EU Lawyers Research Articles

The Court of Justice in JY v. Wiener Landesregierung: Could we expect more?

The ruling of the Grand Chamber of the Court of Justice in Case C-118/20 JY v. Wiener Landesregierung EU:C:2022:34 follows the judgments in Rottmann and Tjebbes. These cases concern the relationship between EU law and national citizenship. In particular, they deal with the compatibility of national authorities’ decisions on loss of nationality with the proportionality principle. The JY v. Wiener Landesregierung case highlights the contradictory nature of nationality law, which cannot be fully understood from a purely domestic perspective and yet remains within the sphere of Member States’ competences. Overall, the decision of the CJEU in JY v. Wiener Landesregierung leaves a bittersweet taste in EU lawyers’ mouths. On the one hand, the Court appears to implicitly make clear its aversion for certain national practices. In doing so, it ensures, in the case in question, a higher degree of protection of EU law-derived rights. On the other hand, the ruling does not adequately ensure sufficient safeguards for similar future cases. Finally, the Court seems to have missed a significant opportunity provided by the principle of mutual trust.

No Longer Marginal? Finding a Place for Lobbyists and Lobbying in EU Law Research

Putting ‘lobbyists’ and ‘lobbying’ on the EU law map – acknowledging that there is little interest in lobbying by EU legal research – explaining why EU lawyers and especially constitutional law scholars should be interested in lobbying – presenting a framework to study lobbyists as regulated actors under EU law – considering the merits of ethnographically-oriented socio-legal research and the ‘new legal realism’ as methods of studying lobbyists and lobbying.

Here be Dragons: Legal geography and EU law

AbstractThis paper sets out a research agenda for EU legal geography. It identifies some central traits to the project of legal geography, a relatively new and increasingly populated interdisciplinary space that links legal studies with geography. While the EU and the project of integration appear to offer particularly rich soil for the legal geographer, very little attention has been paid to the ways in which the nature, structure and lived experience of the EU can be explained from a spatial and temporal perspective. For many reasons, as will be elaborated, this is a shame. Most crucially, perhaps, there is a growing realisation in EU studies in general that the authority and legitimacy of the EU depends, more and more, on how it is experienced by its citizens. Legal geography, with its spatial awareness and focus on the way in which space, time and law are co-constituted, offers a lens, language and conceptual framework to fill this void. While EU lawyers have occasionally and haphazardly ventured into the terrain of legal geography, much work is to be done. This could take the form of methodological, empirical, or conceptual work, and would offer a new dimension to existing accounts of European integration and to the central concepts in doctrinal and constitutional work in EU legal studies.

When Scholarship Matters: Theory-Building and Theory Effects in the EU Polity Context

I welcome Jan Komarek’s project to engage in a history of “European Constitutional Imaginaries” as seen through EU law landmark theories and most prominent authors. Some malicious minds would think of it as yet another avatar of the “scholastic bias” that structurally incites us scholars to transform our professional anxieties (what is my/our scholarship worth for?) into full-fledged research question (do ideas matter?)... Others could see it as a vain exercise in nostalgia, as EU law researchers return to a golden age, that of the late 1980s, in which EU law was indeed able to frame professional identities and capture political imaginaries way beyond the academic circles. I would rather take it as part of the “critical turn” that has come along the sense of desoeuvrement so pervasive among EU lawyers ever since the constitutional project failed to gather popular support. A detour to the history of the discipline can indeed be a powerful methodological device to strengthen our reflexive gaze and, maybe, start again rolling up the immense boulder of theoretically connecting Europe, the European Union and the Law. I would argue however that the success of such endeavor is conditioned by our capacity to provide a renewed analytical framework able to compare past theoretical undertakings not only from an “internal” point of view (in terms of legal ideas) but also from an “external” point of view (in terms of social and political relevance) and -most importantly- account for the tensions and contradictions between the two. I take the very notions of “utopia”, “imaginaries” and “ideology” introduced by the project IMAGINE, that all refer to the capacity of legal ideas to capture political expectations and strategies, as strong incentives to move in that direction. In this paper, I suggest to examine theories of European law along two (partly conflicting) dimensions -their scientific robustness and their social relevance- and apply this simple conceptual toolbox to three historical constellations of European law theory.

A Sense of Common Purpose. On the Role of Case Assignment and the Judge-Rapporteur at the European Court of Justice

This contribution deals with the assignment of cases to reporting judges and judicial formations at the European Court of Justice (ECJ). EU lawyers generally consider the ECJ’s system of case assignment to be one of the most problematic features in the Court’s decision-making process. They perceive a strong tension with the right to a fair trial. In this contribution, I aim to understand why the Court maintains a system that has been under severe attack for a long time. By closely analyzing the practice of case assignment between 2003 and 2019, I argue that the ECJ’s assignment system is an important mechanism for the Court’s institutional success. It has allowed the Court to maintain a sense of common purpose, a strong and persistent idea of its mandate as a guardian of the effectiveness and primacy of EU law. I identify three key functions case assignment performs. First, supporting jurisprudential stability and continuity by creating an ‘elite group’ of judges who writes the bulk of the most important ECJ decisions. Second, integrating new ECJ judges through gradually assigning them more difficult cases thereby structuring a learning process for becoming a full-fledged ECJ judge. And third, the ECJ’s system of case assignment has helped to maintain what is generally lost in courts of the ECJ’s size: a place where all 27 ECJ judges and 11 Advocates General are informed on all incoming cases, jointly engage in systematizing the ECJ’s case law and framing the Court’s agenda.

From World Actor to Local Community: Territoriality and the Scope of Application of EU Law

This chapter offers a reconstruction of the case law of the Court of Justice of the European Union in relation to the territorial scope of application of EU law. Thus, it will focus on the manner in which the Court approaches the question of whether EU law should apply to cases that are at least partly connected to non-EU jurisdictions. This is a topic that has attracted significant interest in recent years from EU lawyers as well as experts in public and private international law, given in particular how EU law has been said to take the role of a ‘world actor’ in tackling problems that lack a clear geographical basis, such as the protection of personal data, environmental degradation or competition law. Under the most common understanding, the question of the territorial applicability of EU law is essentially a functional one: the scope of application of EU law will be that which is required by the effective pursuit of whatever goal is at stake, which may mean that in many instances it will apply ‘extraterritorially’. It will however be argued that this leaves aside an important dimension of the territorial applicability of EU law – its contribution to the construction of the EU legal system as a ‘local community’. Indeed, the EU legal system should not only be seen as an institutional tool in the promotion of certain objectives, but should also be understood as a space of inclusion and exclusion. It will not only be argued that this is a necessary dimension to EU law’s scope of application, but also that this dimension is already present in the case law. This will be seen through a study of three different lines of cases, where the Court deduces the applicability of EU law from the location of a legal relationship, the imperativeness of the particular EU legal regime, and the integrity of the EU legal system as a whole.

EUROPEAN EXPERIENCE OF LEGAL REGULATION OF ATTORNEY PROFESSIONAL ETHICAL BEHAVIOR

The European experience in the legal regulation of the lawyer’s professional ethical conduct is important and necessary for any civilized community. Its positive characteristics can be useful for reforming the current legislation of Ukraine and further scientific research. Since the profession of lawyer is designed as a benchmark for the protection of human rights in relations with the government, the existence of clear standards of attorney ethics that meet the generally recognized world standards – is a necessary prerequisite for the effectiveness of the advocacy as such. It is Europe’s universally recognized values, such as the right to life, liberty and security of person, property, fair trial and others, that will only be true values if they can be protected in a civilized legal way. The article reviews the work of the eminent lawyer M. Mollo “Rules of the Bar in France” which outlines important and necessary professional personal requirements that a lawyer in a modern democratic society must meet. The individual provisions of the German Bar, which is an independent organization in the justice system, are examined. The German Bar system allows attorneys to practice law virtually as free entrepreneurs. Moreover, it is determined that the practice of advocacy in Germany contains a lot of innovations, first of which is its concern with countries that are members of the European Union. It should be noted that the author has suggested the first step for Ukraine – based on the experience of Germany – is to establish a single minimum tariff, which would be used by both law firms and individual lawyers. Based on the review of the provisions of the General Code of Practice for EU lawyers, an important next step for Ukraine has been identified is the rules on professional insurance. Attorneys should always be insured against unfounded claims that are related to insufficient professional competence, and the size of the insurance should be set within reasonable limits. It is important to note that the laws of other European countries trace the principles of the autonomy of the legal profession, independence, exclusivity, self-government and self-financing.

Justice, Legitimacy and the Authority of Legislation within the European Union

AbstractWhat are we to make of the authority of legislation within the EU? EU lawyers have questioned the significance of legislative decision‐making within the EU. This article challenges these views and argues that the EU legislature must enjoy adequate freedom to shape EU law with the general interest in mind. Institutional accounts that seek to curtail the authority of legislation tend to rest upon ‘content‐dependent’ conceptions of political legitimacy, according to which the legitimacy of a decision depends on its moral qualities. Such conceptions overlook reasonable disagreements on justice and rest upon an overly optimistic (pessimistic) view of the Court (the legislature). The article argues for a content‐independent conception of legitimacy, following which the benefits of legislative decision‐making are more easily understood. The authority of legislation deserves wider recognition among EU lawyers for reasons of political legitimacy and because the EU legislature is better positioned to decide in the general interest.

EU citizenship and (fundamental) rights: Empirical, normative, and conceptual problems

AbstractThere is a close connection between EU citizenship and rights, both in the law and literature. This article claims that EU lawyers' understanding of EU citizenship and rights suffers from empirical, normative, and conceptual shortcomings. I will point out that there has been insufficient awareness for the boundedness of EU citizenship, the political structure of the EU and the constraints this (realistically) imposes on the ‘meaningfulness’ of EU citizenship. EU citizenship must not be understood as requiring an elaborate set of equal rights for all Union citizens throuzghout the EU, but valued for its ability to allow its status holders to enjoy (almost) full membership in the Member States of which they do not possess nationality.

Unidentified Legal Object: Conceptualising the European Union in International Law

What is the European Union? This seemingly simple question gives rise to a multitude of different answers from EU lawyers, international lawyers, political scientists, and the media. The debate is as old as European integration, and a satisfying answer still alludes us. Does the legal characterization of the EU and EU law matter from a legal standpoint? This article argues that such characterizations do matter. It first discusses four main ways in which the EU is perceived in the EU law and international law literature: (i) the EU as a ‘new legal order’; (ii) the EU as a ‘self-contained regime’ in international law; (iii) the EU as a ‘Regional Economic Integration Organization’ (REIO); and (iv) the EU as a ‘Classic intergovernmental organization’ (Classic IO). Using examples from recent legal practice, this article shows how such characterizations are the ‘starting points’ in debates which can shape legal outcomes. It is difficult to overcome such divergent views, however, since they represent much deeper disagreements and power relations. Developing a theory of EU legal character gives rise to new challenges.

Risk Regulation at Risk. Brexit, Trump it, Risk it

How did I get into the field of risk regulation? Well, one could describe it as an occupational health and safety accident. When I started my PhD at the European University Institute mid 1990s, risk regulation was hardly on the horizon. Journals like EJRR and Regulation & Governance did not exist, and my initial PhD proposal was inspired by constitutional, international and EU law, focusing on transborder regional cooperation. However, after a year reading around, and clearing my head driving a scooter in the Florentine hills (without a helmet), my thesis topic had changed from territorially defined to functionally defined actors, and was increasingly inspired by political science, and the growing literature on governance in particular. Still, I was in search of a policy area. Being inclined towards market-correcting policies, my initial preference was for either environmental or social policy. At EU level both are decisively regulatory in nature, but social policy also includes tools and actors resulting from a legacy in redistributive policies. So, it was after a long process of changing focus, background literature, and selection of policy area that I finally ended up with… occupational health and safety regulation (OH&S). As a subsector of social policy, OH&S seems to have it all. At EU level, it operates through all typical regulatory instruments such as comitology and agencies, but it equally has unique elements related to its embeddedness in industrial relations, both in terms of regulatory tools and enforcement mechanisms. In fact (with the exception, maybe, of regulating infectious diseases) OH&S is the area in which risk regulation first really took off. Avoiding accidents and dangerous machinery and substances in the workplace was the start for both the welfare and regulatory state. Yet, despite that legacy, OH&S does not have an extensive research community like other risk regulation areas, such as environmental or food safety regulation. This relative insulation of OH&S meant my research was not particularly led by the key research questions and literatures with which one would inevitably engage when studying risk regulation areas that have a broader research community. Rather, I studied OH&S with a perspective framed more by EU law and governance studies. At the same time, EU lawyers discouraged me from engaging in the study of OH&S as they believed my topic could be analysed independently from any particular policy area and assumingly therefore reach a wider audience. But I had fallen in love with the nerdy

Surveillance, Privacy and Trans-Atlantic Relations, by David D. Cole, Federico Fabbrini and Stephen Schulhofer

This edited collection of papers was developed from conference presentations delivered in March 2015 at the Institut d’Etudes Européen, as part of the International Association of Constitutional Law’s ‘Constitutional Responses to Terrorism’ research group. The papers have been updated and formatted in a fairly uniform four-part structure, each dealing with a particular aspect of recent dynamics in US and EU law concerning privacy and data protection under conditions of surveillance. The book’s aim is to ‘improve understanding on both sides of the Atlantic on issues of surveillance, privacy and transatlantic relations’, in the furtherance of ‘human rights, national security and Euro-American unity’ (4). It is divided thematically into five parts, addressing the key issues and developments in contemporary law concerning privacy and surveillance in recent years. In the first section, chapters by Tuomas Ojanen and Christopher Slobogin independently address the basic framework within which EU and US privacy rights are articulated. Ojanen makes a good job of the difficult task of explaining the salient points of the Schrems and Digital Rights Ireland cases. The article is perhaps too brief to fully unpack the precise status of privacy as a European right, which is indeed a ‘bit of a maze’. Privacy after Schrems is not ‘a super-fundamental right that reigns supreme’ (16), yet it does contain an ‘inviolable essential core’ that is ‘not subject to limitations’, while at the same time it is subject to a ‘permissible limitations test’ (21). The picture is complicated further because it was unnecessary for the Court to articulate such a test in detail, so they declined to do so (23). Explaining the implications to experienced EU lawyers while also explaining the basics to US lawyers seems more than one chapter can do.

Horizontal Direct/Indirect Effect or Direct/Indirect Horizontal Effect: What’s in a Name?

Abstract: In private law doctrine, suggestions have been made to introduce a terminology relating to the phenomenon of horizontal effects of EU law that is different from the terminology used by EU lawyers. That terminology is designed better to accommodate the specificities of private law. By subtly changing the word order, private lawyers aim to cover under the label ‘direct horizontal effect’ only those cases in which EU law can be invoked with the consequence of directly affecting or modifying a private law relationship. Invoking European law to review national law in terms of its compatibility with European law is defined as ‘indirect horizontal effect’. This essay discusses the unfortunate consequences for legal practice of using two different sets of terminology, almost identical in wording, but substantially different in scope. A number of disadvantages of the terminology advocated by private lawyers are addressed, also in the light of the case law of the European Court of Justice. Finally, a suggestion is made to arrive at a uniform terminology attempting to accommodate both private law and EU law sensibilities.

‘Protection or Protectionism?’

This article engages critically with an emergent rhetoric suggesting that Member States and trade unions seeking to apply their domestic social standards to foreign service providers, in the context of what EU lawyers refer to as ‘Free movement of Services’, engage in practices amounting to economic protectionism. To countervail this rhetoric, the paper revisits some of the regulatory principles and rationales underpinning the law on ‘Free Movement of Workers’ and draws a number of parallels between them and the principles that regulate, or ought to regulate, other freedoms that de facto involve the free circulation of working persons in Europe, albeit under the guise of ‘Free movement of Services’ or ‘Freedom of Establishment’. It asserts that all market freedoms affecting the free movement rights of working persons in Europe, ought to be regulated by reference to what the paper describes as the ‘Equal treatment Principle’, and should distance themselves from any ‘Country of Origin’ rationale.

Free Movement and the Right of Establishment of EU Lawyers: The Special Case of Italian Abogados

Free Movement and the Right of Establishment of EU Lawyers: The Special Case of Italian Abogados

How Easily Could an Independent Scotland Join the EU?

The prospect of an independent Scotland raises many issues. This paper focusses on just one of them - the question of an independent Scotland’s EU membership. While it may have taken longer for this issue to reach the bubbling and boiling point that other issues of Scottish independence have attained - such as ownership of North Sea oil rights, or whether an independent Scotland might maintain sterling as its currency. Scotland’s EU membership has become no less contested and polarised than these other issues. This paper maintains that despite assertions to the contrary from UK lawyers, EU lawyers and EU officials, any future independent Scotland’s EU membership should be assured, and its transition from EU membership qua part of the UK, to EU membership qua independent Scotland relatively smooth and straightforward. In other words, it would take the form of an internal enlargement of the EU using the procedure for treaty amendment in Article 48 TEU. These arguments are made on the basis of EU law itself, which, it is argued, provide all the resources necessary to assure an independent Scotland’s EU membership through EU treaty amendment, and not through a cumbersome accession process as a new member state. In particular, the values, norms and ‘special ethos’ of the EU, expressed in concepts such as EU citizenship, fundamental rights and duties of loyalty, combine to provide a reasoned justification for such internal enlargement.

FREE MOVEMENT, FEDERALISM AND INSTITUTIONAL CHOICE: A CANADA-EU COMPARISON

Although very different in many respects, the EU and Canada nevertheless confront common problems in certain areas. One such common problem is how to manage inter-state regulatory diversity within a federal (or federal-like), multinational system. This paper compares the different ways in which the EU and Canada have chosen to address the problem of national barriers to trade within their internal markets, and the consequences of these choices. It is somewhat counterintuitive for EU lawyers that a full-fledged state may have an internal market that is less integrated than that of the EU; and yet that is the case in Canada. The comparison is illuminating as to the different possible approaches of federal polities to the problem of state regulatory choices and barriers to trade, the paramount importance of institutional choice, and the significance of historical and political circumstances.

Redefining the Outer Boundaries of EU Law: The Zambrano, McCarthy and Dereci trilogy

In its three recent rulings in the cases of Zambrano, McCarthy, and Dereci, the Court appears to have been determined to redefine the external boundaries of EU law, in cases involving the family reunification rights of Union citizens. These three judgments can be read as an indication that for Article 20 TFEU to apply, there is no longer a requirement of a cross-border element on the facts of the case, and that it is sufficient if the contested national measure has the effect of 'depriving citizens of the Union of the genuine enjoyment of the substance' of their rights (the 'Zambrano principle').The cases can, at the same time, also be read as a confirmation that the free movement provisions do - still - require a cross-border element and, in particular, the exercise of inter-State movement, in order to apply. Though the result in these cases has not been entirely unexpected, especially in the aftermath of the Rottmann ruling, it is rather problematic in that, although it is obvious that the Court wishes to redraw the line dividing the national and EU spheres of competence, it does not make it entirely clear where this line now lies and leaves many essential questions unanswered, which will obviously require some time to be resolved. EU lawyers are consequently, once more, left with having to decipher as best as they can the real intentions of the Court in this new line of case-law, which has been further complicated by the fact that what the Court seems to have given with one hand in Zambrano (and before that in Rottmann), has taken it back to a large extent through its rulings in McCarthy and Dereci, which appear to confine the former two cases to their own exceptional facts. Moreover, the 'reverse discrimination Pandora's box', the opening of which appears to have been the real target of these references, remains untouched: instead of providing a direct solution to this problem, the Court has chosen to - once again - broaden the scope of the Treaty provisions in order to include within it as many situations as possible and, thus, prevent the emergence of this type of differential treatment on a case-by-case basis. As will be explained, nonetheless, this is by no means an appropriate solution to the reverse discrimination conundrum.

The Scope of Application of Fundamental Rights on Member States' Action: In Search of Certainty in EU Adjudication

While one may understand that respect for EU fundamental rights is a condition of the legality of EU acts, the (legal) situation is not as straightforward regarding acts adopted by national authorities. Most EU lawyers would agree with the contention that it is not always clear when and whether national authorities are acting within the scope of application of EU law and many, probably, still wonder about the sense of this ambiguous concept elaborated by the Court of Justice of the European Union (CJEU). The aim of this essay is to clarify the situations where EU fundamental rights bind national authorities following the entry into force of the Treaty of Lisbon and the legally binding status acquired by the Charter. The potential federal effect of the Charter will be assessed as it is sometimes alleged that the new legally binding status of the Charter may eventually convince the CJEU to enforce common standards applicable right across the EU regardless of whether national measures fall within or outside the scope of application of EU law. Another important issue is the potential effect of the Charter on the application of EU fundamental rights in the context of legal proceedings between private parties. Accordingly, this article will also explore the potentiality for an increased “horizontal effect” of the EU fundamental rights set out in the Charter, that is, whether they may be more easily relied upon by a private party against another private party. Finally, a classification or mapping of the various situations in which private parties may rely upon EU fundamental rights to challenge the legality of national measures will be offered. This framework for analysis of the CJEU case law is based on a broad reading of the ‘Wachauf’ and ‘ERT’ lines of cases. Such a novel classification appears in our view necessary in light of the latest judicial developments and the need to bring more certainty as to the scope of application of EU fundamental rights to Member States’ actions.

Environmental integration and multi-faceted international dimensions of EU law: Unpacking the EU’s 2009 climate and energy package

The EU Climate and Energy Package (the Package) is a comprehensive set of legal acts aimed at responding to global and European climate change and energy challenges, and integrating climate change considerations into a range of sectors and policies.1 The technical complexity of the Package illustrates how the body of legal norms related to climate change is expanding rapidly and becoming so specialized that many are now referring to “climate law” as an emergent legal discipline.2 Yet, the Package contains a number of elements that could have important implications for the future of the European Union and are of interest to general EU lawyers. It has been described as “a momentous development”3 whereby major and politically contentious pieces of climate and energy policy were adopted in less than a year. One of the main objectives of the Package is to steer the EU towards a fundamental