European Law Journal
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- What the European Law Journal stands for*
- Shifting Boundaries of Membership: The politicisation of free movement as a challenge for EU citizenship
This article discusses freedom of movement under the lens of shifting boundaries of membership and traces the tension between the political and the economic rationale of European integration. It first reflects on the normativity of free movement and links it to the foundations of modern democratic citizenship. Subsequently, it discusses the role of free movement in the construction of EU citizenship and argues that the genesis in market integration casts a long shadow which hinders EU citizenship's potential to fully display the logic of political and social equality. Under current conditions of huge wealth discrepancies between member states, the prevailing form of horizontal integration necessarily brings about a tension between mobility and solidarity, which in turn creates a barrier for further developing EU citizenship. It is concluded that strengthening an intra‐European dimension of solidarity is needed in order to substantiate the right to move as an equal European citizenship right.
- A taste of its own medicine: Assessing the impact of the EU Better Regulation Agenda
This article performs an ‘impact assessment’ of the EU Better Regulation Agenda. It considers whether there is a clear definition of the problems that the EU Better Regulation seeks to address, the evidence base, whether Better Regulation more effectively responds to those problems than alternative options, and what the costs, benefits and broader impacts of the the Agenda may be. The analysis suggests that while the Better Regulation Agenda generally promotes an open yet rational decision‐making process based on sound problem definitions and aiming at targeted solutions calibrated for optimum efficiency and effectiveness, some of its own problem assumptions remain unproven, it possesses contradictory traits and risks being counter productive. Furthermore, while EU Better Regulation may have benefits, it also entails significant costs that should not be overlooked. This assessment reveals the complex and multifaceted nature of EU Better Regulation, and the need to hold it to its own standards.
- Towards Europeanisation through the proportionality test? The impact of free movement law on medical professional discipline
Medical doctors can exercise their free movement rights to escape the control of professional regulation at the national level. This “darker side” of free movement of doctors has received a lot of attention. This article will show that the free movement provisions play an increasingly important role in medical disciplinary cases. The application of free movement law can make a positive contribution to the protection of patient safety. However, disciplinary tribunals are unfamiliar with the structure of arguments based on the free movement provisions. While the case law on free movement of patients has encouraged a process of internationalisation of medical standards, free movement of doctors has not yet led to a similar process of Europeanisation of medical professional rules. Nevertheless, the proportionality test requires that disciplinary tribunals engage in a process of comparison between their own rules and the rules in other Member States.
- Rediscovering the public/private divide in EU private law
This article explores the role of the public/private divide within EU private law. It shows that although EU private law cuts across the boundaries of public and private law, the conceptual distinction between these well‐established categories does matter within it and may lead to better law‐making in the EU more generally. The legal grammar of a particular EU harmonisation measure—which can be more “public” or “private”—may have important implications for the position of private parties at national level, for the CJEU's likely activism in this context, and ultimately for the measure's ability to realise its policy goals. Therefore, instead of ignoring the existing differences between public and private law, EU law should explicitly adopt the public/private law language in its discourse, without, however, introducing any sharp divide between these two areas.
- Plaidoyer for a Social Europe
‘It is with great sadness that his many friends learned of the passing of Fernando Vasquez, on 16 July 2020, in Porto. I met Fernando Vasquez some thirty years ago, at a time when, together with Jean‐Jacques Paris, another friend who recently passed away, and under the direction of Odile Quintin in DG V of the European Commission, he was working on building a Social Europe. That was before the European Union failed as a post‐liberal orthodoxy, driving along all Member States, in a race to the lowest social and fiscal bidder. As Frédéric Turlan reminds us, in a tribute published in the recent issue of Liaisons sociales Europe, n. 502, 23 July‐2 September 2020, Fernando Vasquez witnessed with lucidity this backsliding which has heavily contributed to the current disconnection between citizens and the European project, but it did not prevent him from relentlessly striving for more justice in the European Union. These efforts, his diagnosis, without complacency, of the current state of the Union and his most recent suggestions for ensuring both social and economic convergence under the aegis of solidarity, are retraced in his contribution to the Conference ‘Revisiting solidarity in Europe’, which was held on 18 and 19 June 2018 at the Collège de France in Paris. To honour his memory and as a testament to his commitment to a certain idea(l) of Europe, one which is true to its principles of democracy and social justice, here is the text of his contribution, a call, and his last plaidoyer, for a social Europe.’ Alain Supiot, Emeritus Professor at the Collège de France in Paris.
- Levelling the EU participatory playing field: A legal and policy analysis of the Commission's public consultations in light of the principle of political equality
The EU Commission has a long tradition of consulting interested parties when formulating its policies. While the rationale, format and legal basis relied upon by the Commission when holding public consultations have changed over time, its systematic inability to make those consultations equally accessible to all affected parties has remained constant. This article discusses the extent to which such a consultation practice conflicts with the principle of political equality, as enshrined in Article 9 TEU. Given the Commission's unrestrained discretion regarding who, how and when to consult and the absence of corresponding participatory rights, it argues that the EU can no longer presume that all stakeholders—especially citizens and civil society groups—enjoy equal access to EU institutions. Rather, under a proposed substantive reading of the principle of political equality, it contends that EU institutions are procedurally required to ensure that everyone will effectively be given equal opportunities of access to the policy process. Only a series of structural, power‐shifting reforms—some of which are proposed in this article—may enable participation to become an autonomous form of legitimation of the Union.
- The contribution of EU public procurement law to corporate social responsibility
This article argues that while EU public procurement law increasingly allows public authorities to take environmental and social considerations into account in public purchasing decisions, it does impose limits on the possibility for authorities to incentivise corporate social responsibility (CSR) policies through public procurement. These specific limits are the result of the EU legislator's choice to endorse the Court of Justice's ordoliberal approach to public procurement law. This approach is in tension with EU CSR policy, and more broadly, the EU's non‐economic goals such as environmental protection, the fight against climate change, human rights and social policy. It reflects a normative preference for the right of undertakings to compete for a tender over the freedom of government authorities to choose a supplier on public interest grounds even if these choices are based exclusively on a legitimate public interest and should be reconsidered.
- Is the medicine right?
Is asking the Better Regulation Agenda (BRA) to answer the same preconditions it requires for any regulatory action a proper treatment? Does any assessment of the agenda necessarily imply a thorough definition of the costs and the benefits deriving from its application or is it enough to provide a few key insights to perform it? Is the BRA really so ideological, deriving from “a liberal analytical framework that considers no regulation/state intervention” as the preferred option? Is regulatory quality an issue that “cannot realistically be solved”? Does the principle of subsidiarity as a policy objective need some revision? Several questions come to mind when reading a very thought‐provoking article that is very critical of the BRA but that in the end recognises some of its main qualities.
- From the French Citizens' Convention on Climate to the Conference on the Future of Europe: A participatory science and democracy perspective
The Citizens' Convention on Climate (CCC) gathered 150 people, randomly selected but representing the diversity of French society. Its mandate was to formulate a series of concrete measures aimed to achieve at least a 40% reduction of greenhouse gas emissions by 2030 (compared to 1990) while preserving social justice. The citizens auditioned experts on various topics from climate to economics and then formulated their own proposals, thus building an effective consensus, beyond individual specific interests. Moreover, proposals formed a coherent whole, and in this regard fare much better than previous attempts to tackle environmental and climate transition through public debates. This methodology shows how citizen science can produce efficient and quality outcomes. This opens new perspectives for democracy on the basis of new interaction channels between law‐makers, professional experts and citizens. This seems to be the approach chosen for the Conference on the Future of Europe as well. Gathering citizens from all EU countries to work on important topics for Europe and Europeans could be a way to build a common vision, and contribute to the creation of a true European common good. Citizens' direct involvement in science and democracy might be one of the keys to meaningfully and thus successfully address their shortcomings.
- European Citizenship and the Right to Reside: ‘No One on the Outside has a Right to be Inside?’
This paper deals with the question: Who ought not to be excluded from the enjoyment of European citizenship rights? Recently, the Court of Justice has ruled that, in exceptional situations, the ‘genuine enjoyment of the substance of rights attaching to European citizenship’ can be invoked in order...
- Taking proportionality seriously: The use of contextual integrity for a more informed and transparent analysis in EU data protection law
Difficulties abound as to where the boundary between legitimate and illegitimate processing of personal data should be set. The open‐ended wording of the EU Data Protection Directive (DPD) 95/46 leaves space for diverse interpretations. The European Court of Justice finds it difficult to establish...
- Going Unnoticed? Diagnosing the Right to Asylum in the Charter of Fundamental Rights of the European Union
Article 18 of the Charter of Fundamental Rights of the European Union enshrines the right to asylum. Nonetheless, despite its ‘constitutionalisation’ within primary law, asylum remains a far too amorphous right, whose axiological potential has gone virtually unnoticed in the ongoing migratory...
- Resistance to European Law and Constitutional Identity in Germany: Herbert Kraus and Solange in its Intellectual Context
This article recasts our understanding of the Federal Constitutional Court's Solange decision by tracing its lineage within the domestic context and as part of a new history of EU law. The external dynamic of the decision, a moment of judicial discourse between two of Europe's highest panels, has...
- Vulnerability as a normative argument for accommodating “justice” within the AFSJ
Vulnerability is a concept that stems from ethics and legal theory. It has progressively gained momentum in international human rights law, in particular in the European contextof the European Court of Human Rights adjudications. Also, the European Union is sensitive to it.By the introduction of...
- Lex Sportiva: A Playground for Transnational Law
This article tackles the emergence of transnational law under the pressure of globalisation. It argues that lex sportiva, the law of international sport, is a fruitful research object in order to address three key questions raised by transnational law: What is transnational law? Is transnational...
- Europe Entrapped
The EU in 2013 finds itself at the crossroads of either something considerably better or something much worse than the status quo; in other words, in a crisis. That much is nearly universally understood, both within Europe and widely beyond. So I am certainly not alone in believing that the current ...
- Free Trade Agreements after the Treaty of Lisbon in the Light of the Case Law of the Court of Justice of the European Union
Free Trade Agreements (FTAs) are increasingly employed by the European Union (EU) as a tool of its internal market and external relations policy. This article addresses the evolution of FTAs through the jurisprudential lens of the Court of Justice of the EU. To this end, and after clarifying key...
- Privacy as Europe's first Amendment
The protection of universal principles varies across jurisdictions: the prominence of free speech in the United States is undisputed. My argument is that the First Amendment took off only during the New Deal and later, the Civil Rights revolution as an identity‐formation and unifying tool in a...
- Some Critical Issues in the EU–India Free Trade Agreement Negotiations
The free trade agreement currently negotiated between the EU and India is due to be the first of a new generation of free trade agreements between the EU and an emerging economy. This article addresses a number of critical issues in the negotiations and the EU's response to them. These issues...