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Yearbook of European Law
Number of Followers: 14  
  Hybrid Journal Hybrid journal (It can contain Open Access articles)
ISSN (Print) 0263-3264 - ISSN (Online) 2045-0044
Published by Oxford University Press Homepage  [396 journals]
  • After Brexit…The Best of Both Worlds' Rebutting the Norwegian and
           Swiss Models as Long-Term Options for the UK
    • Authors: Pérez Crespo M.
      Pages: 94 - 122
      Abstract: On 23 June 2016 the UK held a referendum on EU membership; with a slight majority the ‘Brexit’ option won. Since then, political and economic uncertainty have prevailed regarding the structure of the future long-term relationship between the UK and the EU. Two widely cited alternatives before and after the referendum, presented as offering the best of both worlds, are the EEA or ‘Norway model’ and the negotiated bilateral agreements path or ‘Swiss model’. This article builds on and complements the scarce existing literature in order to inquire whether these two models would be feasible in the UK–EU framework and would suit the former’s expectations for this new relationship. To this end, the main features of the ‘Norway model’ and the ‘Swiss model’ are analysed mainly through the lens of the guiding principles for the establishment of the new partnership with the EU referred to by HM Government in its February 2017 White Paper. The conclusion is that, notwithstanding granting market access to a greater or lesser extent and freedom to secure free trade agreements with third countries, these models would still require the UK to make contributions to the EU budget and to be broadly subordinated to the EU in the area of immigration control. Regarding the imperative principle of the UK to take control of its own laws, the ‘Swiss model’ would arguably be less constraining than the EEA model; however, its current configuration would probably be impracticable in the UK-EU context.
      PubDate: Wed, 10 Jan 2018 00:00:00 GMT
      DOI: 10.1093/yel/yex021
      Issue No: Vol. 36 (2018)
  • Designing a Multilateral Investment Court: Issues and Options
    • Authors: Howse R.
      Pages: 209 - 236
      PubDate: Thu, 25 Jan 2018 00:00:00 GMT
      DOI: 10.1093/yel/yex013
      Issue No: Vol. 36 (2018)
  • European Union Law in Portuguese Courts: An Appraisal of the First
           Twenty-five Years after the Accession
    • Authors: Pereira Coutinho F.
      Pages: 358 - 390
      Abstract: This article provides an outline of the application of European Union (EU) law by Portuguese courts during the first two and a half decades of Portugal’s membership of the EU. It starts by tracing the evolution of preliminary references sent by Portuguese judges. The latter provide a first glimpse of the ‘Europeanization’ of Portuguese judges, but do not reveal more than the ‘tip of the iceberg’ of cases that involve the application of EU law. To fill this gap, the article then considers cases where EU law was applied without the assistance of the European Court of Justice (ECJ). Special attention is given to quoting of the case law of the Luxembourg court and to the application of the ‘constitutional principles’ of supremacy, direct effect, and state responsibility. The articles ends with a reflection on the reasons that may explain the absence of a more robust cooperation between the Portuguese courts and the ECJ, and a discussion of possible pathways of reform that could foster the application of EU law in the Portuguese legal order.
      PubDate: Tue, 16 Jan 2018 00:00:00 GMT
      DOI: 10.1093/yel/yex019
      Issue No: Vol. 36 (2018)
  • The Europeanization of Good Tax Governance
    • Authors: Panayi C.
      Pages: 442 - 495
      PubDate: Fri, 12 Jan 2018 00:00:00 GMT
      DOI: 10.1093/yel/yex020
      Issue No: Vol. 36 (2018)
  • EU Law as an Agent of National Constitutional Change: Miller v Secretary
           of State for Exiting the European Union
    • Pages: 829 - 829
      Abstract: Gavin Phillipson. Yearbook of European Law, (2017), Vol. 36, No. 1; pp. 46–93; doi:10.1093/yel/yex012.
      PubDate: Thu, 04 Jan 2018 00:00:00 GMT
      DOI: 10.1093/yel/yex022
      Issue No: Vol. 36 (2018)
  • Brexit, A Drama: The Interregnum
    • Authors: Craig P.
      Pages: 3 - 45
      PubDate: Mon, 23 Oct 2017 00:00:00 GMT
      DOI: 10.1093/yel/yex005
      Issue No: Vol. 36 (2017)
  • EU Law as an Agent of National Constitutional Change: Miller v Secretary
           of State for Exiting the European Union
    • Authors: Phillipson G.
      Pages: 46 - 93
      Abstract: This article analyses the recent decision of the UK Supreme Court determining the UK’s ‘constitutional requirements’ for triggering Article 50 TEU. It demonstrates that the underlying disagreement in the case concerned the proper conceptualisation of EU law as it operates in the UK legal order. The Government and its academic supporters denied that EU law rights could be equated to domestic law rights; this allowed them to argue that their loss through withdrawal from the EU would not breach the long-standing prohibition on Executive prerogative action removing domestic law rights or altering domestic law. The article argues that the Supreme Court was right to reject this argument. In doing so, the Court emphasised that EU law had not only deeply infused the domestic legal order but had significantly changed it. Hence use of Executive powers to withdraw from the EU would amount to the Executive changing the constitution. The article considers how this ‘constitutional change’ argument – already strongly criticised – should be understood, and seeks to shed light on it via the notion that constitutional amendment is usually recognised as an exercise of especial normative significance. While acknowledging that the UK’s constitution lacks the formal process for such change required by other European states, it argues that the invocation of this principle in Miller may be related to recent developments in constitutional doctrine recognising the special status of fundamental constitutional rights and principles. In doing so, it argues for a significant change to our understanding of ‘constitutional statutes’.
      PubDate: Wed, 22 Nov 2017 00:00:00 GMT
      DOI: 10.1093/yel/yex012
      Issue No: Vol. 36 (2017)
  • The Several Internal Markets
    • Authors: Weatherill S.
      Pages: 125 - 178
      PubDate: Mon, 16 Oct 2017 00:00:00 GMT
      DOI: 10.1093/yel/yex007
      Issue No: Vol. 36 (2017)
  • The Court of Justice as an inter-state court
    • Authors: Butler G.
      Pages: 179 - 208
      PubDate: Sat, 09 Dec 2017 00:00:00 GMT
      DOI: 10.1093/yel/yex014
      Issue No: Vol. 36 (2017)
  • Activist Infighting among Courts and Breakdown of Mutual Trust' The
           Danish Supreme Court, the CJEU, and the Ajos Case
    • Authors: Neergaard U; Sørensen K.
      Pages: 275 - 313
      Abstract: In its combative Ajos judgment recently rendered by the Danish Supreme Court, the court openly and controversially challenged the authority of the CJEU. By the same token, in the preliminary ruling by the CJEU preceding it, the CJEU had continued to develop the controversial general principle prohibiting age discrimination. This issue lay at the heart of the dispute and it seems very likely that the Danish Supreme Court felt that the CJEU had been too activist when it originally ‘launched’ this general principle. Indeed, the reasoning of the Danish Supreme Court gives the impression that the CJEU had itself created it out of nowhere. In turn this appeared to be an implicit reference to the widely criticized interpretative approach of the CJEU, resulting in a far-reaching willingness to espouse judicial activism. But in acting as it did, it seems ironic that the Danish Supreme Court itself showed that it too had an activist streak. Thus, both Courts were quite imaginative in trying to mould the central issues as falling within their exclusive jurisdiction. As a consequence of the judgments, parts of EU law are not, it appears, fully part of Danish law, but unfortunately the full implications and therefore the remedy are far from certain. While both judgments appear to reflect a lack of mutual trust between the two courts, they also expose a range of highly significant issues of wide importance. To understand both what went wrong in the judicial dialogue and the wider issues at stake, in this article the judgments are analysed in depth and placed into their wider context. Among other matters, we have considered how the courts should strike a sensitive balance, which has to exist in the relationship between the national courts and the CJEU, requiring mutual trust or, at the least, judicial comity in accordance with the hierarchy of norms established by virtue of EU law.
      PubDate: Mon, 06 Nov 2017 00:00:00 GMT
      DOI: 10.1093/yel/yex008
      Issue No: Vol. 36 (2017)
  • The UK Supreme Court and References to the CJEU
    • Authors: Arnull A.
      Pages: 314 - 357
      PubDate: Tue, 31 Oct 2017 00:00:00 GMT
      DOI: 10.1093/yel/yex006
      Issue No: Vol. 36 (2017)
  • The Elusive Influence of the Advocate General on the Court of Justice: The
           Case of European Citizenship
    • Authors: Šadl U; Sankari S.
      Pages: 421 - 441
      Abstract: How much influence does the Advocate General (AG) have on the Court' What factors does her influence depend on' To answer these questions, we develop a model of AG influence, distinguishing between implicit and explicit influence, and apply the model to EU citizenship case law. We show, first, that two personal characteristics of the AG, career background and seniority, sway the Court to adopt the reasoning and the solution proposed in the opinion. Second, AG influence varies with Court composition: whereas resilient against many institutional and personal factors, the AsG will have less influence on the Grand Chamber. Against this backdrop we argue that AG influence (immediate and delayed) depends mostly on personal features of individual AsG with established reputations but is at the same time limited by institutional factors and the context of judicial decision making.
      PubDate: Mon, 10 Apr 2017 00:00:00 GMT
      DOI: 10.1093/yel/yex001
      Issue No: Vol. 36 (2017)
  • The Common Fisheries Policy: An Exercise in Marine Exploitation
    • Authors: Wakefield J.
      Pages: 496 - 521
      PubDate: Tue, 21 Nov 2017 00:00:00 GMT
      DOI: 10.1093/yel/yex011
      Issue No: Vol. 36 (2017)
  • Making Markets Work in the Public Interest: Combating Hazardous Alcohol
           Consumption through Minimum Pricing Rules in Scotland
    • Authors: Andreangeli A.
      Pages: 522 - 552
      PubDate: Fri, 04 Aug 2017 00:00:00 GMT
      DOI: 10.1093/yel/yex004
      Issue No: Vol. 36 (2017)
  • Regulating Criminal Finance in the EU in the Light of the International
    • Authors: Borlini L.
      Pages: 553 - 598
      Abstract: Money laundering is essential for the very existence and proliferation of criminal organizations. It also allows the corrupt and tax evaders to enjoy the profits of their crime. The recent terrorist attacks in Paris and Brussels demonstrate that terrorism continues to inflict pain and suffering all over the world and Europe is certainly not immune to the same; further, the international community needs to address this phenomenon with adequate strategies, including tackling terrorist financing. Such crimes pose extremely complex challenges to regulation. This article examines the recent evolution of the EU anti-money laundering and counter-terrorist financing legislative framework, focusing especially on the relationships between the main international initiatives in the field (in particular the FATF Standards) and the newest EU legislation. It suggests that the international norms have had a decisive influence on the latest development of legislation at the EU level and within its Member States. It further argues that it is mainly the preventive component of such legislation that will be strengthened by the EU instruments adopted in mid 2015. However, it concludes that the adoption of global standards has posed significant challenges to the EU legislative framework. The arguments are developed in three parts. The first part outlines the main international initiatives in the field. It illustrates that the current international legislative framework has a multidisciplinary approach which also modelled the EU legislation. The second part deals with the repressive component of such an approach and assesses the limits of the EU criminal approach against laundering and terrorist financing crimes. Finally, the last part examines the preventive component, it focuses on the recent EU legislation and addresses the challenges posed to the EU legislative framework when accommodating global standards, especially with regard to possible tensions with fundamental freedoms and human rights.
      PubDate: Sat, 07 Jan 2017 00:00:00 GMT
      DOI: 10.1093/yel/yew030
      Issue No: Vol. 36 (2017)
  • The Quest for Reasonable Retail Energy Prices in Europe: Positive and
           Normative Dimensions
    • Authors: Mantzari D.
      Pages: 599 - 627
      Abstract: Public opinion in various EU Member States increasingly perceives energy prices as unreasonable. Primarily owing to distributional concerns, state interference with the liberalized retail energy market is ever-present across many EU Member States, despite its implications for the development of competitive (national and EU) energy markets. Rather than solely engaging with the conditions of state intervention as such, this article takes a step back and argues that an appreciation of what constitutes a reasonable price for energy supply is a necessary prerequisite in determining the relevance, scope, and conditions of state intervention in retail energy prices. In the absence of a definition of the concept in secondary legislation, it offers a novel conceptual framework centred on the contextual interpretation of ‘a reasonable price for energy supply’. This article offers two understandings of reasonableness: one underpinned by the principle of market competition and the other understood as affordability. It elaborates on the different set of conditions and criteria against which they are judged and it explains how these have informed various instruments enshrined in the energy liberalization directives for achieving reasonable prices for end-consumers. These range from consumer empowerment measures to more direct consumer protection measures informed by affordability concerns. After providing a taxonomy of the latter instruments, it examines their respective advantages and disadvantages by focusing on how these are perceived by the EU framework. Its broader aim is to contribute to a more nuanced understanding of what is meant by a ‘reasonable retail energy price’ within the context of national and EU competitive retail energy markets and explore how the resulting tension between the two understandings of reasonableness is accommodated in the broader EU constitutional and institutional context.
      PubDate: Thu, 07 Dec 2017 00:00:00 GMT
      DOI: 10.1093/yel/yex016
      Issue No: Vol. 36 (2017)
  • The Legal Framework for SEP Disputes in the EU Post-Huawei: Whither
    • Authors: Zingales N.
      Pages: 628 - 682
      Abstract: This article revisits the antitrust treatment of unilateral conduct in Standard Essential Patent (SEP) disputes in the EU, with particular focus on the landmark CJEU judgment in Huawei v ZTE and the way it has affected subsequent developments before national courts. It explains that while the court in Huawei significantly improved legal certainty both for SEP holders and their potential licensees, it also left open a number of crucial questions affecting everyday licensing practice. First, it is not entirely clear whether the liability of an SEP holder presupposes leveraging by a vertically integrated firm or can also arise in purely vertical or horizontal relationships. Secondly, the safe harbour procedure formulated in the judgment begs important questions concerning burden of proof and portfolio licensing, which have given rise to divergent interpretations. It follows that the space remains wide open for competing national and even regional approaches to the rights and obligations of SEP holders, calling for further European harmonization—be it judicially, legislatively, or administratively through the European Commission. In support of the latter measures, the article illustrates the limited remit of EU private international law rules in preventing the forum shopping which is likely to unfold as a result of a fragmented landscape for the resolution of SEP disputes, and the limited ability of the Unified Patent Court to ameliorate the associated fragmentation a.nd coordination problems.
      PubDate: Thu, 14 Dec 2017 00:00:00 GMT
      DOI: 10.1093/yel/yex018
      Issue No: Vol. 36 (2017)
  • Big Data and Personalized Price Discrimination in EU Competition Law
    • Authors: Townley C; Morrison E, Yeung K.
      Pages: 683 - 748
      PubDate: Wed, 13 Dec 2017 00:00:00 GMT
      DOI: 10.1093/yel/yex015
      Issue No: Vol. 36 (2017)
  • The Participation of the EU and its Member States in Multilateral
           Environmental Negotiations post Lisbon
    • Authors: Van Eeckhoutte D; Corthaut T.
      Pages: 749 - 809
      PubDate: Tue, 25 Jul 2017 00:00:00 GMT
      DOI: 10.1093/yel/yex003
      Issue No: Vol. 36 (2017)
  • The Humanitarian Law Principle of Independence Versus the European
           Union’s Missionary Principle
    • Authors: Broberg M.
      Pages: 810 - 828
      Abstract: According to public international law, humanitarian aid must comply with four fundamental principles, one of which being the principle of independence. Duly complying with this principle means that the humanitarian objectives must be autonomous from political, economic, military, or other objectives, and the principle serves to ensure that the sole purpose of humanitarian aid remains to relieve and prevent the suffering of victims of humanitarian crises. This requirement places the European Union—one of the world’s largest donors of humanitarian aid—in a dilemma since, arguably, the Union’s treaty-bases simultaneously require that it promotes, amongst others, principles of democracy, rule of law, human rights, and free trade when providing humanitarian aid to third countries. This article analyses this dilemma. It points out that whilst conflicts only arise infrequently, there have been occasions where they have indeed arisen, and it is argued that the principle of independence takes precedence over the treaty-based duty to promote ‘European values’.
      PubDate: Sun, 23 Apr 2017 00:00:00 GMT
      DOI: 10.1093/yel/yex002
      Issue No: Vol. 36 (2017)
  • Subsidiarity as a Limit to the Exercise of EU Competences
    • Pages: 829 - 829
      Abstract: Jacob Öberg. Yearbook of European Law, (2016), Vol. 35, No. 1; pp. 1–30; doi:10.1093/yel/yew027. The following changes have been made: On pages 3 and 4 these two sentences were duplicated and have been deleted: A literal reading of the guidelines offers an ambiguous response. The original Edinburgh guidelines suggested, by using the terms ‘and/or’ between the three indents, that the guidelines can be both cumulative and alternative. Footnote 24 has been updated with the correct case number: (Case C-34/09 Ruiz Zambrano [2011] ECR I-01177, paras 40–45). The publisher regrets this error.
      PubDate: Wed, 04 Jan 2017 00:00:00 GMT
      DOI: 10.1093/yel/yew032
      Issue No: Vol. 36 (2017)
  • The Micro Level: Insights from Specific Policy Areas: Mapping the
           International and European Governance of Renewable Energy
    • Pages: 830 - 830
      Abstract: Rafael Leal-Arcas and Stephen Minas. Yearbook of European Law, (2016), Vol. 35, No. 1; pp. 621–666; doi:10.1093/yel/yew022.
      PubDate: Thu, 12 Jan 2017 00:00:00 GMT
      DOI: 10.1093/yel/yew031
      Issue No: Vol. 36 (2017)
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