Possibilities and Limits of European Union Action against Democratic Backsliding and Decline of Migrants’ Rights in Member States

Electricity grids between EU Member States are interconnected and therefore, electricity policy in one Member State may influence the functioning of electricity systems in the other states. This article analyzes the impact of an EU Member State’s energy policy on the other Member States from the perspective of the right to determinate their electricity mix. The paper argues that the scope of a Member State’s right to electricity mix guaranteed by Article 194(2) TFEUis limited considerably. The right of a Member State to decide on the choice of its energy sources and the general structure of its energy supply in the electricity sector is bordered by the same rights of the other Member States.

European Union case law affects many areas of the economic sector. One of them is betting on sports events. In recent years betting on sports events has increased significantly. However, betting on sports events is subject to restrictive regulation in most Member States of the European Union. It comes as no surprise that sports betting enterprises have challenged these restrictive laws before the European Court of Justice. The Court therefore is faced with a dilemma. On one hand we have the rights of businesses providing the service of betting on sports events and on the other the rights of Member States to protect their citizens from excessive gambling and perhaps even the whole sports sector from failing to perform its public service. The Court via the principle of proportionality has to interpret the freedom to provide services as well as competition rules so as to find a compromise between these rights of businessmen and the rights of Member States to protect consumers and maintain public order. However is the principle of proportionality enough to justify the imposition of a State monopoly as well as a private company monopoly in the sports betting market‘.

In November 2005, the U.S. media reported that the Central Intelligence Agency was operating secret detention facilities in a handful of foreign countries, including two in eastern Europe, and that detainees were often transferred between those facilities and states known to engage in torture. The news that terrorism suspects may have been denied their human rights in member states of the Council of Europe caused concern within the Council and triggered several responses. Within days of the media reports, the Council's Parliamentary Assembly appointed a rapporteur to investigate the extent to which member states were participating in the CIA program. The rapporteur, in turn, asked the Venice Commission to prepare a legal opinion on the member states’ related international obligations. On the basis of that opinion, and the rapporteur's finding that a fair number of member states had acquiesced or participated in the CIA program, the Parliamentary Assembly adopted a resolution and a recommendation intended to safeguard against such conduct in the future. Separately, the secretary general of the Council invoked his authority under Article 52 of the European Convention on Human Rights (ECHR) to survey member states on relevant aspects of their domestic legal systems, including whether those systems contain controls on foreign state conduct deemed to infringe ECHR rights.

This article explores a model of minority protection that the European Union (EU) could adopt. The discussion first assesses the possibility for the EU to join forces with the Council of Europe through internalising, or even acceding to, the Framework Convention for the Protection of National Minorities (FCNM). This would provide numerous benefits, such as provision of consistent benchmarks of minority protection when applied to candidate States in the accession process to the EU, availability of mechanisms to resolve remaining issues relating to minorities within the EU post-accession and elimination of double standards between 'new' and 'old' Member States. Yet these developments are politically sensitive and prone to create procedural difficulties. The alternative option of an EU regime of minority protection is discussed next, focusing on the impact EU law may have on minority rights in Member States. Based on this analysis, the article concludes that an attempt by the EU to develop a coherent system of minority protection may result in reinventing the wheel. Therefore, it is suggested that the EU may be better placed to encourage candidate countries and Member States' implementation of the FCNM.

The right to be heard, a general principle and fundamental right in Union law, requires the administration to hear the persons negatively affected by a decision before taking it. The right must be observed even in the absence of ordinary legislation that provides for hearings in a given administrative procedure. One hitherto unexplored aspect of the right is that its holders are not only individuals, but also Member States, when subject to Union administrative power. This article maps some of the instances where the Court of Justice of the European Union (CJEU) has recognized the right of Member States to be heard. The article further highlights that the ambiguous role of the Member States in European administrative law raises doubts as to when, and to what extent, they should be treated, not as subordinate co-enforcers of Union law under the coordination of the Union administration, but as subjects of the Union administration, with interests of their own that warrant procedural protection before an adverse decision is taken. Ultimately, CJEU case law fails to provide a clear test to establish when the right to be heard of Member States applies. This, the paper argues, risks undermining constitutional requirements of national self-determination, autonomy of Union law, and the balance of power between the Union and the Member States.

The article examines the relationship between state sovereignty and the United Nations (UN) role in protecting human rights. Although international treaties established human rights, the UN Charter provided a guarantee of the rights of its members. Thus, interference in state sovereignty should occur only to fulfil protection mandated by the Charter. However, a contradiction arises in practice: there is no alignment between the legal protection of member states' rights and interventions aimed at meeting social necessities. The UN invokes the threat to international peace and security to justify intervention, often relying on non-Charter rules that diverge from the rights and protections guaranteed by the Charter. This approach undermines the UN's functional scope and lacks procedural compliance, shifting its interventions from a legal to a political nature. A descriptive-analytical approach reveals that the UN's reliance on achieving objectives and addressing threats to peace as the basis for intervention creates a disconnect between member states' Charter-based obligations and the non-charter provisions aimed at protecting international human rights. The UN's reliance on practical intervention is inconsistent with Charter procedural norms. The article calls for international legislators to establish the right to intervene in human rights matters explicitly. This would resolve the existing contradiction between the right of intervention and the rights of member states, integrating non-Charter rules with existing Charter provisions. Such a framework would ensure that international obligations for human rights and the Charter's restrictive provisions are considered an indivisible whole, thereby enhancing the legitimacy of UN interventions.

Most refugees residing in the European Union (EU) do not retain their voting rights in states of origin or lack the means to exercise them effectively. Most member states of the EU do not extend voting rights to refugees. This leaves a large population of refugees residing within the borders of the EU in a unique state of disenfranchisement. In this article, I consider this problem from a democratic perspective. Should refugees in the EU have voting rights? My answer turns on three aspects characterizing the circumstances of refugees: First, refugees reside in member states for an indeterminate, and typically protracted, amount of time without any exit options. Second, the political governance of the EU and its member states significantly shapes the lives of refugees. And third, refugees lack effective voting rights, and consequently, a meaningful political membership, in any political community across the world. In turn, based on an all-subjected principle of democratic inclusion, I argue that refugees should be secured state-level voting rights in member states, albeit with a condition of the period of residency. Moreover, they should have immediate voting rights at the supranational institutions of the EU such as the European Parliament.

This paper attempts to present a comprehensive and coherent picture of the role performed by science under the Sanitary and Phytosanitary Measures (SPS) Agreement and SPS case law. It argues that the approach adopted by the Appellate Body is predominantly based on a technical paradigm, supplemented, however, with some considerations arising from other paradigms. The paper argues that the approach adopted in the case law is generally compatible with the text of the SPS Agreement and provides a coherent SPS system. However, it also identifies certain areas which lack coherence, as certain standards seem to violate the right of the member states to establish an appropriate level of protection. These are: ascertainability of the risk as a precondition for valid risk assessment; strict specificity of the risk assessment in low-risk situations; the proportionality between the risk identified and the SPS measure; the notion of negligible risks; and the concept of likelihood in the quarantine risk assessments. The paper claims that these standards cannot be generally applied in SPS disputes as, in certain situations, they will result in the violation of the right of member states to establish an appropriate level of SPS protection. Finally, a number of specific issues are highlighted which require further clarification in case law, such as the issue of the quality of minority scientific opinions and the relationship between the insufficiency of scientific evidence and scientific uncertainty. The paper suggests that the ultimate role ascribed to science under the SPS Agreement can be assessed only after an interpretation of those issues is provided by future case law.

The tension between social policy and the free-market aims of European integration has been a constant theme since the formation of the Community in the 1950s. Previous contributions to this Annual Review have explored some of the more recent manifestations of this tension. These include the challenge posed to national welfare states and labour regimes by the ‘economic jurisprudence’ of European free movement law and competition law (Barnard and Deakin, 1998: 144–148). In the year under review here, there were two decisions of the Court of Justice which are likely to have a lasting influence on this debate. In Albany, which we discuss in the second section (below), the Court considered the most direct challenge yet to national autonomy in social policy, namely an argument that collective agreements should be subjected to routine scrutiny under the competition policy provisions of the Treaty. In rejecting this claim in its most ambitious form, the Court drew on the social policy provisions of the EC Treaty, and in particular the encouragement in the Treaty given to social dialogue. Albany therefore represents a significant, if hesitant, step on the road towards the recognition of a more central place for social rights within the European legal order. By the same token, the Court’s decision in the Centros case (discussed in the third section) was a reminder of how far there is still to go if this goal is to be achieved. Centros signals that the principle of territoriality—the right of member states to apply regulatory laws to companies operating on their territory regardless of the state in which those entities have been incorporated—is increasingly under challenge from the principle of freedom of establishment, with its overriding emphasis on the right of freedom of movement for entrepreneurs. These decisions represent, in certain respects, ‘lawyers’ law’, dealing as they do with technical and complex arguments on the scope of the legal concepts which

This chapter assesses the restrictions on the right of entry and the right of residence on grounds of public policy, public security, or public health. The secondary legislation adopted specifically to give precision to this exception was Directive 64/221, which continued to apply until it was repealed by Directive 2004/38. It set out the meaning of and limitations upon the right of Member States to exclude or expel EU citizens or their family members on grounds of public policy, public security, and public health. All EU citizens and their family members who move from their home Member State to another Member State are entitled to enter and reside unless the host Member State can establish that one of these three grounds applies. These exclusions are foremost among the ‘limitations’ referred to in Article 21 TFEU on citizenship of the Union.

This paper examines institutional change in father‐specific leave ‐ a centre‐piece of the EU's work‐life balance directive (WLBD) ‐ from the perspective of gradual institutional change. The WLBD, a highly contentious directive, represents a litmus test for the possible impact of the European pillar of social rights (EPSR), on welfare state institutions, which are responsible for the organisation, financing and delivery of social rights in member states. The analysis comprises in‐depth case studies in Denmark, Germany, France and Poland, with different combinations of family and parental leave policies prior to the WLBD. The findings reveal that the EU's directive is leading to convergence in paternity leave, but to divergence in parental leave. Our study is important because it shows that even if EU directives in social policy in principle can lead to upwards social convergence across the EU, when they are relatively weak in terms of precise constraint, for instance, for the level of remuneration for leave, this leads to differentiated integration. This could undermine the very purpose of the EPSR, which seeks to improve social rights for all citizens across the EU. Similar dynamics are likely to be present in other areas at the welfare state‐labor market nexus, such as minimum wages or platform work, where the EU is also developing regulation under the auspices of the EPSR.

The consequences of recent decisions of the European Court of Justice are that the Member States may not impose instant taxation on companies based only on their migration, but the Member States still do so. Secondary EU law provides tax neutrality only for a migrating SE. The prerequisites under which this tax neutrality is granted are so restrictive that their conformity with freedom of establishment is doubtful. As the European Court of Justice does not deny the right of Member States to tax increases in value at the time of realisation, a tax deferral concept might be a future solution.

Linkages were clearly made between monetary movements and taxation m Council Directive 88/361,1 which finally established the basic principle of free movement of capital as a matter of Community law, with effect for most Member States from 1 July 1990. With regard to tax harmonization, Directive 88/361 expressly envisaged in its art. 6(5) that the Commission would submit to the Council by 31 December 1988 proposals aimed at eliminating or reducing risks of distortion, tax evasion, and tax avoidance ‘linked to the diversity of national systems for the taxation of savings and for controlling the application of these systems’, and the Council was to take a position by 30 June 1989. As stated in the previous Chapter, this initiative failed. However, the start of the third stage of Economic and Monetary Union has led to the elimination of exchange risks and differential interest rates for the eleven participants and thus made the legal theory of moving money to other Member States a realistic proposition for ordinary taxpayers. No doubt this was one reason for the resuscitation in 1998 of a proposal for withholding taxes on investment income; however, legal problems and political initiatives may be observed with regard to tax incentives, tax competition, tax evasion, and tax discrimination. Furthermore, in the context of monetary movements, possible conflicts with other substantive provisions of the EC Treaty arise from the wording of art. 58(1) (a) (formerly art. 73d(1)(a)). This states that the provisions of art. 56 (i.e. the liberalization of capital movements and payments inside and outside the Community) ‘shall be without prejudice to the right of Member States: (a) to apply the relevant provision of their tax law which distinguish between tax-payers who are not in the same situation with regard to their place of residence or with regard to the place where their capital is invested; …’

European Union (EU) citizenship and EU free movement law has received great impetus with the introduction of the Treaty of Maastricht. The Treaty on the European Union (TFEU) introduced the concept of European Union citizenship and several fundamental rights were granted to citizens of Member States under the TFEU. Article 21 of TFEU provides that subject to certain conditions, every citizen of the Union shall have right to reside and freely move within Member States. This provision has been enumerated as right to freedom of movement and right to residence under the Citizenship (Free Movement) Directive 2004/38/EC. This Directive is primarily implemented in the UK by the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003). The Directive 2004/38/EC was introduced in 2004 to bring along certain rights that would be enjoyed by citizens of Member States of the European Union. However, the concept has been interpreted liberally over the years by the Court of Justice (CJ) to expand the application of the said law by giving special consideration to workers and citizens who are self employed.Recent case laws and interpretation of Directive 2004/38/EC has created an open space for discussion regarding whether all citizens enjoy equal rights or whether particular citizens are favoured over others when it comes to residence rights in Member States. Freedom of movement of persons is unlimited under the Directive but there are several restrictions within the Directive which has to be interpreted judiciously by the CJ.

This paper will discuss issues of possible limitations of sovereignty in the so-called deliberative organizations (UNESCO, Council of Europe, OSCE), the United Nations (with respect to the authority and responsibility of the Security Council under the Chapter VII of the Charter), and the European Union. Special focus will be on the supranational system of the European Union. The term „supranational“ means that it is a legal concept, and refers to issues of superiority and direct applicability of the rules of the European Union on the territory of the Member States. The traditional view of sovereignty is replaced by the new concept of sovereignty and the interdependence of the countries. The competencies of the European Union overcome national borders and interests. This implies that the EU can make binding decisions not only for Member States, but also for legal entities and individuals in the Member States. That makes the biggest difference between European Union and all other international organizations. Membership in such organization is reducing the sovereign rights of member states. The successor states of the former Yugoslavia will join the EU faster than it is now assumed. That is why it is even more necessary to clarify the superiority of EU law in relation to the national laws of states, and to point out the sovereignty of the member states of international organizations, especially of the European Union.