Abstract How to understand and deal with the principle of mutual trust, its emanations, interpretations, and imperatives has in recent years become one of the central and most critical issues in the development of the Area of Freedom Security and Justice (AFSJ). Civil justice may be the dark horse with respect to mutual trust among the policy areas of the AFSJ in the sense that it may show useful but hitherto hidden possibilities and have an un-tipped winning strategy. In particular, the balancing safeguards in legislation, the importance of which have been confirmed in case law, are important to ensure the fundamental right to a fair trial. However, that does not mean that mutual trust does not pose challenges in the context of civil justice. Hence, it remains important to focus on how—normatively, and by which regulatory means—to support mutual trust as well as how to balance, and perhaps limit, its implementation in order to enhance its legitimacy. In addition, the recent pressures towards harmonisation need to be carefully analysed.
{"title":"Mutual Trust and the Dark Horse of Civil Justice","authors":"Eva Storskrubb","doi":"10.1017/cel.2018.2","DOIUrl":"https://doi.org/10.1017/cel.2018.2","url":null,"abstract":"Abstract How to understand and deal with the principle of mutual trust, its emanations, interpretations, and imperatives has in recent years become one of the central and most critical issues in the development of the Area of Freedom Security and Justice (AFSJ). Civil justice may be the dark horse with respect to mutual trust among the policy areas of the AFSJ in the sense that it may show useful but hitherto hidden possibilities and have an un-tipped winning strategy. In particular, the balancing safeguards in legislation, the importance of which have been confirmed in case law, are important to ensure the fundamental right to a fair trial. However, that does not mean that mutual trust does not pose challenges in the context of civil justice. Hence, it remains important to focus on how—normatively, and by which regulatory means—to support mutual trust as well as how to balance, and perhaps limit, its implementation in order to enhance its legitimacy. In addition, the recent pressures towards harmonisation need to be carefully analysed.","PeriodicalId":52109,"journal":{"name":"Cambridge Yearbook of European Legal Studies","volume":"20 1","pages":"179 - 201"},"PeriodicalIF":0.0,"publicationDate":"2018-05-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cel.2018.2","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47967477","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 19 Cover and Front matter","authors":"","doi":"10.1017/cel.2017.13","DOIUrl":"https://doi.org/10.1017/cel.2017.13","url":null,"abstract":"","PeriodicalId":52109,"journal":{"name":"Cambridge Yearbook of European Legal Studies","volume":"19 1","pages":"f1 - f5"},"PeriodicalIF":0.0,"publicationDate":"2017-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cel.2017.13","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49299462","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 19 Cover and Back matter","authors":"","doi":"10.1017/cel.2017.14","DOIUrl":"https://doi.org/10.1017/cel.2017.14","url":null,"abstract":"","PeriodicalId":52109,"journal":{"name":"Cambridge Yearbook of European Legal Studies","volume":"19 1","pages":"b1 - b1"},"PeriodicalIF":0.0,"publicationDate":"2017-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cel.2017.14","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45189983","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 In the Brexit referendum of 23 June 2016, voters in England and Wales voted to leave the EU, while in Scotland and Northern Ireland they voted to remain. Following that, there has been a debate about how it would be possible to achieve the continuing presence in the single market of the UK constituent nations that do not want to be taken out against their will. This paper explores two pathways for Scotland and Northern Ireland to remain in the EU and/or the single market. The first entails the achievement of Scottish independence and the reunification of Ireland through democratic referendums. To this effect, the paper reviews the right of secession of those two constituent nations under UK constitutional law. It revisits the debate on the appropriate legal basis regulating Scotland’s future EU accession and discusses the Irish reunification from an EU law perspective. The second pathway explores how it would be possible for Scotland and Northern Ireland to remain in the EU and/or the single market even without seceding from the UK. In order to do that, the paper points to the remarkable flexibility of the EU legal order as evidenced in numerous cases of differentiated application of Union law. The paper shows that the EU possesses the necessary legal instruments to accommodate the divergent aspirations of the UK constituent nations.
{"title":"Territorial Differentiation in EU Law: Can Scotland and Northern Ireland Remain in the EU and/or the Single Market?","authors":"N. Skoutaris","doi":"10.1017/CEL.2017.11","DOIUrl":"https://doi.org/10.1017/CEL.2017.11","url":null,"abstract":"Abstract In the Brexit referendum of 23 June 2016, voters in England and Wales voted to leave the EU, while in Scotland and Northern Ireland they voted to remain. Following that, there has been a debate about how it would be possible to achieve the continuing presence in the single market of the UK constituent nations that do not want to be taken out against their will. This paper explores two pathways for Scotland and Northern Ireland to remain in the EU and/or the single market. The first entails the achievement of Scottish independence and the reunification of Ireland through democratic referendums. To this effect, the paper reviews the right of secession of those two constituent nations under UK constitutional law. It revisits the debate on the appropriate legal basis regulating Scotland’s future EU accession and discusses the Irish reunification from an EU law perspective. The second pathway explores how it would be possible for Scotland and Northern Ireland to remain in the EU and/or the single market even without seceding from the UK. In order to do that, the paper points to the remarkable flexibility of the EU legal order as evidenced in numerous cases of differentiated application of Union law. The paper shows that the EU possesses the necessary legal instruments to accommodate the divergent aspirations of the UK constituent nations.","PeriodicalId":52109,"journal":{"name":"Cambridge Yearbook of European Legal Studies","volume":"19 1","pages":"287 - 310"},"PeriodicalIF":0.0,"publicationDate":"2017-11-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/CEL.2017.11","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44552727","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 Brexit has the capacity to impact heavily on the agricultural sector across the United Kingdom in that it is a sector which has been both in receipt of substantial expenditure under the Common Agricultural Policy and subject to a pattern of close regulation at European Union level. This article will explore the legal implications for post-Brexit agricultural support, proceeding in three stages. First, there will be an outline of the current structure of the industry, with particular reference to its diversity in terms of physical landscape, operational scale and legal foundations. Secondly, there will be discussion of emerging policy within both central UK government and the devolved administrations. In this context, specific attention will be directed to the likely extent of funding and the proposed drive towards higher standards in environmental protection and animal welfare. And, in each case, account will also be taken of specific implications which flow from overarching World Trade Organization rules. Thirdly, there will be consideration of the potentially difficult issues which arise as a result of agriculture being a devolved matter, different policy imperatives already becoming evident across the constituent parts of the UK. For the present, the prospect is that a bespoke support regime will survive Brexit and, in this sense, agricultural ‘exceptionalism’ will continue. However, the more precise form of such a regime remains as yet work-in-progress and its realisation will present considerable challenges not only in political terms, but also by reason of the complex legal geometry in which World Trade Organization rules and the constitutional rights of the devolved administrations are weighty factors.
{"title":"Brexit and Agriculture: Implementing a New Legal Framework for Agricultural Support","authors":"M. Cardwell","doi":"10.1017/cel.2017.10","DOIUrl":"https://doi.org/10.1017/cel.2017.10","url":null,"abstract":"Abstract Brexit has the capacity to impact heavily on the agricultural sector across the United Kingdom in that it is a sector which has been both in receipt of substantial expenditure under the Common Agricultural Policy and subject to a pattern of close regulation at European Union level. This article will explore the legal implications for post-Brexit agricultural support, proceeding in three stages. First, there will be an outline of the current structure of the industry, with particular reference to its diversity in terms of physical landscape, operational scale and legal foundations. Secondly, there will be discussion of emerging policy within both central UK government and the devolved administrations. In this context, specific attention will be directed to the likely extent of funding and the proposed drive towards higher standards in environmental protection and animal welfare. And, in each case, account will also be taken of specific implications which flow from overarching World Trade Organization rules. Thirdly, there will be consideration of the potentially difficult issues which arise as a result of agriculture being a devolved matter, different policy imperatives already becoming evident across the constituent parts of the UK. For the present, the prospect is that a bespoke support regime will survive Brexit and, in this sense, agricultural ‘exceptionalism’ will continue. However, the more precise form of such a regime remains as yet work-in-progress and its realisation will present considerable challenges not only in political terms, but also by reason of the complex legal geometry in which World Trade Organization rules and the constitutional rights of the devolved administrations are weighty factors.","PeriodicalId":52109,"journal":{"name":"Cambridge Yearbook of European Legal Studies","volume":"19 1","pages":"311 - 335"},"PeriodicalIF":0.0,"publicationDate":"2017-11-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cel.2017.10","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49296522","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 Whilst the European Union’s aim of achieving an ‘ever closer Union’ is not an objective of EEA cooperation, homogeneity demands that we follow the same path: as the Union gets ever closer, so too does EEA cooperation, in light of the demands of the fundamental principle of homogeneity. This is particularly well demonstrated by looking at developments in the field of the free movement of persons. The case law of the Court of Justice of the European Free Trade Association (EFTA Court) in this field shows that in situations where homogeneity is put to the test, there seems little to suggest that a more national sovereignty-friendly approach has been adopted than under EU law. Notwithstanding the integral differences between the EU and EEA legal constructs, the EFTA Court has proven highly adept at keeping pace with EU developments in the field through a number of bold and creative interpretations of EEA law, and by using different tools to arrive at uniform conclusions.
{"title":"Square Pegs and Round Holes: The Free Movement of Persons Under EEA Law","authors":"C. Franklin","doi":"10.1017/cel.2017.8","DOIUrl":"https://doi.org/10.1017/cel.2017.8","url":null,"abstract":"Abstract Whilst the European Union’s aim of achieving an ‘ever closer Union’ is not an objective of EEA cooperation, homogeneity demands that we follow the same path: as the Union gets ever closer, so too does EEA cooperation, in light of the demands of the fundamental principle of homogeneity. This is particularly well demonstrated by looking at developments in the field of the free movement of persons. The case law of the Court of Justice of the European Free Trade Association (EFTA Court) in this field shows that in situations where homogeneity is put to the test, there seems little to suggest that a more national sovereignty-friendly approach has been adopted than under EU law. Notwithstanding the integral differences between the EU and EEA legal constructs, the EFTA Court has proven highly adept at keeping pace with EU developments in the field through a number of bold and creative interpretations of EEA law, and by using different tools to arrive at uniform conclusions.","PeriodicalId":52109,"journal":{"name":"Cambridge Yearbook of European Legal Studies","volume":"19 1","pages":"165 - 186"},"PeriodicalIF":0.0,"publicationDate":"2017-10-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cel.2017.8","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45409598","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 Direct democracy exhibits both promise and peril for the EU. The referendum has been deployed by Member States in a way that has shaped and will continue to shape the EU’s geographical boundaries, its constitutional evolution, and salient EU policy matters. The referendum’s promise is to accord a high degree of legitimacy to a political decision, but that promise varies across different types of EU referendum. Their peril for the EU has become increasingly apparent as they have proliferated in number and type and with a growing failure rate. In contrast, the European Citizens’ Initiative is intended to harness the promise of direct democracy for the EU. But current practice raises the question of whether the failure to satisfy the ambitions placed on this novel instrument could, paradoxically, become a source of peril. Contrary to an increasingly pessimistic narrative, it is concluded that practice under the ECI exhibits promise and that the future of this instruments appears bright.
{"title":"The Promise and Perils of Direct Democracy for the European Union","authors":"Fernando Mendez, Mario A. Mendez","doi":"10.1017/cel.2017.7","DOIUrl":"https://doi.org/10.1017/cel.2017.7","url":null,"abstract":"Abstract Direct democracy exhibits both promise and peril for the EU. The referendum has been deployed by Member States in a way that has shaped and will continue to shape the EU’s geographical boundaries, its constitutional evolution, and salient EU policy matters. The referendum’s promise is to accord a high degree of legitimacy to a political decision, but that promise varies across different types of EU referendum. Their peril for the EU has become increasingly apparent as they have proliferated in number and type and with a growing failure rate. In contrast, the European Citizens’ Initiative is intended to harness the promise of direct democracy for the EU. But current practice raises the question of whether the failure to satisfy the ambitions placed on this novel instrument could, paradoxically, become a source of peril. Contrary to an increasingly pessimistic narrative, it is concluded that practice under the ECI exhibits promise and that the future of this instruments appears bright.","PeriodicalId":52109,"journal":{"name":"Cambridge Yearbook of European Legal Studies","volume":"19 1","pages":"48 - 85"},"PeriodicalIF":0.0,"publicationDate":"2017-10-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cel.2017.7","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42489317","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 – Challenging Times","authors":"Kenneth A. Armstrong","doi":"10.1017/CEL.2017.12","DOIUrl":"https://doi.org/10.1017/CEL.2017.12","url":null,"abstract":"","PeriodicalId":52109,"journal":{"name":"Cambridge Yearbook of European Legal Studies","volume":"19 1","pages":"1 - 2"},"PeriodicalIF":0.0,"publicationDate":"2017-10-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/CEL.2017.12","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44559852","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 Even though the bail-in tool is potentially helpful in resolving banks in crisis, it may still create the same issues that resolution is meant to prevent and/or avoid, namely contagion, financial instability and also systemic risk. Recent cases of bank restructuring have demonstrated that there are situations in which the use of the bail-in tool could end up being dangerous for the stability of the financial system. Obviously in such cases, the write down and/or conversion into equity of the bank’s liabilities must be avoided. At the same time, however, the disapplication of bail-in makes the provision of external resources necessary to rescue effectively the bank in crisis. The EU legislator was aware of these potential issues and for this reason introduced a number of rules allowing, in certain situations, both the disapplication of the bail-in tool and the provision of external financing. Nevertheless, when the provision of external financing comes from the Member States, it has to comply with the rules of the State aid framework set by the Treaty on the Functioning of the European Union (TFEU) and applied by the European Commission. In this article, it is argued that despite the strict rules on State aid, there is still room to manage even difficult banking crisis situations in which the application of the bail-in tool could be counterproductive and therefore public intervention should take place through the so-called precautionary recapitalisation instead. However, in this regard, it is crucially important that the authorities intervene before the bank in trouble ‘crosses the line’ of insolvency, as some recent cases of Greek and Italian banks have demonstrated.
{"title":"Greek and Italian ‘Lessons’ on Bank Restructuring: Is Precautionary Recapitalisation the Way Forward?","authors":"Marco Bodellini","doi":"10.1017/cel.2017.6","DOIUrl":"https://doi.org/10.1017/cel.2017.6","url":null,"abstract":"Abstract Even though the bail-in tool is potentially helpful in resolving banks in crisis, it may still create the same issues that resolution is meant to prevent and/or avoid, namely contagion, financial instability and also systemic risk. Recent cases of bank restructuring have demonstrated that there are situations in which the use of the bail-in tool could end up being dangerous for the stability of the financial system. Obviously in such cases, the write down and/or conversion into equity of the bank’s liabilities must be avoided. At the same time, however, the disapplication of bail-in makes the provision of external resources necessary to rescue effectively the bank in crisis. The EU legislator was aware of these potential issues and for this reason introduced a number of rules allowing, in certain situations, both the disapplication of the bail-in tool and the provision of external financing. Nevertheless, when the provision of external financing comes from the Member States, it has to comply with the rules of the State aid framework set by the Treaty on the Functioning of the European Union (TFEU) and applied by the European Commission. In this article, it is argued that despite the strict rules on State aid, there is still room to manage even difficult banking crisis situations in which the application of the bail-in tool could be counterproductive and therefore public intervention should take place through the so-called precautionary recapitalisation instead. However, in this regard, it is crucially important that the authorities intervene before the bank in trouble ‘crosses the line’ of insolvency, as some recent cases of Greek and Italian banks have demonstrated.","PeriodicalId":52109,"journal":{"name":"Cambridge Yearbook of European Legal Studies","volume":"19 1","pages":"144 - 164"},"PeriodicalIF":0.0,"publicationDate":"2017-09-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cel.2017.6","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47628722","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 How should the European Union cope with Member States that no longer respect the basic values of the Union? This article reviews the responses of the major European Union institutions to Poland and Hungary as their governments removed checks on their power, eliminated the independence of judiciaries and failed to honour their European commitments. As the article demonstrates, the responses of EU institutions have so far been ineffective in bringing these Member States back into line with European values. We examine the various proposals that have been made to do better, concluding that there is promise in some legal strategies that are available now, but have yet to be tried.
{"title":"Illiberalism Within: Rule of Law Backsliding in the EU","authors":"Laurent Pech, K. Scheppele","doi":"10.1017/cel.2017.9","DOIUrl":"https://doi.org/10.1017/cel.2017.9","url":null,"abstract":"Abstract How should the European Union cope with Member States that no longer respect the basic values of the Union? This article reviews the responses of the major European Union institutions to Poland and Hungary as their governments removed checks on their power, eliminated the independence of judiciaries and failed to honour their European commitments. As the article demonstrates, the responses of EU institutions have so far been ineffective in bringing these Member States back into line with European values. We examine the various proposals that have been made to do better, concluding that there is promise in some legal strategies that are available now, but have yet to be tried.","PeriodicalId":52109,"journal":{"name":"Cambridge Yearbook of European Legal Studies","volume":"19 1","pages":"3 - 47"},"PeriodicalIF":0.0,"publicationDate":"2017-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cel.2017.9","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44712578","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}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：