This article explores the concept of European Union (EU) resilience in the area of investment protection and Investor–State dispute settlement. The article adopts a functional approach to investment protection and suggests that reforming dispute settlement procedures in line with current Commission initiatives is key to promoting open strategic autonomy for the EU. Support for those initiatives is however weak, also among EU Member States. It is argued that EU resilience requires new tools for more unity and coherence in external EU action, both generally and for the reform of Investor–State dispute settlement in particular. The tool devised here is an increased loyalty standard coupled with a justification test, based on both a modernized comprehensive reading of loyalty obligations in primary law and the effectiveness principle and rationale as applied in case law. The novel approach promises significantly better results in terms of commanding coherence in external action while fully respecting the principle of conferred powers. It challenges traditional power dynamics, but incorporates a bold vision for external EU action that is truly autonomous and assertive.
{"title":"EU resilience in investment protection: a case for revisiting and reinforcing the loyalty principle in EU external relations","authors":"Thomas Jaeger","doi":"10.1093/yel/yeae001","DOIUrl":"https://doi.org/10.1093/yel/yeae001","url":null,"abstract":"\u0000 This article explores the concept of European Union (EU) resilience in the area of investment protection and Investor–State dispute settlement. The article adopts a functional approach to investment protection and suggests that reforming dispute settlement procedures in line with current Commission initiatives is key to promoting open strategic autonomy for the EU. Support for those initiatives is however weak, also among EU Member States. It is argued that EU resilience requires new tools for more unity and coherence in external EU action, both generally and for the reform of Investor–State dispute settlement in particular. The tool devised here is an increased loyalty standard coupled with a justification test, based on both a modernized comprehensive reading of loyalty obligations in primary law and the effectiveness principle and rationale as applied in case law. The novel approach promises significantly better results in terms of commanding coherence in external action while fully respecting the principle of conferred powers. It challenges traditional power dynamics, but incorporates a bold vision for external EU action that is truly autonomous and assertive.","PeriodicalId":506840,"journal":{"name":"Yearbook of European Law","volume":"67 S10","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-04-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140709497","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}
During the coronavirus disease (COVID-19) pandemic, the European Union (EU) took the unprecedented step of borrowing 750 billion euros on capital markets, part of which was to be spent in the form of grants. As prior interpretations of the Union’s constitution tended to suggest that it had no power for deficit spending, NextGenerationEU (NGEU) arguably constitutes a major constitutional transformation for the Union. As so often in the literature on the EU, the comparison was made with the federal system of the USA: Commentators likened the Union’s constitutional transformation to the transformation engineered by Hamilton, the financial founding father of the USA, as well as Roosevelt’s New Deal. When the USA was teetering on the brink of bankruptcy, Hamilton transformed the landscape of public debt in the USA by proposing to restructure and assume the debt of the states on the balance sheet of the federal government. For the first time, the public debt of the federal government of the USA played a critical role in its economy. The Great Depression prompted another transformation for the finances of the USA. Roosevelt promised his voters to bring back economic growth. During Roosevelt’s tenure in office, the public borrowing of the USA went up significantly. This contribution examines the constitutional controversies provoked by Hamilton’s and Roosevelt’s transformative policies. It argues that, in spite of some similarities, the question of the constitutionality of deficit spending was controversial neither in Hamilton’s nor in Roosevelt’s day. More fundamentally, it argues that both Roosevelt and Hamilton had a transformative vision for the economy not shared by NGEU.
{"title":"NextGenerationEU: Hamiltonian moment or European New Deal?","authors":"Pieter-Augustijn Van Malleghem","doi":"10.1093/yel/yead009","DOIUrl":"https://doi.org/10.1093/yel/yead009","url":null,"abstract":"\u0000 During the coronavirus disease (COVID-19) pandemic, the European Union (EU) took the unprecedented step of borrowing 750 billion euros on capital markets, part of which was to be spent in the form of grants. As prior interpretations of the Union’s constitution tended to suggest that it had no power for deficit spending, NextGenerationEU (NGEU) arguably constitutes a major constitutional transformation for the Union. As so often in the literature on the EU, the comparison was made with the federal system of the USA: Commentators likened the Union’s constitutional transformation to the transformation engineered by Hamilton, the financial founding father of the USA, as well as Roosevelt’s New Deal. When the USA was teetering on the brink of bankruptcy, Hamilton transformed the landscape of public debt in the USA by proposing to restructure and assume the debt of the states on the balance sheet of the federal government. For the first time, the public debt of the federal government of the USA played a critical role in its economy. The Great Depression prompted another transformation for the finances of the USA. Roosevelt promised his voters to bring back economic growth. During Roosevelt’s tenure in office, the public borrowing of the USA went up significantly. This contribution examines the constitutional controversies provoked by Hamilton’s and Roosevelt’s transformative policies. It argues that, in spite of some similarities, the question of the constitutionality of deficit spending was controversial neither in Hamilton’s nor in Roosevelt’s day. More fundamentally, it argues that both Roosevelt and Hamilton had a transformative vision for the economy not shared by NGEU.","PeriodicalId":506840,"journal":{"name":"Yearbook of European Law","volume":" 39","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-01-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139618920","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 ambiguous nature of the internal market allows for EU legislative input on two tensions animating this field since its inception, those being how to divide power between the EU and Member States and how to reconcile the requirements of integration and regulation. The Court can sometimes struggle with accommodating such input with its Treaty interpretation, leading to further tension with the EU legislator. In the internal market for goods, however, it can rely on the Legislative Priority Rule to resolve disputes in a coherent, Treaty-compliant manner. Casting exhaustive EU legislation as the sole norm against which to assess national product measures, to the exclusion of Articles 34–36 of the Treaty on the Functioning of the European Union (TFEU), this longstanding Rule is, from one perspective, a simple procedural tool to establish the Court’s framework of reference. In reality, however, invoking (or excluding) the Rule can have a substantive and institutional dimension, as its application (or not) engages the relationships between national, secondary, and primary law and, by extension, the Member States, EU legislator, and Court. On the one hand, the Rule enforces EU primacy by pre-empting national competence in the presence of harmonization. On the other, by suspending direct application of Articles 34–35 TFEU, it also implies deference to the EU legislator, and indirectly to the Member States, which enjoy discretion to set standards and determine how power is shared. As a result, while Member States cannot avoid free movement obligations, they can defend national rules by reference to this EU standard to which they have contributed. There is in other words an alignment under the Rule between the dynamics of Exit and Voice, with the Court exercising boundary control to ensure compliance with primary law. It is on this basis that I have come to identify the Legislative Priority Rule as a sort of ‘constitutional compass’ to guide the distribution of power in the internal market for goods. Despite this key role, however, its existence and impact remain relatively unknown or at best ignored, reflecting a gap in understanding the Court’s toolbox for review and a failure to appreciate the role of secondary legislation in building a stable, Treaty-compliant regulatory system.
{"title":"Introducing the legislative priority rule: a constitutional compass for the Court","authors":"Eadaoin Ní Chaoimh","doi":"10.1093/yel/yead014","DOIUrl":"https://doi.org/10.1093/yel/yead014","url":null,"abstract":"\u0000 The ambiguous nature of the internal market allows for EU legislative input on two tensions animating this field since its inception, those being how to divide power between the EU and Member States and how to reconcile the requirements of integration and regulation. The Court can sometimes struggle with accommodating such input with its Treaty interpretation, leading to further tension with the EU legislator. In the internal market for goods, however, it can rely on the Legislative Priority Rule to resolve disputes in a coherent, Treaty-compliant manner. Casting exhaustive EU legislation as the sole norm against which to assess national product measures, to the exclusion of Articles 34–36 of the Treaty on the Functioning of the European Union (TFEU), this longstanding Rule is, from one perspective, a simple procedural tool to establish the Court’s framework of reference. In reality, however, invoking (or excluding) the Rule can have a substantive and institutional dimension, as its application (or not) engages the relationships between national, secondary, and primary law and, by extension, the Member States, EU legislator, and Court. On the one hand, the Rule enforces EU primacy by pre-empting national competence in the presence of harmonization. On the other, by suspending direct application of Articles 34–35 TFEU, it also implies deference to the EU legislator, and indirectly to the Member States, which enjoy discretion to set standards and determine how power is shared. As a result, while Member States cannot avoid free movement obligations, they can defend national rules by reference to this EU standard to which they have contributed. There is in other words an alignment under the Rule between the dynamics of Exit and Voice, with the Court exercising boundary control to ensure compliance with primary law. It is on this basis that I have come to identify the Legislative Priority Rule as a sort of ‘constitutional compass’ to guide the distribution of power in the internal market for goods. Despite this key role, however, its existence and impact remain relatively unknown or at best ignored, reflecting a gap in understanding the Court’s toolbox for review and a failure to appreciate the role of secondary legislation in building a stable, Treaty-compliant regulatory system.","PeriodicalId":506840,"journal":{"name":"Yearbook of European Law","volume":"110 20","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139390905","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 is a burgeoning legal literature about the legal underpinnings of global value chains (GVCs). This article contributes to this literature through the lens of European Union (EU) law and proposes a different conceptual way to read GVCs legally. To that end, the contribution proposes understanding the evolving EU law on GVCs as a process of institutionalization leading to at least three legal forms. In EU company law, GVCs manifest actor-centrically as corporate obligations to govern the value chain. This mostly happens in the policies related to sustainability, but also features in some digitalization policies. In EU consumer law, the value chain appears as a collective network of actors that also bears collective responsibility towards the consumer for the production process. Moreover, in EU market practices and trade law, the value chain is approached in a de-personified manner by, on the one hand, targeting products relating to the territory (import/internal market access) and, on the other hand, trading practices in relations characterised by power asymmetry. These findings suggests that, rather than identifying a uniform legal concept of GVCs in EU law, a fragmented picture emerges in which different sub-areas of EU law develop different, partly even opposing, legal understandings of GVCs.
{"title":"Global value chains in EU law","authors":"Anna Beckers","doi":"10.1093/yel/yead010","DOIUrl":"https://doi.org/10.1093/yel/yead010","url":null,"abstract":"There is a burgeoning legal literature about the legal underpinnings of global value chains (GVCs). This article contributes to this literature through the lens of European Union (EU) law and proposes a different conceptual way to read GVCs legally. To that end, the contribution proposes understanding the evolving EU law on GVCs as a process of institutionalization leading to at least three legal forms. In EU company law, GVCs manifest actor-centrically as corporate obligations to govern the value chain. This mostly happens in the policies related to sustainability, but also features in some digitalization policies. In EU consumer law, the value chain appears as a collective network of actors that also bears collective responsibility towards the consumer for the production process. Moreover, in EU market practices and trade law, the value chain is approached in a de-personified manner by, on the one hand, targeting products relating to the territory (import/internal market access) and, on the other hand, trading practices in relations characterised by power asymmetry. These findings suggests that, rather than identifying a uniform legal concept of GVCs in EU law, a fragmented picture emerges in which different sub-areas of EU law develop different, partly even opposing, legal understandings of GVCs.","PeriodicalId":506840,"journal":{"name":"Yearbook of European Law","volume":"220 ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139177509","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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