, its future objectives and trajectory. The paper argues that the post-crisis EU requires a quite different normative, institutional and juridical framework. Such a framework must focus on reproducing the social and political cleavages that underlie authority on the national level and that allow divisive political choices to be legitimised. This reform project implies reshaping the prerogatives of the European institutions. Rather than seeking to prevent or bracket political conflict, the division of institutional competences and tasks should be rethought in order to allow the EU institutions to internalise within their decision-making process the conflicts reproduced by social and political cleavages. Finally, a reformed legal order must play an active role as a facilitator and container of conflict over the ends of the integration project.
40 citations
40 citations
TL;DR: The impact of the euro crisis on national parliaments and their response to the deepening of EU fiscal integration and the corresponding limitation of their budgetary autonomy is examined in this article, where the authors argue that the sovereign debt crisis has provoked the emergence of new channels of parliamentary involvement in EU economic governance.
Abstract: This article analyses the impact of the euro crisis on national parliaments and examines their response to the deepening of EU fiscal integration and the correspondent limitation of their budgetary autonomy. It argues that the sovereign debt crisis has provoked the emergence of new channels of parliamentary involvement in EU economic governance. National parliaments have acquired various rights of approval in the European Semester, strengthened the accountability of national governments, reinforced their scrutiny over budgeting, improved their access to information, and created domestic and supranational avenues for deliberation and political contestation of European integration. In these respects, they have undergone further Europeanisation. While these reforms do not outweigh the centralisation of EU powers, they represent an embryonic step in the parliamentary adaptation to the nascent EU fiscal regime. Yet they are unlikely substantially to influence EMU policy-making processes, because of the democratic disconnect inherent in the EU's multilevel constitution.
32 citations
TL;DR: In this paper, the authors trace a disconnect between the rules and narratives on admission and naturalisation of third country nationals in the EU and propose a theoretical bridge between citizenship narratives and immigration narratives.
Abstract: European citizenship entails, for EU nationals, a right to belong across borders. This article questions the implications of this latter right for the status of third country nationals in the EU. It contributes to address a gap between the literature on European citizenship and the literature on the admission and civic integration of third country nationals. The article begins by tracing a disconnect in the rules and narratives on admission and naturalisation of third country nationals in the EU. This is a disconnect between logics of individual rights protection, which European citizenship infiltrates, and logics of state sovereignty and governmental discretion, which otherwise dominate relevant rules and narratives. The article relies on the political science literature on mutual recognition and demoicracy to reinterpret European citizenship's norm of belonging across borders so as to reconcile the disconnect. Ultimately, the theoretical bridge that the article draws between citizenship narratives and immigration narratives offers a novel perspective on the tension between liberal values and integration discourses in Europe. It also sets out a possible frame to begin rethinking rules of engagement and cooperation in the context of the EU common immigration policy.
27 citations
TL;DR: In this article, the authors present the constitutional framework for EU migration law towards third-country nationals and show in how far they depart from the paradigm of intra-European mobility, arguing that differences can be rationalised by divergent objectives and do not present a move towards a Fortress Europe.
Abstract: Migration has become a controversial subject across Europe and beyond. At the same time, the EU has built up an impressive set of rules for third-country nationals over the past two decades, which—unlike the mobility of EU citizens—received comparatively little attention apart from immigration and asylum specialists. This contribution presents the constitutional framework for ‘migration law’ towards third-country nationals and shows in how far they depart from the paradigm of intra-European mobility. It will be argued that differences can be rationalised by divergent objectives and do, nonetheless, not present a move towards ‘fortress Europe’. EU migration law maintains the distinction between citizens and foreigners at the same time as it protects migrants, including refugees. By accommodating migrants' rights and self-government, EU migration law can be construed as an endeavour to replace traditional notions of alienage with constitutional rules with a cosmopolitan outlook.
25 citations
TL;DR: In a realist perspective, this "nativist" turn cannot be ignored, as it might undermine the very idea of EU citizenship While nondiscrimination, as enshrined in the Treaties, should certainly remain the first order principle to defend free movement from a legal and normative point of view, in the present predicament it might be reasonable to complement it with the less demanding principle of "hospitality" as discussed by the authors.
Abstract: Intra-Eu mobility has become increasingly contested Despite empirical evidence showing that migrants are not a burden for the receiving countries, a growing number of voters think that nationals should have priority in terms of jobs and welfare In a realist perspective, this “nativist” turn cannot be ignored, as it might undermine the very idea of EU citizenship While nondiscrimination, as enshrined in the Treaties, should certainly remain the first order principle to defend free movement from a legal and normative point of view, in the present predicament it might be reasonable to complement it with the less demanding principle of “hospitality” Practically, this would mean to give back to Member States a modicum of autonomy in filtering the access to social benefits for inactive or non-resident persons
20 citations
TL;DR: The Spitzenkandidaten experiment has elicited much interest in academic and political circles as a move towards further politicisation of important aspects of EU lawmaking as mentioned in this paper.
Abstract: The Spitzenkandidaten experiment has elicited much interest in academic and political circles as a move towards further politicisation of important aspects of EU lawmaking. This article puts forward a sobering account of the normative and instrumental reasons that explain why these expectations were grounded on shaky premises and the experiment could not have delivered its promises. In particular, the article stresses (1) the failure in creating a channel for political opposition through the indirect election of the President of the Commission; (2) the adoption of a formal understanding of the institutions involved in the process, that is, a conception detached from their social basis and (3) the choice of the wrong institution for the purpose of politicisation. The article concludes with a modest proposal for the consolidation of the channels for political action already available at the level of the Member States.
14 citations
TL;DR: In this paper, the Court of Justice of the European Union (CJE) exercises judicial control over Common Foreign and Security Policy (CFSP) structures and explains how the Court's extended jurisdiction contributes to the juridification, judicialisation and constitutionalisation of the EU's compound CFSP structures.
Abstract: Despite the explicit exclusion of its jurisdiction, the Court of Justice of the European Union exercises judicial control over Common Foreign and Security Policy (CFSP). This article examines and explains how the Court's extended jurisdiction contributes to the juridification, judicialisation and constitutionalisation of the EU's compound CFSP structures. It first lays the groundwork by explaining the link between constitutionalisation and democratic legitimation and setting out the Court's formal jurisdiction over CFSP under Article 40 Treaty on European Union and Articles 218(11) and 275(2) Treaty on the Functioning of the European Union. The centre piece of the article then identifies how the Court's jurisdiction has expanded since the entry into force of the Lisbon Treaty, points at additional ‘substantive’ avenues of judicial review on the basis of access to information and access to justice, and analyses the effects of the Court of Justice of the European Union's extended jurisdiction for CFSP.
TL;DR: In this article, the impact of the 2007-2008 global financial crisis on the adjudication of EU citizenship rights is analyzed, combining long-term quantitative empirical legal study with qualitative socio-legal analysis.
Abstract: This article analyses the impact of the 2007–2008 global financial crisis on the adjudication of EU citizenship rights, combining long-term quantitative empirical legal study with qualitative socio-legal analysis. We find that, first, the Court of Justice of the EU continues to interpret the provisions of the treaty and secondary legislation broadly and reaches largely pro-individual outcomes in its citizenship case-law. Second, it has been more explicit in drawing the line between core citizenship rights of European citizens, such as the primary rights to move and reside freely, and the rights that are tied to these core citizenship rights, including social security and social advantages on the one hand, and the rights of Third Country Nationals, which they derive from their relationship with EU citizens on the other hand. On this basis, we conclude that the economic crisis has had limited impact on EU citizenship law and remained confined to the edges of the notion of EU citizenship.
TL;DR: In this article, the authors analyse the trade-offs between sovereignty, mass politics and economic and monetary union (EMU), employing Rodrik's paradox of globalisation, and argue that only two of the three can coexist.
Abstract: The article analyses trade-offs between sovereignty, mass politics and economic and monetary union (EMU), employing Rodrik's paradox of globalisation. The logic of EMU is incompatible with sovereignty and mass politics—only two of the three can coexist. It is argued that three different answers to the trilemma can be observed in the EU practice. In the initial EMU, integration was limited to safeguard mass politics and sovereignty. Member States were free to set economic policies in response to domestic mass politics. This proved unsustainable. During the crisis, democracy was sacrificed to bolster integration, while sovereignty was maintained. Rules on fiscal discipline and macroeconomic imbalances constrain mass politics, and non-democratic institutions have acquired more prominent roles. Finally, long-term plans for a genuine EMU envisage the strengthening of integration and moving the locus of democracy to the EU level, while weakening sovereignty. The analysis carries implications. If national courts insist on sovereignty and democracy, the likely consequence is an unworkable EMU, damaging the output legitimacy of the EU. The model adopted in the crisis reinforces the elite nature of the EU, undermines democracy at the national level and may bolster political extremism. This leaves the task of building the preconditions for democracy at the European level.
TL;DR: In this article, the authors argue that the EU lacks the necessary socio-political underpinnings for genuine constitutional legitimacy due to the lack of a power-legitimacy nexus in EU public law.
Abstract: This review article offers thoughts on Kaarlo Tuori's recent book, European Constitutionalism, and more particularly on what he calls the ‘disciplinary contest over the legal characterisation of the EU and its law’. As the book's title suggests, Tuori privileges the constitutional perspective in that contest, so much so—he freely admits—that his analysis ‘predetermine[s] how the EU and its law will be portrayed’. And therein also lies the book's main weakness. Tuori's predetermined ‘constitutional’ interpretation, like so much of the dominant legal discourse in the EU today, ultimately obscures the core contradiction in EU public law. National institutions are increasingly constrained in the exercise of their own constitutional authority but supranational institutions are unable to fill the void because Europeans refuse to endow them with the sine qua non of genuine constitutionalism: the autonomous capacity to mobilise fiscal and human resources in a compulsory fashion. The EU's lack of constitutional power in this robust sense derives from the absence of the necessary socio‐political underpinnings for genuine constitutional legitimacy—what we can call the power‐legitimacy nexus in EU public law. To borrow Tuori's own evocative phrase, the EU possesses at best a ‘parasitic legitimacy’ derived from the more robust constitutionalism of the Member States as well as from the positive connotations that using ‘constitutional’ terminology evokes regardless of its ultimate aptness. The result is an ‘as if’ constitutionalism, the core feature of which is an increasingly untenable principal‐agent inversion between the EU and the Member States, one with profound consequences for the democratic life of Europeans. The sustainability of integration over the long term depends on confronting these adverse features of ‘European constitutionalism’ directly, something that legal elites—whether EU judges, lawyers, or legal scholars—ignore at their peril.
TL;DR: In this paper, the authors explore the claim that the four freedoms of the EU lead to the inevitable erosion of the capacity of Member States to collect tax, undermining national systems of welfare and solidarity.
Abstract: In this article we explore the claim that the four freedoms of the EU lead to the inevitable erosion of the capacity of Member States to collect tax, undermining national systems of welfare and solidarity. We argue that European tax integration has undergone a significant change during the last ten years or so, with a judicial, regulatory and legislative response by Union institutions. First, the Court of Justice has recalibrated some of the basic concepts it applies when reviewing the European constitutionality of national tax norms. Second, the Commission has utilised state aid rules to attack targeted tax competition. Third, important legislative initiatives have been adopted or proposed to safeguard Member State taxing capacities. The new phase is influenced by the changed constitutional context of the recent enlargements and the Eurozone crises, which may increase the supply of and demand for tax integration.
TL;DR: In the case of the European Court of Human Rights (ECtHR), it has been shown that the increasing dependency of non-governmental organisations on economic finance will have a deep impact on concentrating and orientating applications towards specific domains and against specific countries.
Abstract: Because of the so-called ‘austerity policies’ implemented by European institutions and national governments entailing substantial public spending cuts, national fundamental rights structures responsible for considering individual petitions and complaints have seen their resources significantly reduced. Similarly, non-governmental organisations (NGOs), which have become specialised in lodging complaints with the European Court of Human Rights, have faced a substantial decrease in their funding. For these reasons, many NGOs active in the protection of human rights seem to have become increasingly dependent for their funding on private foundations led by wealthy financiers who pursue economic, political and judicial objectives that are not always self-evidently compliant with the European standards of fundamental rights protection. The best example is perhaps that of the Open Society Foundations, which funds many NGOs. While scant attention has been paid by scholars to this phenomenon, this increasing dependency of NGOs on ‘economic finance’ will have a deep impact on concentrating and orientating applications towards specific domains and against specific countries. This process could therefore lead to the thwarting of the protection given to certain rights in certain countries that are not seen as priorities for NGOs and private foundations and could seriously compromise the right to make complaints to the ECtHR.
TL;DR: In this article, the discrepancy between internal and external human rights standards has been investigated, focusing on the promotion and protection of freedom of religion or belief, which has become a priority of the EU's foreign policy.
Abstract: The commitment of the EU to the external promotion of the respect for human rights allegedly distinguishes its foreign policy from that of traditional powers. Yet there is the perception that EU's statements are not always consistent with internal practices. This article analyses one set of EU's inconsistencies that has not been sufficiently studied: the discrepancy between internal and external human rights standards. The article focuses on the promotion and protection of freedom of religion or belief, which has become a priority of the EU's foreign policy. It is submitted that the EU's external position generally reflects values common to the Member States, but is sometimes contradicted by the practice of domestic authorities. The human rights standards identified in the EU's foreign policy may arguably serve as a reference for legal reform and the interpretation of fundamental rights in Europe.
TL;DR: In this paper, the authors take an unconventional perspective on Eurosystem monetary policy by asking what kind of redistributive effects it might have had, and they claim that the government bond purchase programmes by the Eurosystem and massive liquidity support to banks could have had redistributeive elements even in a prominent role.
Abstract: This article takes an unconventional perspective on Eurosystem monetary policy by asking what kind of redistributive effects it might have had. Any monetary policy can have redistributive effects as it alters the environment in which economic agents, households and companies, operate. Some benefit and some stand to lose from decisions by the central bank. However, monetary policy generally does not aim at redistributive implications; indeed, in the Euro area context it does not have a mandate to do so. Against this background it is not irrelevant how the large number of Eurosystem monetary policy measures during crises should be assessed. The article claims that in particular the government bond purchase programmes by the Eurosystem and massive liquidity support to banks could have had redistributive elements even in a prominent role. The Eurosystem has become the final guarantor of Member States in trouble and their banking sectors, even reinforcing the link between the two. This focus has potentially pushed the Eurosystem to neglect its primary objective but also its broader implications for the Euro area economy and societies more generally.
TL;DR: In this article, the authors investigate competing understandings of European law and propose a new idea that binds the parts together: to provide for a European legal space rather than further European integration (the ever closer union).
Abstract: The article investigates competing understandings of European law. It supports, against the prevailing EU-centred understanding, an ecumenical concept that embraces EU law, supplementing international instruments, the European Convention on Human Rights and, importantly, various domestic laws enacting or responding to such transnational law, as well as European comparative law. To keep the concept in sync with European politics, it posits a new idea that binds the parts together: to provide for a European legal space rather than further European integration (the ever closer union). This idea can also serve as European law's functional equivalent to forming one legal order. European law thus conceived grasps the puzzling complex of interdependent legal orders, sets a common frame for corresponding reconstructions (European composite constructions, legal pluralism, network theories, federalism or intergovernmentalism) and allows forces with diverging outlooks to meet in one legal field, on one more neutral disciplinary platform. Within this framework, European comparative law finds a new mission as well as a sound legal basis.
TL;DR: In this article, the authors examine the social function of contract law, based on the observation that contract law is a means of allocating welfare in a political economy in which the welfare state is in retreat.
Abstract: The high numbers of over-indebtedness and of evictions in Europe since the financial crisis have highlighted the need to re-think the role that mortgage credit plays for societies This contribution examines the social function of contract law, based on the observation that contract law is a means of allocating welfare in a political economy in which the welfare state is in retreat The claim asserted in this article is that EU law in the field of mortgages does not fulfil its social function because it is based on a formalistic understanding of contract law In order to close the protective gap brought about by a shift in the allocation of welfare from public provision to private markets without altering the understanding of contracts, the proposal is to follow the cooperative contract model of contracts as social cooperation This approach allows for an assessment of fairness that acknowledges the long-term character of mortgage contracts and the ensuing need to distribute market risks between both contracting parties
TL;DR: In this article, the authors analyzed the relationship between the freezing of the budget of the Council of Europe, the introduction of new management techniques to increase productivity and the reforms of the European Court of Human Rights to increase the number of cases solved (and at the speed at which they are solved).
Abstract: This article analyses the relationship between the freezing of the budget of the Council of Europe, the introduction of ‘new management’ techniques to increase productivity and the reforms of the European Court of Human Rights to increase the number of cases solved (and at the speed at which they are solved). To what extent has the the drive to reduce cost had an impact on the evolution of the European Convention of Human Rights? Detailed attention is paid to the preparatory works of both the successful and the unsuccessful reforms of the European system of human rights, other relevant documents of the Council of Europe. Several key institutional actors were interviewed. It is concluded that financial cuts imposed on the budget of the Council of Europe have saved the Court (to a certain extent) but have significantly damaged the European system of human rights.
TL;DR: The authors showed that the Greek debt crisis was generated by a transformation of purely private debt into public debt, and that the process by which the debt was transformed, as well as the post-crisis bailout were odious, illegal and illegitimate.
Abstract: Unlike the popular narrative, which suggests that the Greek debt crisis was the result of lavish spending, this article demonstrates that the ‘crisis’ was generated by a transformation of purely private debt into public debt. This finding is supported by the preliminary report of the Greek Parliamentary Committee on the Truth of the Greek Debt, which clearly showed that the exponential increase of private debt in Greece risked the collapse of the private financial institutions exposed to it, namely Greek, French and German banks. This resulted in pressure on the Greek government to recapitalise and nationalise Greek banks through Eurozone and IMF funding. This funding, which came to be known as ‘bailout for Greece’ was nothing more than the rescue of private banks through EU taxpayers' money, only 5% of which went into the Greek economy. The article shows that the process by which the debt was transformed, as well as the post‐crisis bailout were odious, illegal and illegitimate and the ensuing debt itself was unsustainable and wholly against fundamental human rights.
TL;DR: In this paper, Baquero Cruz analyzes the implications of constitutional pluralism for the legal system of the European Union and the practice of law in the Member States of the EU.
Abstract: Constitutional pluralism is a theory, or movement, or idea, for some perhaps even an ideal, about the relationship between the legal system of the European Union and those of its Member States. In this paper, Julio Baquero Cruz analyses its assumptions and implications in the light of historical experience and of the consequences it could have for the practice of law in Europe. To do so, constitutional pluralism is compared with the other main positions about that relationship: the national constitutional position and the position of Union law.
TL;DR: In this paper, the authors look back in history to understand how private debt developed into the kind of tradable asset, or commodity, that it is today, and they distinguish three discrete but overlapping modes of commodification, namely propertification, impersonalization and risk abstraction.
Abstract: This article looks back in history to understand how private debt developed into the kind of tradable asset, or commodity, that it is today. The article theorises that development, distinguishing in it three discrete but overlapping modes of commodification, namely propertification, impersonalisation and risk abstraction. The three modes shed light on changes in debt as a legal institution and in the economic and social functions of debt. Finally, the article shows that commodification of private debt is not just a phenomenon of the past, but something to be taken into account in future law-making, where the three modes of commodification may help to recognise particular opportunities and risks. This is illustrated by two actions included in the Commission's Capital Markets Union project, one regarding cross-border assignments of claims, the other the European securitisation market.
TL;DR: In this paper, the authors argue that the genuine enjoyment formula is not only setting an innovative jurisdictional test concerning European citizenship rights, but also highlighting how the traditional account of citizenship can be conceptually reversed.
Abstract: This paper deals with the question: Who ought not to be excluded from the enjoyment of European citizenship rights? Recently, the Court of Justice has ruled that, in exceptional situations, the ‘genuine enjoyment of the substance of rights attaching to European citizenship’ can be invoked in order to also extend legal protection to specific categories of third country nationals. I will argue that the ‘genuine enjoyment’ formula is not only setting an innovative jurisdictional test concerning European citizenship rights, but that it is also highlighting how the traditional account of citizenship (from status to rights) can be conceptually reversed. This happens in threshold cases, where the tenability of the schema of distribution of rights, agreed within a political community, depends on the possibility to readjust the boundaries of political membership.
TL;DR: A comparative law exercise devoted to studying how different European legal systems resolved analogous social problems, so as to demonstrate the existence of value convergence and of a common core of general contract law in Europe is presented in this article.
Abstract: • At the onset of Europeanisation, the discussion on private law followed two main paths. The first one was initially carved by a comparative law exercise devoted to studying how different European legal systems resolved analogous social problems, so as to demonstrate the existence of value convergence and of a common core of general contract law in Europe.3 The second path was forged by legal scholars analysing the positive law produced by the European Union with the most direct impact on national private law systems. 4 When the European Union project was seen to be at the height of both its success and its ambition, these two paths were merged to explore the possibility of codifying a common set of rules on contract law,5 leading to another academic exercise, which received political attention.
TL;DR: In this paper, the authors trace the changing role of competition and its effects on private law in three different stages of the Internal Market project: (1) the promotion of competition in the original Internal Market both via contracts (competitive contract law) and through competition among legal orders (Common European Sales Law); (2) the suspension of competition, in the face of financial crisis; and (3) the revitalisation of competition.
Abstract: This paper traces the changing role of competition and its effects on private law in three different stages of the Internal Market project: (1) the promotion of competition in the original Internal Market both via contracts (competitive contract law) and through competition among legal orders (Common European Sales Law); (2) the suspension of competition in the face of financial crisis; and (3) the revitalisation of competition in the Digital Single Market. Private law—broadly understood as regulatory private law—is being deployed to achieve competing, if not conflicting, policy goals. At this stage, it is not possible, nor would it be desirable, to provide a coherent account of these phenomena. Clear‐cut overarching values cannot be identified either. Transformation through competition is just another take on European experimentalism.
TL;DR: In this article, the authors argue that EU administrative law is failing in some of its crucial tasks: finding a balance between administrative convergence and administrative diversity within the EU legal system, structuring administrative power and its exercise, governing administrative instability.
Abstract: Beneath the surface of steady changes in EU administrative law lurk a number of long‐term, structural problems. In this article, I argue that, because of these structural problems, EU administrative law is failing in some of its crucial tasks: (1) finding a balance between administrative convergence and administrative diversity within the EU legal system, (2) structuring administrative power and its exercise, (3) governing administrative instability. EU administrative law, however, is not necessarily trapped in the status quo. By identifying and articulating a number of long‐term problems, this article aims at providing some tools that future research could use in the discussion on the possible ways forward. More generally, it suggests that EU administrative law should be reshaped as a project of institutional design.
TL;DR: In this paper, a sociological framework is used to trace the evolutionary path of free movement of persons as it fluctuates between "commodification" and "decommodification".
Abstract: ‘Organised solidarity’ of a mediated legal form constitutes the backbone of the modern welfare state built on solidarity between strangers The interplay between the single market and the national social systems is key in defining who owes what to whom under the ‘transnationalised’ European solidarity Free movement rights have increased the ‘entanglement’ of national social systems' revenue and expenditure sides, considered to jeopardise their steering capacity As a corollary to free movement, transnational solidarity does not take place beyond or between national welfare states, but rather within: as solidarity with strangers Here transnational solidarity is applied by way of a sociological framework to trace the evolutionary path of free movement of persons as it fluctuates between ‘commodification’ and ‘decommodification’ Against that backdrop, this article reviews whether a paradigm shift is currently promoted as to the question where solidarity with strangers begins and ends
TL;DR: The main strength of ERPL is that it offers an entirely new perspective on European private law as mentioned in this paper, but as a complete theory of private law, it is too one-sided, both from a descriptive and from a normative point of view.
Abstract: This paper critically engages with the European Regulatory Private Law thesis (ERPL). The main strength of ERPL is that it offers an entirely new perspective on European private law. However, as a complete theory of European private law, ERPL is too one-sided, both from a descriptive and from a normative point of view. With its strong focus on the private law locked up in regulatory silos for specific market sectors, it obscures the reality of the consumer acquis and its transformative force. A fuller picture would include the contours of a loosely coherent system of European private law that is currently emerging. The main pillars of that pragmatic system are (for now) the withdrawal rights, unfair term control, and remedies for nonconformity. Moreover, the contribution of European private law to access justice cannot be the only standard for its evaluation and critique; at least as important are interpersonal justice and democratic legitimacy.