Abstract In April 2019, the Court of Justice of the EU (‘CJEU’) handed down its Opinion (C-1/17) on the compatibility of the Investment Court System (‘ICS’), that is the Investor-State Dispute Settlement (‘ISDS’) mechanism under the EU-Canada Comprehensive and Economic Trade Agreement (‘CETA’), with EU law. This article puts Opinion 1/17 in its broader (policy and legal) context, focusing on the salient issue of compatibility with the principle of autonomy of the EU legal order. It argues that the Court's openness to this judicial competitor was an acknowledgment of the need to maintain the powers of the Union in international relations. However, Opinion 1/17 should not be perceived as an automatic green light for any future investment court (such as the Multilateral Investment Court) as the autonomy test it introduces is a rather difficult one to pass.
{"title":"The CETA ICS and the Autonomy of the EU Legal Order in Opinion 1/17 – A Compass for the Future","authors":"Maria Fanou","doi":"10.1017/cel.2020.4","DOIUrl":"https://doi.org/10.1017/cel.2020.4","url":null,"abstract":"Abstract In April 2019, the Court of Justice of the EU (‘CJEU’) handed down its Opinion (C-1/17) on the compatibility of the Investment Court System (‘ICS’), that is the Investor-State Dispute Settlement (‘ISDS’) mechanism under the EU-Canada Comprehensive and Economic Trade Agreement (‘CETA’), with EU law. This article puts Opinion 1/17 in its broader (policy and legal) context, focusing on the salient issue of compatibility with the principle of autonomy of the EU legal order. It argues that the Court's openness to this judicial competitor was an acknowledgment of the need to maintain the powers of the Union in international relations. However, Opinion 1/17 should not be perceived as an automatic green light for any future investment court (such as the Multilateral Investment Court) as the autonomy test it introduces is a rather difficult one to pass.","PeriodicalId":52109,"journal":{"name":"Cambridge Yearbook of European Legal Studies","volume":"22 1","pages":"106 - 132"},"PeriodicalIF":0.0,"publicationDate":"2020-08-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cel.2020.4","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48372183","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}
Abstract The lack of clarity as to the scope of the health insurance exception enshrined in Article 206 of the Solvency II Directive has created uncertainties surrounding the implications for government intervention in the private health insurance market. A contentious interpretation of the health insurance exception, offered by former EU Commissioner Bolkestein, and the approach subsequently taken by the Commission and the Court of Justice of the European Union in assessing the compatibility of Member State intervention in private health insurance have led to a divergence in the application of EU law, which further increases uncertainties around the legality of Member State intervention. This article proposes an alternative interpretation of the health insurance exception that draws on a contemporary understanding of private health insurance as a socio-economic institution aimed at achieving a highly competitive social market economy. This alternative interpretation extends the applicability of the health insurance exception from substitutive private health insurance to complementary private health insurance that covers statutory user charges and thus improves the compliance of national health insurance systems in several Member States with EU law and enhances the coherence of EU law.
{"title":"The Compatibility of Private Health Insurance Schemes with EU Law: Applying the Health Insurance Exception beyond Substitutive Private Health Insurance","authors":"B. Nikolić","doi":"10.1017/cel.2020.3","DOIUrl":"https://doi.org/10.1017/cel.2020.3","url":null,"abstract":"Abstract The lack of clarity as to the scope of the health insurance exception enshrined in Article 206 of the Solvency II Directive has created uncertainties surrounding the implications for government intervention in the private health insurance market. A contentious interpretation of the health insurance exception, offered by former EU Commissioner Bolkestein, and the approach subsequently taken by the Commission and the Court of Justice of the European Union in assessing the compatibility of Member State intervention in private health insurance have led to a divergence in the application of EU law, which further increases uncertainties around the legality of Member State intervention. This article proposes an alternative interpretation of the health insurance exception that draws on a contemporary understanding of private health insurance as a socio-economic institution aimed at achieving a highly competitive social market economy. This alternative interpretation extends the applicability of the health insurance exception from substitutive private health insurance to complementary private health insurance that covers statutory user charges and thus improves the compliance of national health insurance systems in several Member States with EU law and enhances the coherence of EU law.","PeriodicalId":52109,"journal":{"name":"Cambridge Yearbook of European Legal Studies","volume":"22 1","pages":"156 - 181"},"PeriodicalIF":0.0,"publicationDate":"2020-06-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cel.2020.3","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43069274","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}
Abstract EU Internal Market law and international arbitration increasingly interact with each other but there are important areas of conflict between the two that represent an obstacle to market integration in a common area of justice. The article examines, from the perspective of EU public economic law, these areas of conflict to assess the extent to which the Internal Market needs harmonised rules on commercial arbitration to support dispute resolution and access to an efficient delivery of justice within its operation. The current state of affairs is unsatisfactory and it lacks legal certainty. If properly regulated, commercial arbitration can become an important instrument functional to EU market efficiency.
{"title":"EU Internal Market Law and the Law of International Commercial Arbitration: Have the EU Chickens Come Home to Roost?","authors":"Federico Ferretti","doi":"10.1017/cel.2020.1","DOIUrl":"https://doi.org/10.1017/cel.2020.1","url":null,"abstract":"Abstract EU Internal Market law and international arbitration increasingly interact with each other but there are important areas of conflict between the two that represent an obstacle to market integration in a common area of justice. The article examines, from the perspective of EU public economic law, these areas of conflict to assess the extent to which the Internal Market needs harmonised rules on commercial arbitration to support dispute resolution and access to an efficient delivery of justice within its operation. The current state of affairs is unsatisfactory and it lacks legal certainty. If properly regulated, commercial arbitration can become an important instrument functional to EU market efficiency.","PeriodicalId":52109,"journal":{"name":"Cambridge Yearbook of European Legal Studies","volume":"22 1","pages":"133 - 155"},"PeriodicalIF":0.0,"publicationDate":"2020-04-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cel.2020.1","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45716349","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}
Free movement of patients has been criticised from the moment that the first patient cases reached the Court of Justice of the European Union (‘CJEU’). The moving patient supposedly increases consumerism, reduces national solidarity, and has a negative impact on the quality of healthcare provided in some Member States. This article challenges the empirical foundations of such criticisms. An empirical analysis of all patient cases before the CJEU shows that a significant number of patients required urgent treatment, that their medical condition was life-threatening, and that they were supported by their treating doctor in seeking treatment in another Member State. Moreover, free movement of patient cases regularly lead to positive changes to national healthcare systems. Therefore, the negative attitude towards free movement of patients should be reconsidered. Patients, doctors, and lawyers must think more strategically about how free movement can be used to improve the quality of healthcare in the EU.
{"title":"The Patient in Free Movement Law: Medical History, Diagnosis, and Prognosis","authors":"Van Leeuwen, Barend","doi":"10.1017/CEL.2019.5","DOIUrl":"https://doi.org/10.1017/CEL.2019.5","url":null,"abstract":"Free movement of patients has been criticised from the moment that the first patient cases reached the Court of Justice of the European Union (‘CJEU’). The moving patient supposedly increases consumerism, reduces national solidarity, and has a negative impact on the quality of healthcare provided in some Member States. This article challenges the empirical foundations of such criticisms. An empirical analysis of all patient cases before the CJEU shows that a significant number of patients required urgent treatment, that their medical condition was life-threatening, and that they were supported by their treating doctor in seeking treatment in another Member State. Moreover, free movement of patient cases regularly lead to positive changes to national healthcare systems. Therefore, the negative attitude towards free movement of patients should be reconsidered. Patients, doctors, and lawyers must think more strategically about how free movement can be used to improve the quality of healthcare in the EU.","PeriodicalId":52109,"journal":{"name":"Cambridge Yearbook of European Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/CEL.2019.5","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46444857","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}
When courts are faced with questions regarding the territorial scope of internal legislation, they are required to engage with controversial issues pertaining to the permissible boundaries of regulatory reach, which go beyond traditional conceptions of state sovereignty and non-intervention on which the functioning of courts is normally based. This Article examines the role of the Court of Justice of the European Union (‘CJEU’) in reviewing the legality and interpretation of the extraterritorial reach of EU environmental law, including animal welfare. It assesses the extent to which judicial review by the CJEU serves as a transnational mechanism for addressing legitimacy concerns raised by the unilateral exercise of EU regulatory power beyond EU borders.
{"title":"The Court of Justice of the European Union as a Transnational Actor through Judicial Review of the Territorial Scope of EU Environmental Law","authors":"Ioanna Hadjiyianni","doi":"10.1017/CEL.2019.4","DOIUrl":"https://doi.org/10.1017/CEL.2019.4","url":null,"abstract":"When courts are faced with questions regarding the territorial scope of internal legislation, they are required to engage with controversial issues pertaining to the permissible boundaries of regulatory reach, which go beyond traditional conceptions of state sovereignty and non-intervention on which the functioning of courts is normally based. This Article examines the role of the Court of Justice of the European Union (‘CJEU’) in reviewing the legality and interpretation of the extraterritorial reach of EU environmental law, including animal welfare. It assesses the extent to which judicial review by the CJEU serves as a transnational mechanism for addressing legitimacy concerns raised by the unilateral exercise of EU regulatory power beyond EU borders.","PeriodicalId":52109,"journal":{"name":"Cambridge Yearbook of European Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/CEL.2019.4","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47920583","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":"CEL volume 21 Cover and Back matter","authors":"","doi":"10.1017/cel.2019.21","DOIUrl":"https://doi.org/10.1017/cel.2019.21","url":null,"abstract":"","PeriodicalId":52109,"journal":{"name":"Cambridge Yearbook of European Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cel.2019.21","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49219566","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":"Editorial – Coming of Age: Twenty-One Volumes of European Legal Studies","authors":"","doi":"10.1017/cel.2019.18","DOIUrl":"https://doi.org/10.1017/cel.2019.18","url":null,"abstract":"","PeriodicalId":52109,"journal":{"name":"Cambridge Yearbook of European Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cel.2019.18","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44466723","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 European Pillar of Social Rights is a high-profile political reaffirmation of twenty social rights and principles. Its implementation deploys the full EU governance arsenal: regulations, directives, recommendations, communications, new institutions, funding actions, and country-specific recommendations. As such, the static imagery evoked by a ‘pillar’ does not capture the true nature of the initiative, which is dynamic and fluid, wide-ranging, and permeating. An equation of the Pillar with the set of twenty rights and principles it proclaims similarly fails to capture its true significance, which lies in its programmatic nature. Several important measures have already been proposed as part of this new social action plan for Europe, some of which are close to adoption. This Article analyses the meaning of the Pillar and its potential significance, by considering its content sensu largo, and its broader context. It argues that even if the Pillar cannot address all the EU's social failings, it has put a surprising social spin on the Better Regulation Agenda that was threatening to erode the social acquis, it has rekindled the EU's relationship with the International Labour Organization and Council of Europe, and it helps rebalance the EU's output by reviving the use of the Treaty's Social Title.
{"title":"The European Pillar of Social Rights: An Assessment of its Meaning and Significance","authors":"S. Garben","doi":"10.1017/CEL.2019.3","DOIUrl":"https://doi.org/10.1017/CEL.2019.3","url":null,"abstract":"The European Pillar of Social Rights is a high-profile political reaffirmation of twenty social rights and principles. Its implementation deploys the full EU governance arsenal: regulations, directives, recommendations, communications, new institutions, funding actions, and country-specific recommendations. As such, the static imagery evoked by a ‘pillar’ does not capture the true nature of the initiative, which is dynamic and fluid, wide-ranging, and permeating. An equation of the Pillar with the set of twenty rights and principles it proclaims similarly fails to capture its true significance, which lies in its programmatic nature. Several important measures have already been proposed as part of this new social action plan for Europe, some of which are close to adoption. This Article analyses the meaning of the Pillar and its potential significance, by considering its content sensu largo, and its broader context. It argues that even if the Pillar cannot address all the EU's social failings, it has put a surprising social spin on the Better Regulation Agenda that was threatening to erode the social acquis, it has rekindled the EU's relationship with the International Labour Organization and Council of Europe, and it helps rebalance the EU's output by reviving the use of the Treaty's Social Title.","PeriodicalId":52109,"journal":{"name":"Cambridge Yearbook of European Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/CEL.2019.3","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43642211","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}
Traditionally, EU state aid law has been attached to the goals of maintaining free competition and preventing the distortionary effects of Member States’ economic intervention, while social considerations have been considered immaterial to state aid control. However, in more recent years, EU state aid law has acquired a clearer ‘social dimension’, indirectly streamlining national subsidies towards social goals. The entry into force of the Treaty of Lisbon, and particularly of Articles 3(3) TEU and 9 TFEU, has had an impact on the way in which social goals have been taken into account in the application of the state aid provisions. In the last decade, the European Commission has sought out a more appropriate balance between the main objective of preserving competition in the internal market on the one hand, and social objectives, also enshrined nowadays in the Treaties, on the other. This ‘social dimension’ is still underdeveloped, but emerges to varying degrees when looking respectively at the definition of state aid under Article 107(1) TFEU, at the scope of the derogations under Articles 107(2) and 107(3) TFEU and at the secondary legislation adopted for their implementation.
{"title":"The Social Dimension of EU State Aid Law and Policy","authors":"D. Ferri, J. López","doi":"10.1017/CEL.2019.2","DOIUrl":"https://doi.org/10.1017/CEL.2019.2","url":null,"abstract":"Traditionally, EU state aid law has been attached to the goals of maintaining free competition and preventing the distortionary effects of Member States’ economic intervention, while social considerations have been considered immaterial to state aid control. However, in more recent years, EU state aid law has acquired a clearer ‘social dimension’, indirectly streamlining national subsidies towards social goals. The entry into force of the Treaty of Lisbon, and particularly of Articles 3(3) TEU and 9 TFEU, has had an impact on the way in which social goals have been taken into account in the application of the state aid provisions. In the last decade, the European Commission has sought out a more appropriate balance between the main objective of preserving competition in the internal market on the one hand, and social objectives, also enshrined nowadays in the Treaties, on the other. This ‘social dimension’ is still underdeveloped, but emerges to varying degrees when looking respectively at the definition of state aid under Article 107(1) TFEU, at the scope of the derogations under Articles 107(2) and 107(3) TFEU and at the secondary legislation adopted for their implementation.","PeriodicalId":52109,"journal":{"name":"Cambridge Yearbook of European Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/CEL.2019.2","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43281342","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 recent years, pesticides have captured the attention of both policymakers and the general public. A particular focus has been the transparency of the EU-level procedure for approving active substances, spurred by controversies surrounding the active substance glyphosate. Active substances are the ingredient in pesticides with the pesticidal effect. Once an active substance is approved at EU level, the pesticide containing that active substance must be authorised by each Member State. For this purpose, the EU's 2009 Plant Protection Product Regulation divides Member States into three zones—Northern, Central, and Southern—within which, zonal rapporteur Member States evaluate applications for authorisation. National authorisation decisions are based on these zonal evaluations. This novel system governing pesticides is under-researched. Furthermore, unlike active substance approval, the transparency of pesticide authorisation escapes public and policy scrutiny. Drawing on empirical research conducted for the European Parliament, this article evaluates the transparency of the zonal pesticide authorisation procedure. It thus contributes to the literature on transparency a detailed exploration of transparency in a highly complex, decentred, and polycentric risk regulation regime. While it finds that the zonal pesticide authorisation procedure, generally speaking, does not operate transparently, it argues further that levels of transparency within the regime as a whole may vary significantly depending on multiple different factors. It introduces the concept of ‘chiaroscuro regulation’ to characterise and understand these varying levels of transparency across different elements of the regime and considers some of its implications.
{"title":"Shadow Zones: Transparency and Pesticides Regulation in the European Union","authors":"O. Hamlyn","doi":"10.1017/cel.2019.15","DOIUrl":"https://doi.org/10.1017/cel.2019.15","url":null,"abstract":"In recent years, pesticides have captured the attention of both policymakers and the general public. A particular focus has been the transparency of the EU-level procedure for approving active substances, spurred by controversies surrounding the active substance glyphosate. Active substances are the ingredient in pesticides with the pesticidal effect. Once an active substance is approved at EU level, the pesticide containing that active substance must be authorised by each Member State. For this purpose, the EU's 2009 Plant Protection Product Regulation divides Member States into three zones—Northern, Central, and Southern—within which, zonal rapporteur Member States evaluate applications for authorisation. National authorisation decisions are based on these zonal evaluations. This novel system governing pesticides is under-researched. Furthermore, unlike active substance approval, the transparency of pesticide authorisation escapes public and policy scrutiny. Drawing on empirical research conducted for the European Parliament, this article evaluates the transparency of the zonal pesticide authorisation procedure. It thus contributes to the literature on transparency a detailed exploration of transparency in a highly complex, decentred, and polycentric risk regulation regime. While it finds that the zonal pesticide authorisation procedure, generally speaking, does not operate transparently, it argues further that levels of transparency within the regime as a whole may vary significantly depending on multiple different factors. It introduces the concept of ‘chiaroscuro regulation’ to characterise and understand these varying levels of transparency across different elements of the regime and considers some of its implications.","PeriodicalId":52109,"journal":{"name":"Cambridge Yearbook of European Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-11-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cel.2019.15","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48093973","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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