{"title":"Housing as a ‘Double Irritant’ in EU Law: Towards an SGEI between Markets and Local Needs","authors":"I. Domurath","doi":"10.1093/yel/yez012","DOIUrl":"https://doi.org/10.1093/yel/yez012","url":null,"abstract":"","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"40 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72662529","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}
With the adoption of the Race Equality Directive (2000/43/EC), the Framework Directive (2000/78/EC) and the Gender Directive on goods and services (2004/113/EC) and their subsequent interpretation by the Court of Justice, the landscape of EU non-discrimination law changed dramatically. At the same time, beyond this legal evolution, an important discursive shift reframed equality as a genuine fundamental right, in opposition to its historical function as a catalyst for market integration. The aim of this article is to critically interrogate what has been presented as the normative transformation of EU equality law in the aftermath of the 2000s. The present article deconstructs this disruptive narrative and contests the conventionally assumed radical dichotomy between market integration and human rights as overarching rationales for the Union’s commitment to equality. It explores the tension between an ambitious fundamental rights rhetoric and the pragmatic fluctuations of the substance of the principle of equality in EU law. It argues that the ‘new’ post-Amsterdam language of rights, under the guise of ‘progress’, covers an actual continuity in the normative grammar of EU non-discrimination law. Arguably, the very normative indeterminacy of equality facilitated its exploitation by different EU actors to advance their own strategic aims. This resulted in a form of hybridity of the principle of non-discrimination, with important consequences in terms of enforceable equality rights and their hierarchy. The demonstration offered here operates at three different levels: the analysis successively focuses on the material and discursive substance of equality, its normative foundations and its operationalization in order to explore the question of the transformation of EU equality law beyond disruptive narratives and false dichotomies.
{"title":"Transforming EU Equality Law? On Disruptive Narratives and False Dichotomies","authors":"Raphaële Xenidis","doi":"10.1093/YEL/YEY005","DOIUrl":"https://doi.org/10.1093/YEL/YEY005","url":null,"abstract":"\u0000 With the adoption of the Race Equality Directive (2000/43/EC), the Framework Directive (2000/78/EC) and the Gender Directive on goods and services (2004/113/EC) and their subsequent interpretation by the Court of Justice, the landscape of EU non-discrimination law changed dramatically. At the same time, beyond this legal evolution, an important discursive shift reframed equality as a genuine fundamental right, in opposition to its historical function as a catalyst for market integration. The aim of this article is to critically interrogate what has been presented as the normative transformation of EU equality law in the aftermath of the 2000s. The present article deconstructs this disruptive narrative and contests the conventionally assumed radical dichotomy between market integration and human rights as overarching rationales for the Union’s commitment to equality. It explores the tension between an ambitious fundamental rights rhetoric and the pragmatic fluctuations of the substance of the principle of equality in EU law. It argues that the ‘new’ post-Amsterdam language of rights, under the guise of ‘progress’, covers an actual continuity in the normative grammar of EU non-discrimination law. Arguably, the very normative indeterminacy of equality facilitated its exploitation by different EU actors to advance their own strategic aims. This resulted in a form of hybridity of the principle of non-discrimination, with important consequences in terms of enforceable equality rights and their hierarchy. The demonstration offered here operates at three different levels: the analysis successively focuses on the material and discursive substance of equality, its normative foundations and its operationalization in order to explore the question of the transformation of EU equality law beyond disruptive narratives and false dichotomies.","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"93 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86037989","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}
EU citizens and—through them—certain of their family members, derive from EU law the right to move between EU Member States and reside in the Member State of their choice. This right is enjoyed by all Union citizens irrespective of their sexual orientation. However, when rainbow families (ie families comprised of a same-sex couple and their child(ren)) exercise this right and move to a Member State which does not provide legal recognition to same-sex couples and/or their families, they are faced with the possibility that that Member State will refuse to legally recognize the familial ties among all or some members of the family, as these have been legally established elsewhere. This means that such families are not treated in the same way as the typical nuclear family which has an opposite-sex, married, couple with children as its basis; the familial links among the members of the nuclear family are only very rarely—if ever—legally contested. The question that emerges, therefore, is whether the severance in the host Member State of the legal ties among the members of rainbow families, amounts to a breach of EU law. This article will focus on the parent–child relationship and will examine the above question by taking a child-centred approach: does the refusal of the host Member State to legally recognize the relationship between a child and one or both of his same-sex parents when the family moves to its territory amount to a breach of any of the rights that the child enjoys under EU law?
{"title":"EU Free Movement Law and the Children of Rainbow Families: Children of a Lesser God?","authors":"Alina Tryfonidou","doi":"10.1093/YEL/YEZ001","DOIUrl":"https://doi.org/10.1093/YEL/YEZ001","url":null,"abstract":"\u0000 EU citizens and—through them—certain of their family members, derive from EU law the right to move between EU Member States and reside in the Member State of their choice. This right is enjoyed by all Union citizens irrespective of their sexual orientation. However, when rainbow families (ie families comprised of a same-sex couple and their child(ren)) exercise this right and move to a Member State which does not provide legal recognition to same-sex couples and/or their families, they are faced with the possibility that that Member State will refuse to legally recognize the familial ties among all or some members of the family, as these have been legally established elsewhere. This means that such families are not treated in the same way as the typical nuclear family which has an opposite-sex, married, couple with children as its basis; the familial links among the members of the nuclear family are only very rarely—if ever—legally contested. The question that emerges, therefore, is whether the severance in the host Member State of the legal ties among the members of rainbow families, amounts to a breach of EU law. This article will focus on the parent–child relationship and will examine the above question by taking a child-centred approach: does the refusal of the host Member State to legally recognize the relationship between a child and one or both of his same-sex parents when the family moves to its territory amount to a breach of any of the rights that the child enjoys under EU law?","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"19 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86411995","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}
‘Purely internal situations’ are sets of facts entirely confined within a single Member State. According to the ‘purely internal rule’, introduced by the European Court of Justice (ECJ) in 1979, purely internal situations lie outside the scope of the internal market fundamental freedoms and of other EU provisions having a cross-border scope. On the fortieth anniversary of the jurisprudential genesis of the purely internal rule, this article seeks to examine its origins, rationale, and evolution, by analyzing the most relevant patterns in the over 250 preliminary rulings handed down in disputes involving purely internal situations. This survey will enable an assessment of the systemic significance of the purely internal rule and of the consequences that abolishing that rule would have for the European integration process.
{"title":"The Wall Around EU Fundamental Freedoms: the Purely Internal Rule at the Forty-Year Mark","authors":"Amedeo Arena","doi":"10.1093/yel/yez010","DOIUrl":"https://doi.org/10.1093/yel/yez010","url":null,"abstract":"\u0000 ‘Purely internal situations’ are sets of facts entirely confined within a single Member State. According to the ‘purely internal rule’, introduced by the European Court of Justice (ECJ) in 1979, purely internal situations lie outside the scope of the internal market fundamental freedoms and of other EU provisions having a cross-border scope. On the fortieth anniversary of the jurisprudential genesis of the purely internal rule, this article seeks to examine its origins, rationale, and evolution, by analyzing the most relevant patterns in the over 250 preliminary rulings handed down in disputes involving purely internal situations. This survey will enable an assessment of the systemic significance of the purely internal rule and of the consequences that abolishing that rule would have for the European integration process.","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"23 4 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86856161","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":"The Binding Charter Ten Years on: More than a ‘Mere Entreaty’?","authors":"E. Frantziou","doi":"10.1093/yel/yez009","DOIUrl":"https://doi.org/10.1093/yel/yez009","url":null,"abstract":"","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"99 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73018167","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":"Upholding the Rule of Law through Judicial Dialogue","authors":"K. Lenaerts","doi":"10.1093/YEL/YEZ002","DOIUrl":"https://doi.org/10.1093/YEL/YEZ002","url":null,"abstract":"","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"7 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74980889","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 order to enter the Banking Union, non-euro EU Member States must ‘step outside’ the EU legal order and the Union’s institutional framework, and resort to unilateral instruments of public international law. If the intergovernmental method has advanced the alternative project of integration based on voluntary policy, international unilateralism is seen as a similar integration technique based on the voluntary action of non-euro Member States, ie a tool for deeper integration that appears as a variation of intergovernmentalism. This article focuses on the constitutional deficiencies caused by the choice of unilateral instruments in the institutional set-up of a close cooperation arrangement in the Single Supervisory Mechanism. At first sight, leaving the EU legal order and entering the world of international law opens entirely new perspectives for the participating Member States. The possible attraction is escaping the constraining institutional framework of EU law. However, the international law route poses significant constitutional challenges vis-à-vis compatibility with the EU law.
{"title":"The Constitutional Price for International Unilateralism in the European Banking Union","authors":"Adrian Dumitrescu-Pasecinic","doi":"10.1093/yel/yez007","DOIUrl":"https://doi.org/10.1093/yel/yez007","url":null,"abstract":"\u0000 In order to enter the Banking Union, non-euro EU Member States must ‘step outside’ the EU legal order and the Union’s institutional framework, and resort to unilateral instruments of public international law. If the intergovernmental method has advanced the alternative project of integration based on voluntary policy, international unilateralism is seen as a similar integration technique based on the voluntary action of non-euro Member States, ie a tool for deeper integration that appears as a variation of intergovernmentalism. This article focuses on the constitutional deficiencies caused by the choice of unilateral instruments in the institutional set-up of a close cooperation arrangement in the Single Supervisory Mechanism. At first sight, leaving the EU legal order and entering the world of international law opens entirely new perspectives for the participating Member States. The possible attraction is escaping the constraining institutional framework of EU law. However, the international law route poses significant constitutional challenges vis-à-vis compatibility with the EU law.","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"222 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79920287","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 is a unique era where the international tax community, most vocally represented by developed countries mainly through the OECD/G20, is engaged in a global fight against tax evasion and tax avoidance. It is thought that lack of tax cooperation increases the risk of cross-border tax evasion and avoidance. The recalcitrance shown by some countries to engage in deeper cooperation is something that is widely criticized. However, apart from the traditional notions of cooperation/assistance and exchange of information commonly viewed as instrumental in the fight against tax evasion/avoidance, another concept has emerged — that of good tax governance or tax good governance or fiscal good governance. Countries are increasingly being asked to adopt standards of tax good governance either on a stand-alone basis or in the context of the fight against tax avoidance and evasion, without a common understanding of what this concept actually entails. Notwithstanding the uncertainties surrounding good tax governance, it is acquiring increasing importance and institutional backing, both internationally and within the European Union (EU). This paper examines how this concept has been received and developed internationally and especially in the context of the EU. From an international perspective, it is shown that there are many facets of good tax governance and it is not always clear what the term actually covers. For international organizations such as the OECD and the UN, the focus is on developing countries and certain state functions such as domestic resource mobilization and capacity building. In a wider context, the focus also seems to be on the relationship between governments and their ability to (automatically) exchange some types of information and ensure transparency. To a lesser extent, the focus is also on the relationship between governments and taxpayers through regimes of enhanced cooperation between tax authorities and some taxpayers. The author considers the soft law initiatives that have been taken in these areas and examines how some of these initiatives are gradually morphing into hard law. In the second half of this article, the author examines the development of the concept of good tax governance in the EU context. Here, it is shown that although the EU was more precise as regards the definition of this concept (at least in the early stages of its evolution), by linking the concept of good tax governance with fair tax competition this has enabled the Commission to inject a great amount of subjectivity in this area. Furthermore, by including the exchange of information and later on BEPS standards in the definition of this concept, this facilitated the Commission’s more expansionist agenda both internally and externally. The author assesses the implications of what she calls the Europeanization of good tax governance — or good tax governance a la Europeenne — and the problems that this creates in so far as the global development of the c
{"title":"The Europeanization of Good Tax Governance","authors":"C. Panayi","doi":"10.1093/YEL/YEX020","DOIUrl":"https://doi.org/10.1093/YEL/YEX020","url":null,"abstract":"This is a unique era where the international tax community, most vocally represented by developed countries mainly through the OECD/G20, is engaged in a global fight against tax evasion and tax avoidance. It is thought that lack of tax cooperation increases the risk of cross-border tax evasion and avoidance. The recalcitrance shown by some countries to engage in deeper cooperation is something that is widely criticized. However, apart from the traditional notions of cooperation/assistance and exchange of information commonly viewed as instrumental in the fight against tax evasion/avoidance, another concept has emerged — that of good tax governance or tax good governance or fiscal good governance. \u0000Countries are increasingly being asked to adopt standards of tax good governance either on a stand-alone basis or in the context of the fight against tax avoidance and evasion, without a common understanding of what this concept actually entails. Notwithstanding the uncertainties surrounding good tax governance, it is acquiring increasing importance and institutional backing, both internationally and within the European Union (EU). This paper examines how this concept has been received and developed internationally and especially in the context of the EU. \u0000From an international perspective, it is shown that there are many facets of good tax governance and it is not always clear what the term actually covers. For international organizations such as the OECD and the UN, the focus is on developing countries and certain state functions such as domestic resource mobilization and capacity building. In a wider context, the focus also seems to be on the relationship between governments and their ability to (automatically) exchange some types of information and ensure transparency. To a lesser extent, the focus is also on the relationship between governments and taxpayers through regimes of enhanced cooperation between tax authorities and some taxpayers. The author considers the soft law initiatives that have been taken in these areas and examines how some of these initiatives are gradually morphing into hard law. \u0000In the second half of this article, the author examines the development of the concept of good tax governance in the EU context. Here, it is shown that although the EU was more precise as regards the definition of this concept (at least in the early stages of its evolution), by linking the concept of good tax governance with fair tax competition this has enabled the Commission to inject a great amount of subjectivity in this area. Furthermore, by including the exchange of information and later on BEPS standards in the definition of this concept, this facilitated the Commission’s more expansionist agenda both internally and externally. The author assesses the implications of what she calls the Europeanization of good tax governance — or good tax governance a la Europeenne — and the problems that this creates in so far as the global development of the c","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"6 1","pages":"442-495"},"PeriodicalIF":0.4,"publicationDate":"2018-01-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81450415","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}
On 23 June 2016 the UK held a referendum on EU membership; with a slight majority the ‘Brexit’ option won. Since then, political and economic uncertainty have prevailed regarding the structure of the future long-term relationship between the UK and the EU. Two widely cited alternatives before and after the referendum, presented as offering the best of both worlds , are the EEA or ‘Norway model’ and the negotiated bilateral agreements path or ‘Swiss model’. This article builds on and complements the scarce existing literature in order to inquire whether these two models would be feasible in the UK–EU framework and would suit the former’s expectations for this new relationship. To this end, the main features of the ‘Norway model’ and the ‘Swiss model’ are analysed mainly through the lens of the guiding principles for the establishment of the new partnership with the EU referred to by HM Government in its February 2017 White Paper. The conclusion is that, notwithstanding granting market access to a greater or lesser extent and freedom to secure free trade agreements with third countries, these models would still require the UK to make contributions to the EU budget and to be broadly subordinated to the EU in the area of immigration control. Regarding the impera-tive principle of the UK to take control of its own laws, the ‘Swiss model’ would arguably be less constraining than the EEA model; however, its current configuration would probably be impracticable in the UK-EU context.
{"title":"After Brexit…The Best of Both Worlds? Rebutting the Norwegian and Swiss Models as Long-Term Options for the UK","authors":"Pérez Crespo, M. José","doi":"10.1093/YEL/YEX021","DOIUrl":"https://doi.org/10.1093/YEL/YEX021","url":null,"abstract":"On 23 June 2016 the UK held a referendum on EU membership; with a slight majority the ‘Brexit’ option won. Since then, political and economic uncertainty have prevailed regarding the structure of the future long-term relationship between the UK and the EU. Two widely cited alternatives before and after the referendum, presented as offering the best of both worlds , are the EEA or ‘Norway model’ and the negotiated bilateral agreements path or ‘Swiss model’. This article builds on and complements the scarce existing literature in order to inquire whether these two models would be feasible in the UK–EU framework and would suit the former’s expectations for this new relationship. To this end, the main features of the ‘Norway model’ and the ‘Swiss model’ are analysed mainly through the lens of the guiding principles for the establishment of the new partnership with the EU referred to by HM Government in its February 2017 White Paper. The conclusion is that, notwithstanding granting market access to a greater or lesser extent and freedom to secure free trade agreements with third countries, these models would still require the UK to make contributions to the EU budget and to be broadly subordinated to the EU in the area of immigration control. Regarding the impera-tive principle of the UK to take control of its own laws, the ‘Swiss model’ would arguably be less constraining than the EEA model; however, its current configuration would probably be impracticable in the UK-EU context.","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"85 1","pages":"94-122"},"PeriodicalIF":0.4,"publicationDate":"2018-01-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79360698","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":"Challenging the Evolution of the EMU: The Justiciability of Soft Law Measures Enacted by the ECB against the Financial Crisis before the European Courts","authors":"J. Alberti","doi":"10.1093/YEL/YEY014","DOIUrl":"https://doi.org/10.1093/YEL/YEY014","url":null,"abstract":"","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"58 1","pages":"626-649"},"PeriodicalIF":0.4,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82078120","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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