Economic constitutions may be ‘substantive’, seeking to implement fundamental economic policies or ‘the will of the people’ in relation to economic management, or ‘communicative’, establishing institutions for economic organisation and holding these accountable. In the context of fiscal policy there have been recent important successes for the ‘substantive’ model through the use of balanced budget rules, but a more ‘communicative’ approach can be seen in the development of fiscal councils. Similar moves to a more ‘communicative’ model can be found in monetary policy and in the regulation of public utilities, including in EU liberalization. If such a move is to be successful, the institutions involved need independence, though this should not be confused with complete autonomy of decision-making as decisions will often need to be taken within a broader framework of government policy. The ‘communicative’ model is the most appropriate one for an economic constitution in complex modern economies.
{"title":"The Rule of Law, Economic Constitutions and Institutional Balance","authors":"T. Prosser","doi":"10.54648/leie2019019","DOIUrl":"https://doi.org/10.54648/leie2019019","url":null,"abstract":"Economic constitutions may be ‘substantive’, seeking to implement fundamental economic policies or ‘the will of the people’ in relation to economic management, or ‘communicative’, establishing institutions for economic organisation and holding these accountable. In the context of fiscal policy there have been recent important successes for the ‘substantive’ model through the use of balanced budget rules, but a more ‘communicative’ approach can be seen in the development of fiscal councils. Similar moves to a more ‘communicative’ model can be found in monetary policy and in the regulation of public utilities, including in EU liberalization. If such a move is to be successful, the institutions involved need independence, though this should not be confused with complete autonomy of decision-making as decisions will often need to be taken within a broader framework of government policy. The ‘communicative’ model is the most appropriate one for an economic constitution in complex modern economies.","PeriodicalId":42718,"journal":{"name":"Legal Issues of Economic Integration","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2019-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88747547","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 article endeavours to assess whether the Investor-State Dispute Settlement (‘ISDS’) mechanism established under the Comprehensive Economic and Trade Agreement (‘CETA’) may in fact undermine the external autonomy of the EU legal order, arguing that in Opinion 1/17 the Court of Justice of the European Union (‘CJEU’) has lowered the bar in its analysis of compatibility with this principle. After a brief overview of the notion of external autonomy the article turns to an analysis of the CETA Opinion, arguing that the CJEU confined itself to a formal scrutiny of the relevant textual provisions and failed to thoroughly explore the impact that CETA’s ISDS mechanism is liable to have in practice. The article then deploys two hypothetical scenarios, both involving the field of EU risk regulation. These will show how CETA Tribunals might indirectly interpret EU law as a matter of law and how, when assessing whether an EU measure breaches CETA, they might encroach on the EU determination of the adequate level of protection of public interests. Against this backdrop, the article argues that CETA’s ISDS system is liable to undermine the uniform and consistent interpretation and application of EU law. Further, CETA Tribunals might de facto bind the CJEU in its interpretation of EU law and influence other EU institutions in the exercise of their powers. CETA, ISDS, External Autonomy, Achmea, Risk Regulation, GMOs, Health and Environmental Protection.
{"title":"CETA and the External Autonomy of the EU Legal Order: Risk Regulation as a Test","authors":"Giulia Claudia Leonelli","doi":"10.54648/leie2020003","DOIUrl":"https://doi.org/10.54648/leie2020003","url":null,"abstract":"This article endeavours to assess whether the Investor-State Dispute Settlement (‘ISDS’) mechanism established under the Comprehensive Economic and Trade Agreement (‘CETA’) may in fact undermine the external autonomy of the EU legal order, arguing that in Opinion 1/17 the Court of Justice of the European Union (‘CJEU’) has lowered the bar in its analysis of compatibility with this principle. After a brief overview of the notion of external autonomy the article turns to an analysis of the CETA Opinion, arguing that the CJEU confined itself to a formal scrutiny of the relevant textual provisions and failed to thoroughly explore the impact that CETA’s ISDS mechanism is liable to have in practice. The article then deploys two hypothetical scenarios, both involving the field of EU risk regulation. These will show how CETA Tribunals might indirectly interpret EU law as a matter of law and how, when assessing whether an EU measure breaches CETA, they might encroach on the EU determination of the adequate level of protection of public interests. Against this backdrop, the article argues that CETA’s ISDS system is liable to undermine the uniform and consistent interpretation and application of EU law. Further, CETA Tribunals might de facto bind the CJEU in its interpretation of EU law and influence other EU institutions in the exercise of their powers.\u0000CETA, ISDS, External Autonomy, Achmea, Risk Regulation, GMOs, Health and Environmental Protection.","PeriodicalId":42718,"journal":{"name":"Legal Issues of Economic Integration","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2019-10-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90525123","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 Weiss, the Court of Justice of the European Union (CJEU) was asked again by the German Federal Constitutional Court (FCC) to examine the legality of an unconventional monetary policy measure of the European Central Bank (ECB). The Court upheld the Public Sector Purchases Program (PSPP) using largely the same legal tests for government bond purchases as set out in its previous ruling. This case note argues that Weiss nevertheless signals a further unwillingness of the Court to strictly review the actions of the ECB, as the Court refrained from examining the actual effects and implementation of this unconventional measure. Even though the Court clarifies some legal issues surrounding the review of actions of the ECB, it shies away from offering a broader perspective on its own role in Economic and Monetary Union (EMU).
{"title":"Similar, Therefore Different: Judicial Review of Another Unconventional Monetary Policy in Weiss (C-493/17)","authors":"Marijn van der Sluis","doi":"10.54648/leie2019016","DOIUrl":"https://doi.org/10.54648/leie2019016","url":null,"abstract":"In Weiss, the Court of Justice of the European Union (CJEU) was asked again by the German Federal Constitutional Court (FCC) to examine the legality of an unconventional monetary policy measure of the European Central Bank (ECB). The Court upheld the Public Sector Purchases Program (PSPP) using largely the same legal tests for government bond purchases as set out in its previous ruling. This case note argues that Weiss nevertheless signals a further unwillingness of the Court to strictly review the actions of the ECB, as the Court refrained from examining the actual effects and implementation of this unconventional measure. Even though the Court clarifies some legal issues surrounding the review of actions of the ECB, it shies away from offering a broader perspective on its own role in Economic and Monetary Union (EMU).","PeriodicalId":42718,"journal":{"name":"Legal Issues of Economic Integration","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2019-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86279480","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":"From the Board: The Paradox of Proliferation and Contestation of Economic Integration","authors":"","doi":"10.54648/leie2019012","DOIUrl":"https://doi.org/10.54648/leie2019012","url":null,"abstract":"","PeriodicalId":42718,"journal":{"name":"Legal Issues of Economic Integration","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2019-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85309581","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 digital economy is dynamic, fast expanding, and truly global. The legal framework that currently applies to the digital economy is either divided, fragmented, ad hoc, out of date, or nonexistent. Some legal initiatives quixotically aim at stopping cross-border data flows, reflecting consumer fears regarding privacy and security or government fears about losing tax revenue. The fragmented regulatory environment does not help companies ‘scale up’ digital technologies; in turn, this hampers innovation and global economic growth. In addition, some less digitally developed actors complain that current rules allow or even foster unfair competition. This article proposes a new and global legal framework for the digital economy: structured cooperation between states and companies under the administration of an autonomous body. States may resist giving up sovereignty, and citizens may fear erosion of their legal rights. However, uniform, consistent, and enforceable rules would benefit both states and citizens. Tax revenue could be fairly assessed and distributed, for example, and citizens and businesses would no longer face divergent privacy and security rules. Regulation would become more legitimate because both public and private stakeholders would participate in rulemaking, including smaller players and digital latecomers. Companies that subscribe to the framework would receive a global ‘trust mark’ that would boost consumer confidence. In sum, a global legal framework, as contemplated, would match the global character of activities in the digital economy
{"title":"Of Binding Provisions and Trust Marks; Roadmap to a Global Legal Framework for the Digital Economy","authors":"A. Willems, M. Kamau","doi":"10.54648/leie2019014","DOIUrl":"https://doi.org/10.54648/leie2019014","url":null,"abstract":"The digital economy is dynamic, fast expanding, and truly global. The legal framework that currently applies to the digital economy is either divided, fragmented, ad hoc, out of date, or nonexistent. Some legal initiatives quixotically aim at stopping cross-border data flows, reflecting consumer fears regarding privacy and security or government fears about losing tax revenue. The fragmented regulatory environment does not help companies ‘scale up’ digital technologies; in turn, this hampers innovation and global economic growth. In addition, some less digitally developed actors complain that current rules allow or even foster unfair competition. This article proposes a new and global legal framework for the digital economy: structured cooperation between states and companies under the administration of an autonomous body. States may resist giving up sovereignty, and citizens may fear erosion of their legal rights. However, uniform, consistent, and enforceable rules would benefit both states and citizens. Tax revenue could be fairly assessed and distributed, for example, and citizens and businesses would no longer face divergent privacy and security rules. Regulation would become more legitimate because both public and private stakeholders would participate in rulemaking, including smaller players and digital latecomers. Companies that subscribe to the framework would receive a global ‘trust mark’ that would boost consumer confidence. In sum, a global legal framework, as contemplated, would match the global character of activities in the digital economy","PeriodicalId":42718,"journal":{"name":"Legal Issues of Economic Integration","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2019-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80286763","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 US-Peru Trade Promotion Agreement (TPA), in force since 2009 contains an environment chapter and a particular Annex on Forest Sector Governance with strong provisions to tackle trade associated with illegal logging and to promote legal trade in timber products. Both the Chapter and the Annex are subject to governmental environmental consultations, linked to the Dispute Settlement Mechanism of the TPA. Additionally, the treaty grants the right to file a submission to any person when a Party is failing to effectively enforce its environmental laws, with a Secretariat created just in 2015. As a result, three files have been already submitted against Peru seeking the implementation of (1) an international environmental agreement, (2) the national environmental law and, (3) a provision of the Annex of the TPA. On the latest, furthermore, the US Government requesting in January 2019 the first consultations on environmental matters involving forest issues under a TPA.
{"title":"Enforcement Practice Under Preferential Trade Agreements: Environmental Consultations and Submissions on Environmental Enforcement Matters in the US-Peru TPA","authors":"Yilly Vanessa Pacheco Restrepo","doi":"10.54648/leie2019015","DOIUrl":"https://doi.org/10.54648/leie2019015","url":null,"abstract":"The US-Peru Trade Promotion Agreement (TPA), in force since 2009 contains an environment chapter and a particular Annex on Forest Sector Governance with strong provisions to tackle trade associated with illegal logging and to promote legal trade in timber products. Both the Chapter and the Annex are subject to governmental environmental consultations, linked to the Dispute Settlement Mechanism of the TPA. Additionally, the treaty grants the right to file a submission to any person when a Party is failing to effectively enforce its environmental laws, with a Secretariat created just in 2015. As a result, three files have been already submitted against Peru seeking the implementation of (1) an international environmental agreement, (2) the national environmental law and, (3) a provision of the Annex of the TPA. On the latest, furthermore, the US Government requesting in January 2019 the first consultations on environmental matters involving forest issues under a TPA.","PeriodicalId":42718,"journal":{"name":"Legal Issues of Economic Integration","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2019-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82416660","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 case review discusses the 2018 Swedish Match judgment of the European Court of Justice, arguing that the ECJ makes an implicit statement on the horizontal allocation of competences between itself and the European legislator. In order to contest the prohibition on snus in the Tobacco Products Directive of 2014, Swedish Match relies on new scientific evidence that came into light after the adoption of the Directive. The ECJ raises three main points in order to deny the request for annulment, but ultimately fails to engage with Swedish Match’s main argument. This can be explained by considering the Court’s reluctance to engage with scientific evidence and the discretion it awards to the European legislator in making political choices amidst scientific uncertainty. Nevertheless, this judgment, in comparison to others where the Court uses the precautionary principle to explain the legislator’s choice, is not dealing with scientific evidence that existed during the creation of the legislation. Therefore, the question here should be not whether the legislator was right in adopting the Directive when it did, but rather whether it is right in maintaining it now when new evidence that may reduce the scientific uncertainty has come to light. The Court, however, cannot answer this question and it does not. Thus, this judgment showcases a gap in the interplay between the EU institutions: legislation adopted on the basis of precaution cannot be adequately reviewed by the Court on the basis of new scientific evidence that could potentially reduce the scientific uncertainty and trigger an annulment or amendment.
{"title":"Swedish Match 2018: Can the Court Actually Advise or Make the Commission Consider the Evidence?","authors":"Vicktoria Elazarova","doi":"10.54648/leie2019017","DOIUrl":"https://doi.org/10.54648/leie2019017","url":null,"abstract":"This case review discusses the 2018 Swedish Match judgment of the European Court of Justice, arguing that the ECJ makes an implicit statement on the horizontal allocation of competences between itself and the European legislator. In order to contest the prohibition on snus in the Tobacco Products Directive of 2014, Swedish Match relies on new scientific evidence that came into light after the adoption of the Directive. The ECJ raises three main points in order to deny the request for annulment, but ultimately fails to engage with Swedish Match’s main argument. This can be explained by considering the Court’s reluctance to engage with scientific evidence and the discretion it awards to the European legislator in making political choices amidst scientific uncertainty. Nevertheless, this judgment, in comparison to others where the Court uses the precautionary principle to explain the legislator’s choice, is not dealing with scientific evidence that existed during the creation of the legislation. Therefore, the question here should be not whether the legislator was right in adopting the Directive when it did, but rather whether it is right in maintaining it now when new evidence that may reduce the scientific uncertainty has come to light. The Court, however, cannot answer this question and it does not. Thus, this judgment showcases a gap in the interplay between the EU institutions: legislation adopted on the basis of precaution cannot be adequately reviewed by the Court on the basis of new scientific evidence that could potentially reduce the scientific uncertainty and trigger an annulment or amendment.","PeriodicalId":42718,"journal":{"name":"Legal Issues of Economic Integration","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2019-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74624884","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 article assesses the compliance, enforcement and dispute settlement procedure of the Energy Community (EnC). The EnC is an international organization composed of the European Union (EU) and several (South-)East European states, whose main goal is to integrate and harmonize the energy sector of the non-EU member countries with the energy sector of the EU by (among others) offering the prospects of easier access to foreign investments. This however requires implementation by those countries of the mandated rules as set by the EnC, which in practice are similar to the same rules and laws that are required within the EU itself. The implementation of these rules has been proven to be lacking, prompting active compliance enforcement by the Energy Community Secretariat, the permanent body tasked with monitoring compliance. For this, the EnC has a dispute settlement system which is highly diplomatic of nature, and which is most often already effective at enforcing compliance simply by negotiation. However, this dispute settlement system is still seen as lacking a few aspects, such as real sanctions, that would make it more effective at enforcing compliance of the rules of the EnC.
{"title":"The Compliance and Dispute Settlement System of the European Energy Community","authors":"Gijs Verhagen","doi":"10.54648/leie2019009","DOIUrl":"https://doi.org/10.54648/leie2019009","url":null,"abstract":"This article assesses the compliance, enforcement and dispute settlement procedure of the Energy Community (EnC). The EnC is an international organization composed of the European Union (EU) and several (South-)East European states, whose main goal is to integrate and harmonize the energy sector of the non-EU member countries with the energy sector of the EU by (among others) offering the prospects of easier access to foreign investments. This however requires implementation by those countries of the mandated rules as set by the EnC, which in practice are similar to the same rules and laws that are required within the EU itself. The implementation of these rules has been proven to be lacking, prompting active compliance enforcement by the Energy Community Secretariat, the permanent body tasked with monitoring compliance. For this, the EnC has a dispute settlement system which is highly diplomatic of nature, and which is most often already effective at enforcing compliance simply by negotiation. However, this dispute settlement system is still seen as lacking a few aspects, such as real sanctions, that would make it more effective at enforcing compliance of the rules of the EnC.","PeriodicalId":42718,"journal":{"name":"Legal Issues of Economic Integration","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2019-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75096092","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":"From the Board, 2019: The Year of the Rule?","authors":"","doi":"10.54648/leie2019006","DOIUrl":"https://doi.org/10.54648/leie2019006","url":null,"abstract":"","PeriodicalId":42718,"journal":{"name":"Legal Issues of Economic Integration","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2019-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74026662","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}
Though the plans for Brexit keep changing daily at the time of writing of this article, it seems useful to identify and discuss the differences between various types of EU trade agreements with third countries as possible models for a future EU–UK relationship, whatever the outcome. At some point after all the political drama, civil servants and negotiators will need to get down to business and find practical solutions for the new situation. This article examines the impact of such a transition on the integrated EU pharmaceutical industry. First, a state of play chapter details the EU and UK legislation regarding Brexit, possible future agreements and an overview of the pharmaceutical regulatory framework. The focus of the analysis itself is the level of participation in the European Medicine Association on the basis of a European Economic Area (EEA) Agreement (Norway), a Bilateral Agreement (Switzerland), and a Free Trade Agreement (Canada). Within this framework, key regulatory complications of the EU pharmaceutical framework (Market Authorization, Research & Development and Safety Monitoring) are investigated. Finally, the article demonstrates some of the dilemmas and diverging demands of the EU and UK as new trading partners in the pharmaceutical sector.
{"title":"Approaching Judgment Day: The Influence of Brexit on the EU Pharmaceutical Framework","authors":"N. M. Kohnstamm","doi":"10.54648/leie2019010","DOIUrl":"https://doi.org/10.54648/leie2019010","url":null,"abstract":"Though the plans for Brexit keep changing daily at the time of writing of this article, it seems useful to identify and discuss the differences between various types of EU trade agreements with third countries as possible models for a future EU–UK relationship, whatever the outcome. At some point after all the political drama, civil servants and negotiators will need to get down to business and find practical solutions for the new situation. This article examines the impact of such a transition on the integrated EU pharmaceutical industry. First, a state of play chapter details the EU and UK legislation regarding Brexit, possible future agreements and an overview of the pharmaceutical regulatory framework. The focus of the analysis itself is the level of participation in the European Medicine Association on the basis of a European Economic Area (EEA) Agreement (Norway), a Bilateral Agreement (Switzerland), and a Free Trade Agreement (Canada). Within this framework, key regulatory complications of the EU pharmaceutical framework (Market Authorization, Research & Development and Safety Monitoring) are investigated. Finally, the article demonstrates some of the dilemmas and diverging demands of the EU and UK as new trading partners in the pharmaceutical sector.","PeriodicalId":42718,"journal":{"name":"Legal Issues of Economic Integration","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2019-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83235764","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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