Autonomy Of Member States Research Articles

The CJEU’s Unintelligible Impairment of the Financial Health of EU Performers: Ever-Increasing Suspense in Neighbouring Rights

Abstract With the RAAP ruling in 2020, the Court of Justice of the European Union (CJEU) delivered a judgment with a far-reaching impact, both on the autonomy of Member States within the making of reservations under international treaties, and on revenues for collecting societies and neighbouring rightsholders in the EU. The controversial part of the judgment states that entering reservations on the granting of equitable remuneration for neighbouring rights on the basis of international treaties should only take place at EU level. This effectively leaves no autonomy to Member States within the principle of reciprocity, contrary to former popular belief by many Member States and scholars. The US has entered reservations with regard to EU countries under Art. 15(3) WIPO Performances and Phonograms Treaty (WPPT), thus no remuneration is disbursed for performances by EU artists in the US. Due to the US repertoire’s large presence in the EU, the latter’s performers will be left with a considerably smaller share of the revenues to be distributed by EU collecting societies. The European Commission must urgently finish the ongoing research and consultation on RAAP. Right now, too many requests by interest groups remain unanswered. The recommended (and hoped for) route is for the EU to invoke the principle of reciprocity and enter reservations for other WPPT parties that have entered such reservations with regard to EU countries. An extensive arrangement regarding reservations is necessary, also regarding situations where the relationship between fundamental rights and reciprocity provisions is currently unknown.

Procedural Autonomy of Member States of the European Union: Interpretation of EU Court of Justice

Procedural Autonomy of Member States of the European Union: Interpretation of EU Court of Justice

The End of Member State Autonomy in the Calculation of Fines in EU Competition Law? The Implications of the Zenith Communications Ruling.

The End of Member State Autonomy in the Calculation of Fines in EU Competition Law? The Implications of the Zenith Communications Ruling.

Article 6 ATAD and ‘Non-genuineness’ of Arrangements

Article 6 Anti-Tax Avoidance Directive (ATAD) provides a General anti-abuse rule (GAAR), applicable to all taxpayers subject to corporate tax in one ormore EUMember States.TheGAAR refers to ‘non-genuine’ arrangements.However, it is unclear whether ‘non-genuineness’ describes real and/or simulated arrangements. The article aims to analyse this issue, in light of a literal, multilingual approach and through a teleological and historical-systematic interpretation of the provision. ATAD, Corporate tax, GAAR, Tax avoidance, Simulation Test, Reporting, BEPS, Union concepts, quasi-Union concepts, autonomy of Member States, Interpretation of Directives, EU Guidance

The (Absence of) Member State Autonomy in the Interpretation of DAC6: A Call for EU Guidance

DAC6 concerns the spontaneous exchange of information on potentially aggressive tax arrangements. With the implementation of DAC6 into the national laws of the Member States comes a lot of uncertainty, along with diverging interpretations among Member States. In this article, the authors analyze the autonomy of Member States in the definition and interpretation of the concepts used in DAC6. The authors also analyze the relevant sources of the interpretation of DAC6, such as the relevant BEPS reports. The authors argue that DAC6 lays down a uniform framework for the spontaneous exchange of information of potentially aggressive tax arrangements. Member States do not have a margin of discretion regarding the interpretation of the concepts that are essential to the uniform framework. Other concepts may leave a margin of discretion for the Member States, such as several concepts used in the Hallmarks. In their margin of discretion, the Member States must ensure the full effectiveness of Union law. On the basis of that, the concepts must be defined (and interpreted) in line with the object and purpose of the Directive. Member States should use BEPS Action 12 as a source of interpretation and illustration insofar DAC6 is based on this report. DAC6, Directive 2018/822, Main Benefit Test, Reporting, BEPS, Union concepts, quasi-Union concepts, autonomy of Member States, Interpretation of Directives, EU Guidance.

The Uneven and Unsure Playing Field for Competition Damages' Claims in the EU: Shortcomings and Failures of Directive 2014/104/EU and Its Implementation

This paper examines the impact that Directive 2014/104/EU in the rules governing private damages claims for competition infringements and in the ensuing latest litigation in some Member States. Not more than three years have passed since the Directive was implemented, but there are already signs that instead of facilitating damages claims, the rules established do not facilitate claims; to the contrary, some of them may unnecessarily complicate the prospects for compensation of competition infringements’ victims. Initial assessments of the Directive already pointed out its biases and shortcomings and the complexities introduced by some of its provisions. From the start it has been clear that the partial harmonization sought by the Directive would leave room for relevant divergences among Member States due to the principle of national autonomy. Limited harmonization and the leeway on the rules governing jurisdiction provide ample leeway for plaintiffs to choose where to file their claims. The implementation of the Directive has only confirmed the initial appraisal. In many of the relevant issues covered by the Directive, the jigsaw of national rules has been further thickened with another layer complexities and uncertainties (f.e., contribution rules among infringers, indirect purchasers-passing on; access to evidence and disclosure). Doubts about the temporal application regime of the Directive have not helped, and it will take time to resolve them. More importantly, although some rules are introduced for the quantification of harm (and mainly for cartel infringements), they seem far for providing a helpful solution to national courts in practice. It may be too early to convict the solutions introduced by the Directive, but the ongoing cases in Member states already show that the outlook for damages has become far more uncertain and tortuous. Following the caselaw of the EUCJ, the Damages Directive has further encroached the national autonomy of Member States, but still too much is left to be ironed out using the principle of effectiveness. For that meager outcome, it can be question.

The Internal Market: An Historical Perspective

This chapter is an historical perspective on the internal market. It is a challenging enterprise. To distil a narrative flow from 60 years of development necessitates discretion and choice, the very exercise of which perforce shapes the ensuing story. There are doubtless multiple stories that could be told. I have ‘form’ in this respect, having already had one shot at this twenty years ago, when I articulated a relatively straightforward linear trajectory. This chapter is not, however, an updated version of that penned earlier. It is a different view of the cathedral, which is more accurately regarded as historical-conceptual. The narrative consists of three distinct, albeit related, parts. The first part is concerned with negative integration and the four freedoms, and is dealt with in sections II-VI. The analysis begins by setting out the conceptual frame that is used to explore the four freedoms. It draws on Robert Schutze’s three models of integration, the international, the federal and the national, as the lens through which to view the development of the law in the respective areas. It will be argued that the contours of the internal market have been shaped principally by the interplay between the international and federal models; that the balance between the two is not identical across all four freedoms; and that there are interesting differences in the meaning of discrimination and market impediment that underpin the two models when applied in relation to the four freedoms. The focus in the second part of the chapter switches to positive integration and harmonization, which is examined in sections VII-IX. It begins by setting out the classic story of positive integration, which has a Treaty dimension, a legislative dimension and a judicial dimension. There is much in this that withstands scrutiny. It will, nonetheless, be argued that the received wisdom concerning the critique of Article 114 is misplaced in certain respects, when analysed from a constitutional, interpretive and political perspective. It will also be argued that there is excessive concentration on Article 114 TFEU when considering positive integration in the EU. The internal market has been advanced by many regulations and directives enacted pursuant to other Treaty provisions. Some entail harmonization, others do not. It should not, however, be assumed that harmonizing measures are necessarily more efficacious, or more limiting of Member State autonomy, than other legislative provisions designed to advance the internal market. There is, as will be seen, no a priori reason why this should be so. The final part of the chapter considers the tension between the economic and the social in the internal market, which is addressed in section X. The nature of the tension is set out, including the implications for the EU legal order. This is followed by discussion of the ways in which the tension is alleviated, albeit not cured. The factors that are salient in this regard are constitutional architecture, Treaty amendment, judicial interpretation, and the changing conception of the internal market.

The effectiveness of EU law and private arbitration

This article examines the impact of the principle of effectiveness of EU law on private arbitration. It uses the frame of post-award litigation to demonstrate that the relationship between these two normative orders is transversal and potentially very disruptive. This is evidenced by the alteration of the burden of proof in post-award actions, the irrelevance of the loss of the right to object, the widening of judicial review over awards that violate EU public policy, and the possibility to scrutinize errors of EU mandatory law concerning the merits of the case. The result is the weakening of the finality of awards and the replacement of the principle of procedural autonomy of Member States by European procedural primacy.

The Effectiveness of EU Law and Private Arbitration

This paper examines the impact that the principle of effectiveness of EU law has on private arbitration. It uses the frame of post-award litigation to demonstrate that the relationship between these two normative orders is transversal and potentially very disruptive. This is evidenced by the alteration of the burden of proof in post-award actions, the irrelevance of the loss of the right to object, the widening of judicial review over awards that violate EU public policy and the possibility to scrutinise errors of EU mandatory law concerning the merits of the case. The result is the weakening of the finality of awards and the replacement of the principle of procedural autonomy of Member States by European procedural primacy.

National courts and preliminary references: supporting legal integration, protecting national autonomy or balancing conflicting demands?

This article sheds new light on the role of national courts in the preliminary ruling procedure and European integration by examining: (1) whether national courts allow the Court of Justice of the European Union (CJEU) to decide politically sensitive cases and (2) whether national courts frame the cases by expressing support for an integration-friendly interpretation of EU law or by voicing an opinion in defence of the challenged national law. This study shows that the single most common court behaviour is to support legal integration by referring politically sensitive cases and expressing support for EU law. However, by examining the two choices together, this article also uncovers previously untheorised patterns of behaviour. These findings show that the national courts’ behaviour is not limited to either supporting or resisting integration. Instead, it is suggested that national courts may regularly contribute to striking a balance between EU integration and member state autonomy.

The 2017 Fidenato case and the 2015 Directive: The curious case of GMOs in Europe

The 2017 Fidenato case is the first legal dispute on the cultivation of genetically modified organisms (GMOs) decided by the Court of Justice of the European Union after the adoption of Directive 2015/412. The Directive allows for the exclusion of genetically modified cultivation from a national territory on grounds unrelated to scientific uncertainty. As in the 2007 Austrian case, in Fidenato the Court of Justice rejected the precautionary request from Italy to ban the cultivation of GMOs. The ruling centres on the argument of a ban being scientifically unfounded. This article discusses how the lack of harmonization between the European jurisprudence on the cultivation of GMOs and recent normative amendments introduced through the 2015 Directive affects the regulatory autonomy of Member States in adopting measures that ensure the protection of human health and the environment (i.e. biosafety) from the potential harmful effects posed by GMOs.

The double bailout: assessing new intergovernmentalism in the euro-crisis and the implications for European integration and democracy

ABSTRACT The Euro-crisis, the subsequent bailout efforts and ‘institution-building’ have triggered intense contestation. How these measures have changed the dynamics of integration, but also their democratic implications remain uncertain. This article examines the responses taken by the EU and its member state governments, the financial mechanisms, EFSM, EFSF, and ESM in particular. Their institutional character and how they conform to or diverge from previous institutional development in the EU are assessed. Building upon that, we address their connection with the democratic dilemma of the EU. European integration has long relied on balancing between intergovernmentalism and the supranational ‘Community method’. A growing preponderance of intergovernmentalism in the delicate policy area of fiscal and economic governance could be understood as a protection to member state autonomy. However, such developments can exacerbate multiple asymmetries and have problematic implications for democratic legitimacy, not just at EU level, but also for the member states themselves.

The Transnational Constitution of Europe's Social Market Economies: A Question of Constitutional Imbalances?

AbstractThroughout its history the European integration process has not undermined but rather strengthened the autonomy of member statesvis‐à‐viswider societal interests in relation to political economy, labour markets and social provisions. Both the ‘golden age nation state’ of the 1960s as well as the considerable transformations of member state political economies over the past decades, and especially after the euro‐crisis, was to a considerable degree orchestrated through transnational, most notably European, arrangements. In both cases the primary objective has been to strengthen state capacities of public power and law against the encroachment of private interests into the state. In spite of this continuity, considerable changes can be observed in the substantial economic policies advanced due to the switch from a Keynesian to a monetarist economic paradigm. It is suggested that the debate on constitutional imbalances between the EU's economic and social constitutions should be seen in this light.

Promotion and Harmonization of Antitrust Damages Claims by Directive EU/2014/104?

Directive EU/2014/104 is the latest legal instrument that crystalizes the evolution of EU competition law enforcement. This paper assesses critically the features of the Directive and the challenges it poses for its implementation by Member States. The Directive codifies the case law of the EUCJ and it encroaches upon the autonomy of Member States in setting the institutions, remedies and procedures available for victims’ of antitrust infringements. Although the Directive provides a fragmented and incomplete set of rules that only partially harmonizes antitrust damages claims in the EU, and it’s slanted towards follow-on cartel damages claims, it has publicised the availability of damages claims, creating momentum that will transform how competition law is enforced in the future.

Legal remedies in asylum and immigration law: the balance between effectiveness and procedural autonomy?

The paper tackles a widely discussed but still rather under-researched area of asylum and immigration law, more precisely its procedural aspects and its interactions within the public administration and administrative judiciary. It contributes to the debate about the Europeanization of public administration within the specific context of asylum and immigration law.The purpose of the paper is to examine the influence of European Union law on the legal regulation of administrative and judicial review of decisions rendered in asylum and immigration procedures.The research is based on an in-depth analysis of the dynamics of amendments and the motivation of national legislation while adopting new procedural rules in the above-mentioned areas on the case of the Czech Republic (based on the description and analysis of the legal regulation, explanatory memoranda and the case law, supplemented with certain comparative aspects). The procedural autonomy principle gets increasingly limited by other principles, namely the effectiveness principle and the principle of effective judicial protection. The paper therefore focuses on the margin of appreciation left to the national legislator: it determines whether the principle of procedural autonomy keeps the real relevancy while harmonising the asylum and immigration law and what is the influence of tensions between the aforementioned principles.The research shows that the legislator still maintains quite a wide degree of margin of appreciation in the administrative and judicial review of asylum and immigration decisions (apart from the visa procedures). However, a broadening of the interpretation of the effective judicial protection principle as provided by Article 47 of the Charter of Fundamental Rights of the EU decreases the scope of procedural autonomy and has the potential to influence not only individual legal remedy, but also the system of administrative or judicial remedies as such. Besides the overall findings related to the influence of European Union law on the review in asylum and immigration procedures, the article tackles numerous practical implications of amendments based in European Union law and practical challenges for the administrative and judicial review in concerned area of law.The paper provides a reaction to tensions coming from the need to find the balance between the obligation to provide an effective remedy and between the autonomy of Member States and their attempts to preserve national procedural traditions and specificities within the system of administrative and judicial review. It is original by its overall view on the problematic of remedies in asylum and immigration law and by a new perspective of interactions between national legislation and European Union law. Although the research is limited to the case study of the Czech Republic, certain aspects apply to other Member States with similarities within their system of administrative and judicial review.

Requirements for Horizontal Cooperation Between Contracting Authorities

The principal purpose of the article at hand is to elucidate the conditions on which Member States’ public authorities – in particular, local authorities – are allowed, without observing the principles and rules that emanate from the EU’s procurement directives, to enter into cooperation agreements for the performance of public tasks. Based on the principle of administrative autonomy of Member States, the relevant conditions were initially elaborated by the European Court of Justice in the Stadtreinigung Hamburg ruling and the ensuing case law. By and large, these conditions are reflected in the 2014 procurement directives. The article concludes that the new directives, in several regards, expand the possibilities of using cooperation agreements. The main principle that restricts recourse to such agreements is the prohibition against abusing the resulting joint ventures to engage in business activities. Several questions are as yet in dispute and may come to require settlement by way of preliminary rulings from the European Court of Justice.

The Effective Tax Burden Analysis after Société Générale, PMT and Brisal

This article focuses on the rulings of the EU Court of Justice in the Société Générale, PMT and Brisal cases, concluding that a tax burden analysis between non-residents and comparable residents should take into account a broad scope of directly linked expenses as defined by the national courts, based on the expenses that are deductible for residents. A direct deduction of expenses from the withholding tax base would be in breach of the autonomy of Member States in tax matters.

Towards an EU law doctrine on the exercise of discretion in national courts? The Member States’ self-imposed limits on national procedural autonomy

While it is widely recognized that national procedural law must satisfy the minimum requirements of effectiveness and equivalence, the way procedural law is regulated is generally considered a matter of Member State autonomy. However, this article demonstrates that the ECJ tends to award national legislatures greater autonomy in procedural matters than it does national courts. The effect is that the framing of national rules, such as the choice between mandatory regulation and conferral of discretion, does matter in EU law. Relying on the principle of sincere cooperation, the Court has on several occasions held that the existence of a discretion or a power on the part of the national court entails a duty to exercise that discretion or power in the way most conducive to the effective enforcement of EU law, even though the rule providing for the discretion is not in itself contrary to EU law. Discretion in national law is thereby used to enhance the impact of EU law. By increasing discretionary elements in procedural rules, national legislatures may thus unwittingly strengthen the impact of EU law in the Member States.

The Impact of EU Law on a National Competition Authority's Leniency Programme the Case of Poland

This paper is devoted to the impact of EU law on national leniency programmes, especially the Polish one. It analyses the jurisprudence of the Court of Justice in Pfleiderer, Donau Chemie and Schenker and identifies three specific areas of potential EU influence on national leniency programmes. The impact of EU law on the rules of access to leniency documents is analysed in detail on the basis of both EU and Polish law and taking into account the Draft Directive on Antitrust Damages Actions. The paper covers also the extent to which the principle of effectiveness of EU law limits the procedural autonomy of Member States in regard to their leniency programmes. This analysis covers both “negative conditions”, that is, elements of national leniency programmes which are incompatible with EU law, and “positive conditions”, in order words, those elements of domestic leniency programmes which are seen as necessary for securing their effectiveness.

European Governance of Citizenship and Nationality

The ability of a state to determine who its citizens are is a core element of sovereignty, yet even in this area coordination in the European Union has arisen as member states adjust their policies regarding citizenship acquisition and loss to take into account the European project. Furthermore, EU citizenship grants extensive rights that member states must respect, though the only way to become an EU citizen and acquire these rights remains through citizenship of a member state. This article sketches the development of EU citizenship from the 1950s to the present, mapping its evolution onto the phases of European governance utilised in this special issue. The search for closer coordination and common guidelines concerning citizenship flows from functional needs inevitably generated by superimposing a new supranational political community over existing national ones, resulting in shared governance within the framework of member state autonomy. Though welfare states and social systems in Europe remain national and jurisprudence safeguards the ability of member states to exclude individuals despite shared EU citizenship, legal judgments emphasise that member state competence concerning citizenship must be exercised in accordance with the Treaties and that member state decisions about naturalisation and denaturalisation are amenable to judicial review carried out in the light of EU law.