This article examines the transformation of the role of the European Commission and the European Central Bank (ECB) in the context of the Economic and Monetary Union (EMU), from institutions acting within the EU institutional framework, to actors taking on new tasks in the realm of international law as part of the structure of the European Stability Mechanism (ESM). It expounds the legal framework applying to the two institutions in the ESM by analysing the currently applicable legislation as well as recent case law of the Court of Justice of the European Union (CJEU) (Ledra and Mallis). It argues that the applicable legal framework remains underdeveloped and unclear, especially with regard to the obligations incumbent on the ECB in the ESM, which have not yet been examined by the EU courts. Exploring the main challenges resulting from the ambiguity of the tasks and obligations conferred on the two EU institutions in the ESM, the article argues that all EU law applies in principle to the activities of the EU institutions in the ESM. It then shifts the focus to political and legal accountability, the emphasis being on direct and indirect actions before the CJEU, including the vexed issue of liability of the EU institutions for damages caused by their actions in the ESM. The article concludes with a forward-looking assessment in light of the Five Presidents’ Report on Completing the EMU, which stipulates that the governance of the ESM should be integrated within the framework of EU law. The article questions whether a future incorporation of the ESM’s governance in EU law could address any of the challenges resulting from the current uncertainty about the role and potential liability of the Commission and the ECB for their actions in the ESM, and makes a number of recommendations as to how the ESM should be incorporated into EU law.
{"title":"What Role for the Commission and the ECB in the European Stability Mechanism?","authors":"Anastasia Karatzia, Menelaos Markakis","doi":"10.4337/cilj.2017.02.07","DOIUrl":"https://doi.org/10.4337/cilj.2017.02.07","url":null,"abstract":"This article examines the transformation of the role of the European Commission and the European Central Bank (ECB) in the context of the Economic and Monetary Union (EMU), from institutions acting within the EU institutional framework, to actors taking on new tasks in the realm of international law as part of the structure of the European Stability Mechanism (ESM). It expounds the legal framework applying to the two institutions in the ESM by analysing the currently applicable legislation as well as recent case law of the Court of Justice of the European Union (CJEU) (Ledra and Mallis). It argues that the applicable legal framework remains underdeveloped and unclear, especially with regard to the obligations incumbent on the ECB in the ESM, which have not yet been examined by the EU courts. Exploring the main challenges resulting from the ambiguity of the tasks and obligations conferred on the two EU institutions in the ESM, the article argues that all EU law applies in principle to the activities of the EU institutions in the ESM. It then shifts the focus to political and legal accountability, the emphasis being on direct and indirect actions before the CJEU, including the vexed issue of liability of the EU institutions for damages caused by their actions in the ESM. The article concludes with a forward-looking assessment in light of the Five Presidents’ Report on Completing the EMU, which stipulates that the governance of the ESM should be integrated within the framework of EU law. The article questions whether a future incorporation of the ESM’s governance in EU law could address any of the challenges resulting from the current uncertainty about the role and potential liability of the Commission and the ECB for their actions in the ESM, and makes a number of recommendations as to how the ESM should be incorporated into EU law.","PeriodicalId":121229,"journal":{"name":"European Public Law: National eJournal","volume":"122 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-11-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132538194","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The purpose of this article is to show that federalism provides a better understanding of what the EU is, the nature of the challenges facing it, and the realm of possible solutions than do alternative conceptions such as multilevel governance. First, some important distortions about the EU and federalism in the EU studies literature need to be cleared up, before developing a new federal conception of the EU, that of a ‘poly-cephalous’ or multi-headed federation. A poly-cephalous federation is not only deeply contested; it is a highly unstable system, in particular when facing the types of challenges that the EU has faced since the global economic crisis of 2008. In the final section, the article looks at a full-fledged pluralistic federation with poly-cephalous traits, namely Canada that, since the 1980s, has greatly modified its poly-cephalous features with democratic effects. The article identifies a set of lessons for the EU from Canada's experience.
{"title":"European Federalism: Pitfalls and Possibilities","authors":"J. Fossum","doi":"10.1111/eulj.12250","DOIUrl":"https://doi.org/10.1111/eulj.12250","url":null,"abstract":"The purpose of this article is to show that federalism provides a better understanding of what the EU is, the nature of the challenges facing it, and the realm of possible solutions than do alternative conceptions such as multilevel governance. First, some important distortions about the EU and federalism in the EU studies literature need to be cleared up, before developing a new federal conception of the EU, that of a ‘poly-cephalous’ or multi-headed federation. A poly-cephalous federation is not only deeply contested; it is a highly unstable system, in particular when facing the types of challenges that the EU has faced since the global economic crisis of 2008. In the final section, the article looks at a full-fledged pluralistic federation with poly-cephalous traits, namely Canada that, since the 1980s, has greatly modified its poly-cephalous features with democratic effects. The article identifies a set of lessons for the EU from Canada's experience.","PeriodicalId":121229,"journal":{"name":"European Public Law: National eJournal","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130337560","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The European Union has been in crisis mode for a decade now. Both the global economic and financial crisis of 2009 and, more recently, the so‐called “refugee crisis” have clearly revealed the serious institutional misalignments of the EU, its absence of intergovernmental solidarity, and the fragility of a European construction that has achieved little more than the creation of a common market. The EU's failure to successfully meet these challenges has led to a serious crisis of confidence, triggering widespread popular distrust of the EU and its institutions and suspiciousness towards politics and political decisions in general. At the same time, and somewhat paradoxically, Europeans still express support for the EU; furthermore, there are tangible shows of solidarity between European citizens. Thus, contrary to the common assumption, the lack of social integration matters considerably less than institutional misalignment and a failing process of system integration in accounting for the EU's current crises and challenges. Thus it seems important to look more closely at the type of social integration involved, given the uncertain institutional supports. The question facing Europe today is what kind of trust and affective European attitude and sense of belonging that will sustain over time
{"title":"Beyond the Crisis: The Societal Effects of the European Transformation","authors":"Monika Eigmüller","doi":"10.1111/eulj.12258","DOIUrl":"https://doi.org/10.1111/eulj.12258","url":null,"abstract":"The European Union has been in crisis mode for a decade now. Both the global economic and financial crisis of 2009 and, more recently, the so‐called “refugee crisis” have clearly revealed the serious institutional misalignments of the EU, its absence of intergovernmental solidarity, and the fragility of a European construction that has achieved little more than the creation of a common market. The EU's failure to successfully meet these challenges has led to a serious crisis of confidence, triggering widespread popular distrust of the EU and its institutions and suspiciousness towards politics and political decisions in general. At the same time, and somewhat paradoxically, Europeans still express support for the EU; furthermore, there are tangible shows of solidarity between European citizens. Thus, contrary to the common assumption, the lack of social integration matters considerably less than institutional misalignment and a failing process of system integration in accounting for the EU's current crises and challenges. Thus it seems important to look more closely at the type of social integration involved, given the uncertain institutional supports. The question facing Europe today is what kind of trust and affective European attitude and sense of belonging that will sustain over time","PeriodicalId":121229,"journal":{"name":"European Public Law: National eJournal","volume":"49 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114914381","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
How does a treaty‐based organisation account for its shifts in policy and procedure? With the European Union's history in focus, the paper observes a pattern of evolution by which departures from existing practice are justified as moves to better honour commitments already held. This logic of change‐as‐fidelity has long been the usual way of doing transnational politics in post‐war Europe. The concept of revisionism, borrowed from the study of innovation in purposive organisations more generally, elucidates its place in the early European Community. The paper goes on to examine how more recent developments, especially visible in the Euro crisis, challenge this logic of change and threaten to displace it. It concludes by discussing what this implies for the political nature of the EU, and whether the revival of the revisionist method is plausible or desirable
{"title":"Revisionism as a Logic of Institutional Change","authors":"Jonathan White","doi":"10.1111/eulj.12233","DOIUrl":"https://doi.org/10.1111/eulj.12233","url":null,"abstract":"How does a treaty‐based organisation account for its shifts in policy and procedure? With the European Union's history in focus, the paper observes a pattern of evolution by which departures from existing practice are justified as moves to better honour commitments already held. This logic of change‐as‐fidelity has long been the usual way of doing transnational politics in post‐war Europe. The concept of revisionism, borrowed from the study of innovation in purposive organisations more generally, elucidates its place in the early European Community. The paper goes on to examine how more recent developments, especially visible in the Euro crisis, challenge this logic of change and threaten to displace it. It concludes by discussing what this implies for the political nature of the EU, and whether the revival of the revisionist method is plausible or desirable","PeriodicalId":121229,"journal":{"name":"European Public Law: National eJournal","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115032525","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The ‘turn to corporatism’ in the interwar period implied an erosion of the fragile institutionalisation of legally‐constituted public power due to its suspension of the legal infrastructure of society and the concomitant breakdown of the distinction between the public and private realms of society. The dual (trans‐)national re‐constitution of Western Europe in the years immediately after the Second World War, which the European integration process was an integrated part of, successfully remedied this development. However, over the last decades, Europe has experienced a ‘turn to governance’, which also implies an erosion of the distinction between the public and private realms, and increasingly challenges the normative integrity and functional capacity of law. This development has been further reinforced by the new post‐crisis legal and institutional architecture of the EU as it implies the emergence of a ‘dual Union’ partly based upon formality and partly upon informality and an increased suspension of open‐ended democratic decision‐making
{"title":"European Crises of Legally‐Constituted Public Power: From the ‘Law of Corporatism’ to the ‘Law of Governance’","authors":"Poul F. Kjaer","doi":"10.1111/eulj.12230","DOIUrl":"https://doi.org/10.1111/eulj.12230","url":null,"abstract":"The ‘turn to corporatism’ in the interwar period implied an erosion of the fragile institutionalisation of legally‐constituted public power due to its suspension of the legal infrastructure of society and the concomitant breakdown of the distinction between the public and private realms of society. The dual (trans‐)national re‐constitution of Western Europe in the years immediately after the Second World War, which the European integration process was an integrated part of, successfully remedied this development. However, over the last decades, Europe has experienced a ‘turn to governance’, which also implies an erosion of the distinction between the public and private realms, and increasingly challenges the normative integrity and functional capacity of law. This development has been further reinforced by the new post‐crisis legal and institutional architecture of the EU as it implies the emergence of a ‘dual Union’ partly based upon formality and partly upon informality and an increased suspension of open‐ended democratic decision‐making","PeriodicalId":121229,"journal":{"name":"European Public Law: National eJournal","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128439157","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In an earlier article I charted the legal and political events from David Cameron’s Bloomberg speech in 2013 until the outcome of the referendum, including the beginning of the legal challenge to the way in which Article 50 TEU could be triggered. This article continues the story, covering the period after the referendum to the present. The approach in the earlier article is preserved, employing the metaphor of an unfolding drama, with Shakespearian quotations appropriately chosen for each Act or Scene. This article therefore begins with Act 7, following on from Act 6 of the previous piece. Act 7 is entitled ‘In Search of a Negotiating Strategy’, and is divided into three scenes. It introduces the leading political ‘players’ in the UK, the EU and the capitals of prominent EU Member States that shaped political developments over this period, and will continue to do so during the Brexit negotiations. The analysis then shifts to evolution of the ‘plan’, connoting choice between a hard or soft Brexit strategy, how this unfolded over the Autumn of 2016 and was clarified in the Spring of 2017. The final scene of this Act focuses on the fact that the Brexit plan as it evolved in Westminster was intended to be a ‘plan for the UK’, in which the devolved parliaments and assemblies would have voice. There was, however, a significant mismatch between Westminster rhetoric and political reality, and the views of the devolved assemblies were largely ignored both substantively and procedurally. Act 8 is entitled ‘In Search of the Exit Trigger’. At the same time as the UK government was deliberating on its Brexit negotiating strategy, it was fighting a legal battle of its own making to ascertain the constitutional legal requirements for triggering Article 50 TEU. The government contended that this could be done through recourse to the prerogative, without seeking authority from Parliament. The claimants contested this assumption. The claimants won and the government lost, both in the Divisional Court and in the Supreme Court. The first scene of this Act, ‘the legal’, provides an overview of the central legal and constitutional arguments in the case. The second scene, ‘the political’, stands back and looks at the broader picture, arguing that this was a legal fight that the government was always likely to lose and never had to fight. The discussion concludes with reflection as to why the House of Commons was quiescent when afforded the opportunity for voice by the courts. Act 9 continues the motif of search, being entitled ‘In Search of an Agreement’. The story picks up after the formal triggering of Article 50, beginning with the first scene, ‘reaction’, connoting the response of the EU to the Prime Minister’s letter triggering Article 50. The ink was barely dry on this letter, when she lost the first round of the negotiations. The UK had argued strenuously that discussion concerning withdrawal and future trade should proceed in parallel. This was rejected by
{"title":"Brexit, A Drama: The Interregnum","authors":"P. Craig","doi":"10.1093/YEL/YEX005","DOIUrl":"https://doi.org/10.1093/YEL/YEX005","url":null,"abstract":"In an earlier article I charted the legal and political events from David Cameron’s Bloomberg speech in 2013 until the outcome of the referendum, including the beginning of the legal challenge to the way in which Article 50 TEU could be triggered. This article continues the story, covering the period after the referendum to the present. The approach in the earlier article is preserved, employing the metaphor of an unfolding drama, with Shakespearian quotations appropriately chosen for each Act or Scene. This article therefore begins with Act 7, following on from Act 6 of the previous piece. \u0000Act 7 is entitled ‘In Search of a Negotiating Strategy’, and is divided into three scenes. It introduces the leading political ‘players’ in the UK, the EU and the capitals of prominent EU Member States that shaped political developments over this period, and will continue to do so during the Brexit negotiations. The analysis then shifts to evolution of the ‘plan’, connoting choice between a hard or soft Brexit strategy, how this unfolded over the Autumn of 2016 and was clarified in the Spring of 2017. The final scene of this Act focuses on the fact that the Brexit plan as it evolved in Westminster was intended to be a ‘plan for the UK’, in which the devolved parliaments and assemblies would have voice. There was, however, a significant mismatch between Westminster rhetoric and political reality, and the views of the devolved assemblies were largely ignored both substantively and procedurally. \u0000Act 8 is entitled ‘In Search of the Exit Trigger’. At the same time as the UK government was deliberating on its Brexit negotiating strategy, it was fighting a legal battle of its own making to ascertain the constitutional legal requirements for triggering Article 50 TEU. The government contended that this could be done through recourse to the prerogative, without seeking authority from Parliament. The claimants contested this assumption. The claimants won and the government lost, both in the Divisional Court and in the Supreme Court. The first scene of this Act, ‘the legal’, provides an overview of the central legal and constitutional arguments in the case. The second scene, ‘the political’, stands back and looks at the broader picture, arguing that this was a legal fight that the government was always likely to lose and never had to fight. The discussion concludes with reflection as to why the House of Commons was quiescent when afforded the opportunity for voice by the courts. \u0000Act 9 continues the motif of search, being entitled ‘In Search of an Agreement’. The story picks up after the formal triggering of Article 50, beginning with the first scene, ‘reaction’, connoting the response of the EU to the Prime Minister’s letter triggering Article 50. The ink was barely dry on this letter, when she lost the first round of the negotiations. The UK had argued strenuously that discussion concerning withdrawal and future trade should proceed in parallel. This was rejected by ","PeriodicalId":121229,"journal":{"name":"European Public Law: National eJournal","volume":"118 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-08-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131122761","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Ten years ago, EU Competition law transitioned from a system of centralized enforcement managed by the European Commission to a decentralized domain regulated by multiple institutional actors situated at both national and supranational level. With this development, the need for usage of non-conventional regulatory instruments grew. This is where soft law presented itself as an opportunity to fill the substantive core of the regulatory domain. This development does not only reflect the impossibility for creating hard and fast legal rules between multiple actors; in the EU Competition law domain – the field which regulates business behavior within the EU – there is also inherent uncertainty about how markets will react to regulation in the form of hard legal rules. Thus, soft law in its non-binding and flexible nature offered a convenient solution; however, it also presented the enforcement regime with a significant obstacle. Since soft law is non-legally binding, the provisions of those instruments cannot be relied upon in courts of law. Thus, when a competition law dispute reaches a national court of an EU Member State, the odds are high that parties would experience difficulties in asserting their rights since their claims are highly likely to be based on, or to involve soft law instruments. This paper therefore takes an empirical look at the judicial handling of competition claims involving competition soft law in Germany and France, and tracks the way in which national courts engage with such claims.
{"title":"The Judicial Reception of Competition Soft Law in France and Germany","authors":"Z. Georgieva","doi":"10.2139/ssrn.2887982","DOIUrl":"https://doi.org/10.2139/ssrn.2887982","url":null,"abstract":"Ten years ago, EU Competition law transitioned from a system of centralized enforcement managed by the European Commission to a decentralized domain regulated by multiple institutional actors situated at both national and supranational level. With this development, the need for usage of non-conventional regulatory instruments grew. This is where soft law presented itself as an opportunity to fill the substantive core of the regulatory domain. This development does not only reflect the impossibility for creating hard and fast legal rules between multiple actors; in the EU Competition law domain – the field which regulates business behavior within the EU – there is also inherent uncertainty about how markets will react to regulation in the form of hard legal rules. Thus, soft law in its non-binding and flexible nature offered a convenient solution; however, it also presented the enforcement regime with a significant obstacle. Since soft law is non-legally binding, the provisions of those instruments cannot be relied upon in courts of law. Thus, when a competition law dispute reaches a national court of an EU Member State, the odds are high that parties would experience difficulties in asserting their rights since their claims are highly likely to be based on, or to involve soft law instruments. This paper therefore takes an empirical look at the judicial handling of competition claims involving competition soft law in Germany and France, and tracks the way in which national courts engage with such claims.","PeriodicalId":121229,"journal":{"name":"European Public Law: National eJournal","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-12-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116777307","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Greek constitutional law on the conclusion of treaties and their incorporation into domestic law has triggered heated debates among scholars and politicians. Since the 1975 major constitutional revision, it has seemed that only the last few years has the state mechanism achieved an acceptable level of consistency in applying the process. Nevertheless, the relevant constitutional provisions continue to be far from clear, on more than one point. Systematizing the process through the inclusion of unambiguous verbiage will help resolve unnecessary discrepancies between theory and practice, caused by inconsistent, interchangeable and ultimately unqualified use of jargon. This article discusses the main provisions of the Greek constitution on this topic, as they currently stand. These are articles 28.1, 36.1 and 36.2 of the 1975 constitution. An English translation of these articles is included at the end of this publication.
{"title":"Treaty Conclusion & Incorporation into Greek Law: A Brief Discussion of the Constitutional Requirements","authors":"D. Dimitrakos","doi":"10.2139/ssrn.2871553","DOIUrl":"https://doi.org/10.2139/ssrn.2871553","url":null,"abstract":"Greek constitutional law on the conclusion of treaties and their incorporation into domestic law has triggered heated debates among scholars and politicians. Since the 1975 major constitutional revision, it has seemed that only the last few years has the state mechanism achieved an acceptable level of consistency in applying the process. Nevertheless, the relevant constitutional provisions continue to be far from clear, on more than one point. Systematizing the process through the inclusion of unambiguous verbiage will help resolve unnecessary discrepancies between theory and practice, caused by inconsistent, interchangeable and ultimately unqualified use of jargon. This article discusses the main provisions of the Greek constitution on this topic, as they currently stand. These are articles 28.1, 36.1 and 36.2 of the 1975 constitution. An English translation of these articles is included at the end of this publication.","PeriodicalId":121229,"journal":{"name":"European Public Law: National eJournal","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-11-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129930129","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Scotland is the first jurisdiction in the world to introduce a minimum price per unit of alcohol to reduce consumption. The relevant industry did not hesitate to challenge this new alcohol control policy before courts. The ensuing judgment contains a wealth of insights stemming from regulatory autonomy to proportionality review. What is the role of a national court in the review of national measures restricting free movement? In particular, how should it review the proportionality of those measures when adopted on public health grounds, and on the basis of what evidence? What is the burden of proof that the relevant Member State must discharge? Those are essentially the questions referred by a Scottish court to the Court of Justice when called upon to determine the compatibility with EU law of Minimum Unit Prices for alcohol introduced by the Scottish Government. Although rather recurrent in the Court’s free movement case law, the question of the standard of review, and corresponding burden of proof epitomises the struggle currently faced by national courts in striking the right balance between the proper functioning of the market and due recognition and protection of national regulatory autonomy. As such, this preliminary reference offered an opportunity to address “the information gap on what the Court of Justice expects defendant States to establish” in order to justify their measures under the proportionality stages of free movement analysis. But there is more. This case also raises deeper epistemic and methodological questions faced by any court of law when asked to review the proportionality, and in particular the necessity, of an individual policy intervention that belongs to a wider ‘political strategy’. Indeed, those strategies – as exemplified in the present case by the Scottish policy designed to combat the devastating effects of alcohol – generally entail the enactment of a full ‘regulatory mix’ of policy interventions. In those circumstances, how can we pinpoint the effect of a given policy option when it is part of a set of measures? How can we distinguish the effect, in terms of health gains deriving from a drop in alcohol consumption, to be ascribed to the introduction of MUP when such a measure coexists with other measures (more than 40 in Scotland) that have been introduced? And what when the contested measure has never been tested before? While this judgment confirms the gradual empirical turn made by the Court in its own review of the proportionality of national restrictive measures, it also provides some pragmatic guidance on how national courts may realistically engage in that review. Given the growing number of Member States ready to experiment with new policies aimed at tackling inter alia lifestyle risk factors, such as tobacco use, harmful consumption of alcohol and unhealthy diets, this appears as welcome development. Ultimately, the ensuing number of national restrictive measures of trade enacted on public health groun
{"title":"Balancing Free Movement and Public Health: The Case of Minimum Unit Pricing of Alcohol in Scotch Whisky","authors":"A. Alemanno","doi":"10.2139/ssrn.2803165","DOIUrl":"https://doi.org/10.2139/ssrn.2803165","url":null,"abstract":"Scotland is the first jurisdiction in the world to introduce a minimum price per unit of alcohol to reduce consumption. The relevant industry did not hesitate to challenge this new alcohol control policy before courts. The ensuing judgment contains a wealth of insights stemming from regulatory autonomy to proportionality review. What is the role of a national court in the review of national measures restricting free movement? In particular, how should it review the proportionality of those measures when adopted on public health grounds, and on the basis of what evidence? What is the burden of proof that the relevant Member State must discharge? Those are essentially the questions referred by a Scottish court to the Court of Justice when called upon to determine the compatibility with EU law of Minimum Unit Prices for alcohol introduced by the Scottish Government. Although rather recurrent in the Court’s free movement case law, the question of the standard of review, and corresponding burden of proof epitomises the struggle currently faced by national courts in striking the right balance between the proper functioning of the market and due recognition and protection of national regulatory autonomy. As such, this preliminary reference offered an opportunity to address “the information gap on what the Court of Justice expects defendant States to establish” in order to justify their measures under the proportionality stages of free movement analysis. But there is more. This case also raises deeper epistemic and methodological questions faced by any court of law when asked to review the proportionality, and in particular the necessity, of an individual policy intervention that belongs to a wider ‘political strategy’. Indeed, those strategies – as exemplified in the present case by the Scottish policy designed to combat the devastating effects of alcohol – generally entail the enactment of a full ‘regulatory mix’ of policy interventions. In those circumstances, how can we pinpoint the effect of a given policy option when it is part of a set of measures? How can we distinguish the effect, in terms of health gains deriving from a drop in alcohol consumption, to be ascribed to the introduction of MUP when such a measure coexists with other measures (more than 40 in Scotland) that have been introduced? And what when the contested measure has never been tested before? While this judgment confirms the gradual empirical turn made by the Court in its own review of the proportionality of national restrictive measures, it also provides some pragmatic guidance on how national courts may realistically engage in that review. Given the growing number of Member States ready to experiment with new policies aimed at tackling inter alia lifestyle risk factors, such as tobacco use, harmful consumption of alcohol and unhealthy diets, this appears as welcome development. Ultimately, the ensuing number of national restrictive measures of trade enacted on public health groun","PeriodicalId":121229,"journal":{"name":"European Public Law: National eJournal","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125325566","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Russian Abstract: Изложены предложения по проекту федерального закона об основах государственного управления в Российской Федерации, основанные на дополненной Концепции данного законопроекта. Предложения содержат структуру разрабатываемого законопроекта и требования к его основному содержанию.English Abstract: Suggestions on the draft of the federal law on the fundamentals of public administration in the Russian Federation, based on augmented Concept of the bill, are proposed. Proposals contain a structure developed by the bill and the requirements for its main content.
{"title":"Предложения По Проекту Федерального Закона Об Основах Государственного Управления в Российской Федерации (Proposals on the Federal Law Draft on the Fundamentals of Public Administration in the Russian Federation)","authors":"V. Yuzhakov, E. Talapina, Y. Tikhomirov","doi":"10.2139/SSRN.2782426","DOIUrl":"https://doi.org/10.2139/SSRN.2782426","url":null,"abstract":"Russian Abstract: Изложены предложения по проекту федерального закона об основах государственного управления в Российской Федерации, основанные на дополненной Концепции данного законопроекта. Предложения содержат структуру разрабатываемого законопроекта и требования к его основному содержанию.English Abstract: Suggestions on the draft of the federal law on the fundamentals of public administration in the Russian Federation, based on augmented Concept of the bill, are proposed. Proposals contain a structure developed by the bill and the requirements for its main content.","PeriodicalId":121229,"journal":{"name":"European Public Law: National eJournal","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-05-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121039861","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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