{"title":"OUP accepted manuscript","authors":"","doi":"10.1093/yel/yeab011","DOIUrl":"https://doi.org/10.1093/yel/yeab011","url":null,"abstract":"","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"60 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91009202","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 EU, in its present configuration, has often been accused of a persistent and deep structural bias in favour of economic integration to the detriment of the democratic and social values of its Member States. In response to that accusation, can the Charter of Fundamental Rights of the EU (CFREU) come to the rescue and be mobilized, ultimately before a judicially-activist Court of Justice of the EU (CJEU), as a vehicle of social justice, in an effort to correct bias and to counter-balance the expansive economic liberties of the European single market? Exploring this question is a timely topic given a clearly discernable new constitutional turn in the jurisprudence of the CJEU’s Grand Chamber, especially now under the current presidency of Koen Lenaerts. The ‘Lenaerts-Court’, as this article will argue, has embarked on a new EU fundamental-rights jurisprudence, visibly aimed at strengthening the dignitarian-social dimension of EU integration and at adding flesh to the bones of the commitment to a European social market economy in Article 3(3) of the Treaty of European Union (TEU). Yet proposals in support of greater reliance on the substantive, but open-textured, provisions of the CFREU, in the pursuit of a ‘fair balance’ between the EU’s economic and dignitarian-social dimensions, immediately run into democratic-minded concerns about sovereignty passing from the Member States to the courts, and ultimately to the CJEU itself. The persistent worry is that democratic sovereignty over constitutionally sensitive—but morally and politically divisive—choices is being turned into a ‘sovereignty of law’—in ways that not only risk foreclosure of democratic debate over yet unsettled key societal matters but gives up democratic legitimation as a central element of modern constitutionalism (‘over-constitutionalisation’, Dieter Grimm). Thus, the CJEU is being simultaneously criticized for its alleged economic bias and for its efforts to overcome that bias. In an effort to address—and disarm—this democratic-minded concern, this article argues that judicial emphasis on the CFREU’s dignitarian-social values need not per se lead to the consequence of over-constitutionalisation. Rather, this article proposes to look at the Grand Chamber’s new fundamental-rights jurisprudence in the single-market context as creating a framework for plural and inclusive democratic deliberation on key societal choices and values. To that end, the article proposes a new reading of the Grand Chamber’s jurisprudence on the efficacy of fundamental rights in the economic sphere and, in particular, on the horizontal direct effect of CFREU rights.
{"title":"Fundamental Rights and Democratic Sovereignty in the EU: The Role of the Charter of Fundamental Rights of the EU (CFREU) in Regulating the European Social Market Economy","authors":"Oliver Gerstenberg","doi":"10.1093/yel/yeaa008","DOIUrl":"https://doi.org/10.1093/yel/yeaa008","url":null,"abstract":"\u0000 The EU, in its present configuration, has often been accused of a persistent and deep structural bias in favour of economic integration to the detriment of the democratic and social values of its Member States. In response to that accusation, can the Charter of Fundamental Rights of the EU (CFREU) come to the rescue and be mobilized, ultimately before a judicially-activist Court of Justice of the EU (CJEU), as a vehicle of social justice, in an effort to correct bias and to counter-balance the expansive economic liberties of the European single market?\u0000 Exploring this question is a timely topic given a clearly discernable new constitutional turn in the jurisprudence of the CJEU’s Grand Chamber, especially now under the current presidency of Koen Lenaerts. The ‘Lenaerts-Court’, as this article will argue, has embarked on a new EU fundamental-rights jurisprudence, visibly aimed at strengthening the dignitarian-social dimension of EU integration and at adding flesh to the bones of the commitment to a European social market economy in Article 3(3) of the Treaty of European Union (TEU).\u0000 Yet proposals in support of greater reliance on the substantive, but open-textured, provisions of the CFREU, in the pursuit of a ‘fair balance’ between the EU’s economic and dignitarian-social dimensions, immediately run into democratic-minded concerns about sovereignty passing from the Member States to the courts, and ultimately to the CJEU itself. The persistent worry is that democratic sovereignty over constitutionally sensitive—but morally and politically divisive—choices is being turned into a ‘sovereignty of law’—in ways that not only risk foreclosure of democratic debate over yet unsettled key societal matters but gives up democratic legitimation as a central element of modern constitutionalism (‘over-constitutionalisation’, Dieter Grimm). Thus, the CJEU is being simultaneously criticized for its alleged economic bias and for its efforts to overcome that bias.\u0000 In an effort to address—and disarm—this democratic-minded concern, this article argues that judicial emphasis on the CFREU’s dignitarian-social values need not per se lead to the consequence of over-constitutionalisation. Rather, this article proposes to look at the Grand Chamber’s new fundamental-rights jurisprudence in the single-market context as creating a framework for plural and inclusive democratic deliberation on key societal choices and values. To that end, the article proposes a new reading of the Grand Chamber’s jurisprudence on the efficacy of fundamental rights in the economic sphere and, in particular, on the horizontal direct effect of CFREU rights.","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"38 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2020-11-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84851377","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 present article deals with the legal concept of family members of EU citizens in EU and national legislation. In particular, it examines the legal definition of family in Directive 2004/38, as well as the way the Court of Justice of the EU has interpreted the relevant provisions of the Directive. Not least, the present article focuses on the circumstances under which these persons may qualify as family members according to the case law of the CJEU. As for the research at national level, the present study examines the way the same issues are regulated in national implementing legislation of Spain. The article concludes that although the definition of family in Directive 2004/38 is still focused on a formal and traditional family model, the CJEU has quite progressively adopted a more expansive interpretation in relation to this concept. Regardless of this finding, this article argues that a more de facto approach is still necessary in order for the applicable rules to become more compatible with the reality of personal relations nowadays but also with the international human rights standards.
{"title":"Defining ‘Family Members’ of EU Citizens and the Circumstances under Which They Can Rely on EU Law","authors":"G. Milios","doi":"10.1093/yel/yeaa009","DOIUrl":"https://doi.org/10.1093/yel/yeaa009","url":null,"abstract":"\u0000 The present article deals with the legal concept of family members of EU citizens in EU and national legislation. In particular, it examines the legal definition of family in Directive 2004/38, as well as the way the Court of Justice of the EU has interpreted the relevant provisions of the Directive. Not least, the present article focuses on the circumstances under which these persons may qualify as family members according to the case law of the CJEU. As for the research at national level, the present study examines the way the same issues are regulated in national implementing legislation of Spain. The article concludes that although the definition of family in Directive 2004/38 is still focused on a formal and traditional family model, the CJEU has quite progressively adopted a more expansive interpretation in relation to this concept. Regardless of this finding, this article argues that a more de facto approach is still necessary in order for the applicable rules to become more compatible with the reality of personal relations nowadays but also with the international human rights standards.","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"61 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2020-10-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81565494","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}
K. Scheppele, D. Kochenov, Barbara Grabowska-Moroz
Although compliance with the founding values is presumed in its law, the Union is now confronted with persistent disregard of these values in two Member States. If it ceases to be a union of Rule-of-Law-abiding democracies, the European Union (EU) is unthinkable. Purely political mechanisms to safeguard the Rule of Law, such as those in Article 7 Treaty of European Union (TEU), do not work. Worse still, their existence has disguised the fact that the violations of the values of Article 2 TEU are also violations of EU law. The legal mechanisms tried thus far, however, do not work either. The fundamental jurisprudence on judicial independence and irremovability under Article 19(1) TEU is a good start, but it has been unable to change the situation on the ground. Despite ten years of EU attempts at reining in Rule of Law violations and even as backsliding Member States have lost cases at the Court of Justice, illiberal regimes inside the EU have become more consolidated: the EU has been losing through winning. More creative work is needed to find ways to enforce the values of Article 2 TEU more effectively. Taking this insight, we propose to turn the EU into a militant democracy, able to defend its basic principles, by using the traditional tools for the enforcement of EU law in a novel manner. We demonstrate how the familiar infringement actions—both under Article 258 and 259 TFEU—can be adapted as instruments for enforcing EU values by bundling a set of specific violations into a single general infringement action to show how a pattern of unlawful activity rises to the level of being a systemic violation. A systemic violation, because of its general and pervasive nature, in itself threatens basic values above and beyond violations of individual provisions of the acquis. Certified by the Court of Justice, a systemic violation of EU law should call for systemic compliance that would require the Member State to undo the effects of its attacks on the values of Article 2. The use of Article 260 Treaty on the Functioning of the EU (TFEU) to deduct fines from EU funds due to be received by the troubled Member State would provide additional incentives for systemic compliance. We illustrate this proposed militant democratic structure by explaining and critiquing what the Commission and Court together have done to reign in the governments of Hungary and Poland so far and then showing how they can do better.
{"title":"EU Values Are Law, after All: Enforcing EU Values through Systemic Infringement Actions by the European Commission and the Member States of the European Union","authors":"K. Scheppele, D. Kochenov, Barbara Grabowska-Moroz","doi":"10.2139/ssrn.3706496","DOIUrl":"https://doi.org/10.2139/ssrn.3706496","url":null,"abstract":"\u0000 Although compliance with the founding values is presumed in its law, the Union is now confronted with persistent disregard of these values in two Member States. If it ceases to be a union of Rule-of-Law-abiding democracies, the European Union (EU) is unthinkable. Purely political mechanisms to safeguard the Rule of Law, such as those in Article 7 Treaty of European Union (TEU), do not work. Worse still, their existence has disguised the fact that the violations of the values of Article 2 TEU are also violations of EU law. The legal mechanisms tried thus far, however, do not work either. The fundamental jurisprudence on judicial independence and irremovability under Article 19(1) TEU is a good start, but it has been unable to change the situation on the ground. Despite ten years of EU attempts at reining in Rule of Law violations and even as backsliding Member States have lost cases at the Court of Justice, illiberal regimes inside the EU have become more consolidated: the EU has been losing through winning. More creative work is needed to find ways to enforce the values of Article 2 TEU more effectively. Taking this insight, we propose to turn the EU into a militant democracy, able to defend its basic principles, by using the traditional tools for the enforcement of EU law in a novel manner. We demonstrate how the familiar infringement actions—both under Article 258 and 259 TFEU—can be adapted as instruments for enforcing EU values by bundling a set of specific violations into a single general infringement action to show how a pattern of unlawful activity rises to the level of being a systemic violation. A systemic violation, because of its general and pervasive nature, in itself threatens basic values above and beyond violations of individual provisions of the acquis. Certified by the Court of Justice, a systemic violation of EU law should call for systemic compliance that would require the Member State to undo the effects of its attacks on the values of Article 2. The use of Article 260 Treaty on the Functioning of the EU (TFEU) to deduct fines from EU funds due to be received by the troubled Member State would provide additional incentives for systemic compliance. We illustrate this proposed militant democratic structure by explaining and critiquing what the Commission and Court together have done to reign in the governments of Hungary and Poland so far and then showing how they can do better.","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"71 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2020-10-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73109507","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 interface between data protection and freedom of expression is increasingly crucial and the General Data Protection Regulation (GDPR) solidifies a bipartite or potentially even tripartite conceptualization of this relationship. Whilst the GDPR’s personal exemption can play some role in governing individual expression, it must be construed narrowly so as to only exclude innocuous publication that is not liable to infringe other’s fundamental rights. The special expression derogation remains central and encompasses not just journalism but also other forms of special expression (academic, artistic, literary) which, when published, are objectively orientated towards a collective public. Whilst Member States do retain considerable discretion given the wide diversity of national constitutional norms in this area, a strict balancing between fundamental rights should still be ensured. Freedom of expression is also distinctly furthered by, inter alia, self-expression on social networking sites and the facilitation of a range of expressive purposes by search engines. As shown in GC and Others v CNIL, the stricter reconciliation of rights here must retain a direct role for data protection’s core substance including its legal grounds and principles and is thereby substantially (albeit not completely) harmonized across the EU.
{"title":"Special, Personal and Broad Expression: Exploring Freedom of Expression Norms under the General Data Protection Regulation","authors":"D. Erdos","doi":"10.2139/ssrn.3565385","DOIUrl":"https://doi.org/10.2139/ssrn.3565385","url":null,"abstract":"\u0000 The interface between data protection and freedom of expression is increasingly crucial and the General Data Protection Regulation (GDPR) solidifies a bipartite or potentially even tripartite conceptualization of this relationship. Whilst the GDPR’s personal exemption can play some role in governing individual expression, it must be construed narrowly so as to only exclude innocuous publication that is not liable to infringe other’s fundamental rights. The special expression derogation remains central and encompasses not just journalism but also other forms of special expression (academic, artistic, literary) which, when published, are objectively orientated towards a collective public. Whilst Member States do retain considerable discretion given the wide diversity of national constitutional norms in this area, a strict balancing between fundamental rights should still be ensured. Freedom of expression is also distinctly furthered by, inter alia, self-expression on social networking sites and the facilitation of a range of expressive purposes by search engines. As shown in GC and Others v CNIL, the stricter reconciliation of rights here must retain a direct role for data protection’s core substance including its legal grounds and principles and is thereby substantially (albeit not completely) harmonized across the EU.","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"38 4 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2020-04-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79934920","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}
Marking the fifteenth anniversary of the entry into force of Regulation 1/2003, 2019 offers a vantage point from which to analyse the rise of commitment decisions as the primary enforcement mechanism for non-cartel competition law investigations at EU level. Commitment decisions, the closure of competition cases with a package of remedial obligations in response to Commission concerns, have an undeniable administrative appeal. They afford the Commission the absolute discretion to counteract any form of market conduct, whether beyond the pre-existing scope of the law deduced by the EU Courts from Articles 101 and 102 TFEU, or below exacting thresholds for prohibition of legally controversial business practices. Furthermore, the Commission can secure any remedial outcome, even if disproportionate or seemingly disconnected from its competitive concerns, to thereby redraw markets according to its idealized vision. In this regard, commitment decisions allow the Commission to achieve its policy goals with utmost effectiveness. Nevertheless, this article argues that such a method of market intervention represents a significant divergence from realizing the ideal of the formal rule of law in EU competition enforcement: normative certainty for businesses, facilitated by the equal application of generalized legal norms, which are subject to close oversight by courts. This offers an aspirational legal form of considerable political and economic value. Using commitment decisions to enforce EU competition policy via ad hoc, subject-specific decision making, conditional upon unforeseeable remedial obligations, is of systemic detriment to the legal comprehensibility of not just future Commission decision making, but the entire edifice of norms deduced from the Treaties by the EU Courts in this field. A rather relaxed approach to judicially reviewing the remedial proportionality of commitment decisions has partly contributed to this issue. However it is suggested that the EU Courts are largely unable to remedy the problems of novel theories of harm or subject-specific determinations, delivering upon their important residual role envisaged by the rule of law ideal, because of a factor mostly beyond their control: the lack of commitment decisions brought before them for review. To that end, the article concludes by recommending the automatic review of commitment decisions by the Courts. This would hopefully foster a more balanced reconciliation of effective policy achievement by the Commission and realization of the formal rule of law ideal in contemporary EU competition enforcement.
{"title":"Commitment Decisions in EU Competition Enforcement: Policy Effectiveness v. the Formal Rule of Law","authors":"R. Stones","doi":"10.1093/yel/yez011","DOIUrl":"https://doi.org/10.1093/yel/yez011","url":null,"abstract":"\u0000 Marking the fifteenth anniversary of the entry into force of Regulation 1/2003, 2019 offers a vantage point from which to analyse the rise of commitment decisions as the primary enforcement mechanism for non-cartel competition law investigations at EU level. Commitment decisions, the closure of competition cases with a package of remedial obligations in response to Commission concerns, have an undeniable administrative appeal. They afford the Commission the absolute discretion to counteract any form of market conduct, whether beyond the pre-existing scope of the law deduced by the EU Courts from Articles 101 and 102 TFEU, or below exacting thresholds for prohibition of legally controversial business practices. Furthermore, the Commission can secure any remedial outcome, even if disproportionate or seemingly disconnected from its competitive concerns, to thereby redraw markets according to its idealized vision. In this regard, commitment decisions allow the Commission to achieve its policy goals with utmost effectiveness. Nevertheless, this article argues that such a method of market intervention represents a significant divergence from realizing the ideal of the formal rule of law in EU competition enforcement: normative certainty for businesses, facilitated by the equal application of generalized legal norms, which are subject to close oversight by courts. This offers an aspirational legal form of considerable political and economic value. Using commitment decisions to enforce EU competition policy via ad hoc, subject-specific decision making, conditional upon unforeseeable remedial obligations, is of systemic detriment to the legal comprehensibility of not just future Commission decision making, but the entire edifice of norms deduced from the Treaties by the EU Courts in this field. A rather relaxed approach to judicially reviewing the remedial proportionality of commitment decisions has partly contributed to this issue. However it is suggested that the EU Courts are largely unable to remedy the problems of novel theories of harm or subject-specific determinations, delivering upon their important residual role envisaged by the rule of law ideal, because of a factor mostly beyond their control: the lack of commitment decisions brought before them for review. To that end, the article concludes by recommending the automatic review of commitment decisions by the Courts. This would hopefully foster a more balanced reconciliation of effective policy achievement by the Commission and realization of the formal rule of law ideal in contemporary EU competition enforcement.","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"83 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2019-12-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72761299","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}
This paper examines the growing significance of the ‘territory of the Union’ in EU citizenship law and asks what it reveals about Union citizenship in the wider system of the EU legal order. In doing so, it builds on scholarship constructing the idea of ‘personhood’ in EU law by adding a complementary dimension of ‘place-hood’. The analysis is premised on territory as a place within—but also beyond—which particular legal qualities are both produced by and reflect shared objectives or values. In that respect, the paper offers a comprehensive ‘map’ of Union territory as a legal construct, with the aim of uncovering what kind of legal place the territory of the Union constitutes as well as the extent to which it is dis-connectable from the territories of the Member States. It also considers how Union territory relates to what lies ‘outside’. It will be shown that different narratives of Union territory have materialized in the case law of the Court of Justice. However, it is argued that these segregated lines of reasoning should be integrated, both to reflect and to progress a composite understanding of Union territory as a place in which concerns for Union citizens, for Member States, and for the system underpinning the EU legal order are more consistently acknowledged and more openly weighed.
{"title":"The ‘Territory of the Union’ in EU Citizenship Law: Charting a Route from Parallel to Integrated Narratives","authors":"N. N. Shuibhne","doi":"10.1093/yel/yez006","DOIUrl":"https://doi.org/10.1093/yel/yez006","url":null,"abstract":"\u0000 This paper examines the growing significance of the ‘territory of the Union’ in EU citizenship law and asks what it reveals about Union citizenship in the wider system of the EU legal order. In doing so, it builds on scholarship constructing the idea of ‘personhood’ in EU law by adding a complementary dimension of ‘place-hood’. The analysis is premised on territory as a place within—but also beyond—which particular legal qualities are both produced by and reflect shared objectives or values. In that respect, the paper offers a comprehensive ‘map’ of Union territory as a legal construct, with the aim of uncovering what kind of legal place the territory of the Union constitutes as well as the extent to which it is dis-connectable from the territories of the Member States. It also considers how Union territory relates to what lies ‘outside’. It will be shown that different narratives of Union territory have materialized in the case law of the Court of Justice. However, it is argued that these segregated lines of reasoning should be integrated, both to reflect and to progress a composite understanding of Union territory as a place in which concerns for Union citizens, for Member States, and for the system underpinning the EU legal order are more consistently acknowledged and more openly weighed.","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"31 3 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2019-10-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83567280","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}
{"title":"Switzerland-EU Bilateral Agreements, the Incorporation of EU Law and the Continuous Erosion of Democratic Rights","authors":"Matthew Oesch","doi":"10.1093/YEL/YEZ005","DOIUrl":"https://doi.org/10.1093/YEL/YEZ005","url":null,"abstract":"","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"9 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2019-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78778446","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 main aim of this paper is to cast light on the case law on direct effect of directives, which has remained elusive to both scholars and practitioners. To this end, we first revisit the relevant case law on inverse vertical, horizontal. and triangular disputes to show that the fundamental distinction drawn by the case law is that between ‘direct obligations’ and ‘mere adverse repercussions’. Subsequently, we propose a doctrinal approach to distinguish between ‘direct obligations’ and ‘mere adverse repercussions’ which centres on the impact of invoking a Euorpean Union (EU) directive on the norms governing the dispute. This ‘normative impact theory’ explains all existing case law on the direct effect of directives, and thus aids a better understanding of the concept of imposing obligations on individuals. We compare this theory with other doctrinal theories that have purported to explain the case law, including the well-known distinction between invocabilité de substitution and invocabilité d’exclusion, concluding that the normative impact theory has descriptive and normative advantages over existing approaches. Lastly, we show how the functioning of the preliminary reference procedure has affected the development of the case law on direct effect. We demonstrate that the European Court of Justice (ECJ) applies a presumption that consistent interpretation is capable of remedying incompatibilities between national and EU law. Secondly, we show how the formulation of the preliminary reference can substantially affect, and even confuse, the answer of the ECJ as regards matters of direct effect.
{"title":"The Normative Impact of Invoking Directives: Casting Light on Direct Effect and the Elusive Distinction between Obligations and Mere Adverse Repercussions","authors":"L. Squintani, J. Lindeboom","doi":"10.1093/YEL/YEZ004","DOIUrl":"https://doi.org/10.1093/YEL/YEZ004","url":null,"abstract":"\u0000 The main aim of this paper is to cast light on the case law on direct effect of directives, which has remained elusive to both scholars and practitioners. To this end, we first revisit the relevant case law on inverse vertical, horizontal. and triangular disputes to show that the fundamental distinction drawn by the case law is that between ‘direct obligations’ and ‘mere adverse repercussions’. Subsequently, we propose a doctrinal approach to distinguish between ‘direct obligations’ and ‘mere adverse repercussions’ which centres on the impact of invoking a Euorpean Union (EU) directive on the norms governing the dispute. This ‘normative impact theory’ explains all existing case law on the direct effect of directives, and thus aids a better understanding of the concept of imposing obligations on individuals. We compare this theory with other doctrinal theories that have purported to explain the case law, including the well-known distinction between invocabilité de substitution and invocabilité d’exclusion, concluding that the normative impact theory has descriptive and normative advantages over existing approaches. Lastly, we show how the functioning of the preliminary reference procedure has affected the development of the case law on direct effect. We demonstrate that the European Court of Justice (ECJ) applies a presumption that consistent interpretation is capable of remedying incompatibilities between national and EU law. Secondly, we show how the formulation of the preliminary reference can substantially affect, and even confuse, the answer of the ECJ as regards matters of direct effect.","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"7 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2019-08-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81282483","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}
{"title":"A Possible European Monetary Fund and the Future of the Euro Area","authors":"Alicia Hinarejos","doi":"10.1093/YEL/YEZ003","DOIUrl":"https://doi.org/10.1093/YEL/YEZ003","url":null,"abstract":"","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"70 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81548454","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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