The present article examines a recent advisory opinion handed down by the Eurasian Economic Union Court. In the remarkably bold decision, the Court continued to push for the construction of a veritable EAEU internal market. It managed, within one advisory opinion, to further the coherence of its internal market law reasoning, expand on the principles of direct effect and primacy as well as the horizontal effect of fundamental freedoms in EAEU law, provide important definitions in EAEU law, strengthen the authority of the Commission and its decisions and emphasize the duty of loyal cooperation of Member States for the full effectiveness and successful implementation of EAEU law. As only criticism, one may deplore the EAEU Court’s lack of effort to start building a coherent jurisprudence by means of referring to its own case law.
{"title":"Bosmans Second Life? The Eurasian Economic Union Court and the Free Movement of Professional Athletes","authors":"K. Entin, B. Pirker","doi":"10.54648/leie2019008","DOIUrl":"https://doi.org/10.54648/leie2019008","url":null,"abstract":"The present article examines a recent advisory opinion handed down by the Eurasian Economic Union Court. In the remarkably bold decision, the Court continued to push for the construction of a veritable EAEU internal market. It managed, within one advisory opinion, to further the coherence of its internal market law reasoning, expand on the principles of direct effect and primacy as well as the horizontal effect of fundamental freedoms in EAEU law, provide important definitions in EAEU law, strengthen the authority of the Commission and its decisions and emphasize the duty of loyal cooperation of Member States for the full effectiveness and successful implementation of EAEU law. As only criticism, one may deplore the EAEU Court’s lack of effort to start building a coherent jurisprudence by means of referring to its own case law.","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":"83369523","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 concerns the long-awaited WTO Panel report in the Australia – Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging dispute, circulated to Members on 28 June 2018. In the first part, it examines the factual background of the case detailing Australia’s reasons for pursuing a legitimate public health objective in the form of tobacco plain packaging legislation as well as a brief summary of the other disputes arising from this measure. The second part discusses whether the measure adopted by Australia is a technical regulation that is ‘more traderestrictive than necessary to fulfil a legitimate objective taking account of the risks non-fulfilment would create’ pursuant to Article 2.2 of the Technical Barriers to Trade (TBT) Agreement. Lastly, it details the way in which the Panel applied its findings relating to Article 2.2 of the TBT Agreement to Article 20 of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, pursuant to which ‘the use of a trademark during the course of trade shall not be unjustifiably encumbered by special requirements’.
{"title":"WTO Panel, Australia: CertainMeasures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging,WT/DS435/R, WT/DS441/R, WT/DS4","authors":"T. Gögh","doi":"10.54648/leie2019011","DOIUrl":"https://doi.org/10.54648/leie2019011","url":null,"abstract":"This case review concerns the long-awaited WTO Panel report in the Australia – Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging dispute, circulated to Members on 28 June 2018. In the first part, it examines the factual background of the case detailing Australia’s reasons for pursuing a legitimate public health objective in the form of tobacco plain packaging legislation as well as a brief summary of the other disputes arising from this measure. The second part discusses whether the measure adopted by Australia is a technical regulation that is ‘more traderestrictive than necessary to fulfil a legitimate objective taking account of the risks non-fulfilment would create’ pursuant to Article 2.2 of the Technical Barriers to Trade (TBT) Agreement. Lastly, it details the way in which the Panel applied its findings relating to Article 2.2 of the TBT Agreement to Article 20 of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, pursuant to which ‘the use of a trademark during the course of trade shall not be unjustifiably encumbered by special requirements’.","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":"78563011","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 analyses the justification for the recent enactment in the European Union (EU) of a regulation establishing a framework for the screening of inward foreign direct investment (FDI). It argues that the new regulation, which constitutes a first step for a more comprehensive EU investment screening system, should not be considered to be exclusively aimed at protecting the internal market and defensive Union or Member State interests. Instead, the regulation has a tangible external economic policy justification and outlook because it can be seen as a starting point to build up, at the Union level, possibilities to limit inward FDI, which in turn can be used by the EU as a bargaining chip in its trade and investment negotiations with economically powerful countries, such as the United States or China, in order to achieve, on the basis of reciprocity, better access of EU investors to foreign markets. Paradoxically, establishing a framework for the screening of inward FDI at the Union level can therefore be seen as serving the EU’s constitutionally enshrined goal to achieve further investment liberalization, rather than as shielding the internal market from undesired external influence. This article analyses the justification for the recent enactment in the European Union (EU) of a regulation establishing a framework for the screening of inward foreign direct investment (FDI). It argues that the new regulation, which constitutes a first step for a more comprehensive EU investment screening system, should not be considered to be exclusively aimed at protecting the internal market and defensive Union or Member State interests. Instead, the regulation has a tangible external economic policy justification and outlook because it can be seen as a starting point to build up, at the Union level, possibilities to limit inward FDI, which in turn can be used by the EU as a bargaining chip in its trade and investment negotiations with economically powerful countries, such as the United States or China, in order to achieve, on the basis of reciprocity, better access of EU investors to foreign markets. Paradoxically, establishing a framework for the screening of inward FDI at the Union level can therefore be seen as serving the EU’s constitutionally enshrined goal to achieve further investment liberalization, rather than as shielding the internal market from undesired external influence. This article analyses the justification for the recent enactment in the European Union (EU) of a regulation establishing a framework for the screening of inward foreign direct investment (FDI). It argues that the new regulation, which constitutes a first step for a more comprehensive EU investment screening system, should not be considered to be exclusively aimed at protecting the internal market and defensive Union or Member State interests. Instead, the regulation has a tangible external economic policy justification and outlook because it can be seen as a starting poin
{"title":"The European Unions Foreign Direct Investment Screening Paradox: Tightening Inward Investment Control to Further External Investment Liberalization","authors":"S. Schill","doi":"10.54648/leie2019007","DOIUrl":"https://doi.org/10.54648/leie2019007","url":null,"abstract":"This article analyses the justification for the recent enactment in the European Union (EU) of a regulation establishing a framework for the screening of inward foreign direct investment (FDI). It argues that the new regulation, which constitutes a first step for a more comprehensive EU investment screening system, should not be considered to be exclusively aimed at protecting the internal market and defensive Union or Member State interests. Instead, the regulation has a tangible external economic policy justification and outlook because it can be seen as a starting point to build up, at the Union level, possibilities to limit inward FDI, which in turn can be used by the EU as a bargaining chip in its trade and investment negotiations with economically powerful countries, such as the United States or China, in order to achieve, on the basis of reciprocity, better access of EU investors to foreign markets. Paradoxically, establishing a framework for the screening of inward FDI at the Union level can therefore be seen as serving the EU’s constitutionally enshrined goal to achieve further investment liberalization, rather than as shielding the internal market from undesired external influence. This article analyses the justification for the recent enactment in the European Union (EU) of a regulation establishing a framework for the screening of inward foreign direct investment (FDI). It argues that the new regulation, which constitutes a first step for a more comprehensive EU investment screening system, should not be considered to be exclusively aimed at protecting the internal market and defensive Union or Member State interests. Instead, the regulation has a tangible external economic policy justification and outlook because it can be seen as a starting point to build up, at the Union level, possibilities to limit inward FDI, which in turn can be used by the EU as a bargaining chip in its trade and investment negotiations with economically powerful countries, such as the United States or China, in order to achieve, on the basis of reciprocity, better access of EU investors to foreign markets. Paradoxically, establishing a framework for the screening of inward FDI at the Union level can therefore be seen as serving the EU’s constitutionally enshrined goal to achieve further investment liberalization, rather than as shielding the internal market from undesired external influence. This article analyses the justification for the recent enactment in the European Union (EU) of a regulation establishing a framework for the screening of inward foreign direct investment (FDI). It argues that the new regulation, which constitutes a first step for a more comprehensive EU investment screening system, should not be considered to be exclusively aimed at protecting the internal market and defensive Union or Member State interests. Instead, the regulation has a tangible external economic policy justification and outlook because it can be seen as a starting poin","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":"85387059","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}
One misleading mantra in the Brexit debate is that the EU’s single market freedoms were inseparable. This article takes a micro-legal research approach in examining the question: to what extent would free movement of capital be available to the UK when the UK leaves the EU’s single market? The free movement of capital is the only one of the EU’s fundamental freedoms that extends beyond Member States to also apply to third countries. Like other fundamental freedoms, it extends beyond equal treatment to require market access. This article argues that free movement of capital would still be available to the UK post-Brexit, as all restrictions to free movement of capital are prohibited unless justified under EU law. It argues that as long as the post-Brexit legal context in the UK remains comparable with that of the EU, the justifiable derogations to free movement of capital would not apply against the UK. Thus, the mantra that the EU’s single market freedoms were inseparable is misleading.
{"title":"Brexit and Implications for the Free Movement of Capital","authors":"Jonathan Mukwiri","doi":"10.54648/leie2019002","DOIUrl":"https://doi.org/10.54648/leie2019002","url":null,"abstract":"One misleading mantra in the Brexit debate is that the EU’s single market freedoms were inseparable. This article takes a micro-legal research approach in examining the question: to what extent would free movement of capital be available to the UK when the UK leaves the EU’s single market? The free movement of capital is the only one of the EU’s fundamental freedoms that extends beyond Member States to also apply to third countries. Like other fundamental freedoms, it extends beyond equal treatment to require market access. This article argues that free movement of capital would still be available to the UK post-Brexit, as all restrictions to free movement of capital are prohibited unless justified under EU law. It argues that as long as the post-Brexit legal context in the UK remains comparable with that of the EU, the justifiable derogations to free movement of capital would not apply against the UK. Thus, the mantra that the EU’s single market freedoms were inseparable is misleading.","PeriodicalId":42718,"journal":{"name":"Legal Issues of Economic Integration","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2019-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80629961","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 examines the fate of preferential trade agreements (PTAs) concluded between the United Kingdom (UK), the European Union (EU) and third States after Brexit. It examines EU-only and mixed PTAs separately. Regarding mixed PTAs, it is argued that Brexit will not lead to their automatic termination. The UK will possess all rights and obligations under these agreements, unless they contain provisions limiting their scope, such as respective powers and territorial application clauses, often found in bilateral mixed PTAs. The effect of the former is that the UK will remain Party to mixed PTAs but will not fall within the personal scope of rights and obligations thereunder. This situation gives rise to a series of questions, among others, whether the UK will be able to terminate the treaties and whether survival clauses will be triggered. It is argued that the UK will be able to rely on PTAs’ termination provisions and potentially Article 62 VCLT (fundamental change in circumstances), and that survival clauses are also triggered by permanent de facto termination events. Regarding EU-only treaties, it is argued the UK will be neither bound thereby under international law nor obliged to act in conformity with them under European law.
{"title":"Brexit and Preferential Trade Agreements: Issues of Termination and Survival Clauses","authors":"Eirini Kikarea","doi":"10.54648/leie2019004","DOIUrl":"https://doi.org/10.54648/leie2019004","url":null,"abstract":"This article examines the fate of preferential trade agreements (PTAs) concluded between the United Kingdom (UK), the European Union (EU) and third States after Brexit. It examines EU-only and mixed PTAs separately. Regarding mixed PTAs, it is argued that Brexit will not lead to their automatic termination. The UK will possess all rights and obligations under these agreements, unless they contain provisions limiting their scope, such as respective powers and territorial application clauses, often found in bilateral mixed PTAs. The effect of the former is that the UK will remain Party to mixed PTAs but will not fall within the personal scope of rights and obligations thereunder. This situation gives rise to a series of questions, among others, whether the UK will be able to terminate the treaties and whether survival clauses will be triggered. It is argued that the UK will be able to rely on PTAs’ termination provisions and potentially Article 62 VCLT (fundamental change in circumstances), and that survival clauses are also triggered by permanent de facto termination events. Regarding EU-only treaties, it is argued the UK will be neither bound thereby under international law nor obliged to act in conformity with them under European law.","PeriodicalId":42718,"journal":{"name":"Legal Issues of Economic Integration","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2019-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84028493","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}
China’s requests for consultations with the European Union and the United States formally initiated WTO disputes regarding certain provisions of the European Union and United States Anti-Dumping laws pertaining to the determination of normal value for ‘non-market economy’ countries. By filing such requests, China officially requested theWTODispute Settlement Body to clarify one of the most controversial and difficult to interpret ‘pieces of WTO law’. This article addresses the interpretation of section 15 of China’s Protocol of Accession in light of the principle of effectiveness to offer a different perspective on the ongoing dispute. It analyses whether the expiration of paragraph (a)(ii) will automatically prohibit Member States from deviating from standard rules to calculate normal value after 11 December 2016. It focuses particularly on section 15(d) and the criteria to be used to assess if China is (or is not) a market economy
{"title":"The Principle of Effectiveness in the Interpretation of the Protocol of Accession of China to the World Trade Organization: Market Economy Considerations in Anti-Dumping Investigations","authors":"Roberto Soprano","doi":"10.54648/leie2019003","DOIUrl":"https://doi.org/10.54648/leie2019003","url":null,"abstract":"China’s requests for consultations with the European Union and the United States formally initiated WTO disputes regarding certain provisions of the European Union and United States Anti-Dumping laws pertaining to the determination of normal value for ‘non-market economy’ countries. By filing such requests, China officially requested theWTODispute Settlement Body to clarify one of the most controversial and difficult to interpret ‘pieces of WTO law’. This article addresses the interpretation of section 15 of China’s Protocol of Accession in light of the principle of effectiveness to offer a different perspective on the ongoing dispute. It analyses whether the expiration of paragraph (a)(ii) will automatically prohibit Member States from deviating from standard rules to calculate normal value after 11 December 2016. It focuses particularly on section 15(d) and the criteria to be used to assess if China is (or is not) a market economy","PeriodicalId":42718,"journal":{"name":"Legal Issues of Economic Integration","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2019-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90479702","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 contends that the World Trade Organization (‘WTO’) plays a vital role in the maintenance of international peace through continued international trade. In exploring this argument, the article looks to the history of the General Agreement on Tariffs and Trade (‘GATT 1947’) and the WTO. After doing so, the article analyses the other side of the coin: when trade is weaponized through the use of the General Agreement on Tariffs and Trade (‘GATT 1994’) security exception Article XXI. Lastly, the article discusses the effectiveness of trade sanctions and whether the security exception is in need of reform in order for the WTO to better engage in the pursuit of international peace through international trade.
{"title":"Does Trade Equal Peace? The Role of the WTO in International Peace","authors":"Saba L. Mollaian","doi":"10.54648/leie2019005","DOIUrl":"https://doi.org/10.54648/leie2019005","url":null,"abstract":"This article contends that the World Trade Organization (‘WTO’) plays a vital role in the maintenance of international peace through continued international trade. In exploring this argument, the article looks to the history of the General Agreement on Tariffs and Trade (‘GATT 1947’) and the WTO. After doing so, the article analyses the other side of the coin: when trade is weaponized through the use of the General Agreement on Tariffs and Trade (‘GATT 1994’) security exception Article XXI. Lastly, the article discusses the effectiveness of trade sanctions and whether the security exception is in need of reform in order for the WTO to better engage in the pursuit of international peace through international trade.","PeriodicalId":42718,"journal":{"name":"Legal Issues of Economic Integration","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2019-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90156151","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: International Trade and the Regulation of Responsible Global Value Chains","authors":"","doi":"10.54648/leie2019001","DOIUrl":"https://doi.org/10.54648/leie2019001","url":null,"abstract":"","PeriodicalId":42718,"journal":{"name":"Legal Issues of Economic Integration","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2019-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88493298","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}
Gibraltar is a British Overseas Territory of around 6 square kilometers, inhabited by 30,000 people. Despite its size, it is an important issue within Brexit negotiations. In Gibraltar, 96% of the voters voted to ‘remain’ within the European Union (‘EU’), but are now set to leave when the EU and the United Kingdom (‘UK’) reach a withdrawal agreement. This article examines the question of what stumbling blocks will arise for Gibraltar following Brexit, and which solutions could be considered in order for Gibraltar to have a ‘frictionless’ border with the EU. As Gibraltar’s economy concentrates on the services sector, where not only Gibraltarians but also a lot of Spanish and other EU nationals work, the free movement of services and persons are of particular importance. This article analyses their trade-related consequences, and then focuses on two models that can provide some insight on the future relationship between the EU and the UK, with special consideration for Gibraltar: (1) the ‘reverse Greenland-model’, and (2) the Norwegian model. It concludes that there will definitely be some stumbling blocks on the way, but that the softer the Brexit, the less friction there will be on the border.
{"title":"A Frictionless Border for Gibraltar: Stumbling Blocks and Solutions Following Brexit","authors":"Lilian Meinen","doi":"10.54648/leie2018023","DOIUrl":"https://doi.org/10.54648/leie2018023","url":null,"abstract":"Gibraltar is a British Overseas Territory of around 6 square kilometers, inhabited by 30,000 people. Despite its size, it is an important issue within Brexit negotiations. In Gibraltar, 96% of the voters voted to ‘remain’ within the European Union (‘EU’), but are now set to leave when the EU and the United Kingdom (‘UK’) reach a withdrawal agreement. This article examines the question of what stumbling blocks will arise for Gibraltar following Brexit, and which solutions could be considered in order for Gibraltar to have a ‘frictionless’ border with the EU. As Gibraltar’s economy concentrates on the services sector, where not only Gibraltarians but also a lot of Spanish and other EU nationals work, the free movement of services and persons are of particular importance. This article analyses their trade-related consequences, and then focuses on two models that can provide some insight on the future relationship between the EU and the UK, with special consideration for Gibraltar: (1) the ‘reverse Greenland-model’, and (2) the Norwegian model. It concludes that there will definitely be some stumbling blocks on the way, but that the softer the Brexit, the less friction there will be on the border.","PeriodicalId":42718,"journal":{"name":"Legal Issues of Economic Integration","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2018-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83917709","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}
There are situations in EU law where questions posed to the Court of Justice of the European Union can be considered political questions. Parties before the Court have made a number of attempts to claim that for such political questions, the Court ought to adopt the political question doctrine, and decline to provide a judgment. To date, the Court has refused to explicitly consent to such requests, and it would appear that there is no obvious political question doctrine in EU law. Yet, on closer inspection, there are hints of the doctrine shining through the Court’s case law. The breadth of the EU law means that political questions can arise in many different legal disputes. In particular, given that some matters come close to political developments and choices, it is conceivable that the Court could invoke the political question doctrine at some future juncture. This article goes in search of the doctrine in EU law, and highlights where the Court ought to invoke the doctrine within the constitutional design of the EU treaties in defined circumstances. The contribution embraces the view that if the doctrine is invoked, the Court should set down a specific test with determinable criteria for what constitutes a political question, which it has not done to date.
{"title":"In Search of the Political Question Doctrine in EU Law","authors":"G. Butler","doi":"10.54648/leie2018020","DOIUrl":"https://doi.org/10.54648/leie2018020","url":null,"abstract":"There are situations in EU law where questions posed to the Court of Justice of the European Union can be considered political questions. Parties before the Court have made a number of attempts to claim that for such political questions, the Court ought to adopt the political question doctrine, and decline to provide a judgment. To date, the Court has refused to explicitly consent to such requests, and it would appear that there is no obvious political question doctrine in EU law. Yet, on closer inspection, there are hints of the doctrine shining through the Court’s case law. The breadth of the EU law means that political questions can arise in many different legal disputes. In particular, given that some matters come close to political developments and choices, it is conceivable that the Court could invoke the political question doctrine at some future juncture. This article goes in search of the doctrine in EU law, and highlights where the Court ought to invoke the doctrine within the constitutional design of the EU treaties in defined circumstances. The contribution embraces the view that if the doctrine is invoked, the Court should set down a specific test with determinable criteria for what constitutes a political question, which it has not done to date.","PeriodicalId":42718,"journal":{"name":"Legal Issues of Economic Integration","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2018-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85557509","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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