Authors:Jacob Öberg Pages: 155 - 163 Abstract: Maastricht Journal of European and Comparative Law, Volume 28, Issue 2, Page 155-163, April 2021. The articles in this special issue consider the institutional foundations of the Union’s criminal policy – a highly critical question for the future development of the Area of Freedom, Security and Justice. The ratification of the Lisbon Treaty and the subsequent legal and political developments have entailed an unprecedented reinforcement of the powers of the EU’s criminal justice agencies Europol, Eurojust and, recently, the establishment of a novel criminal justice body – the European Public Prosecutor’s Office. On the basis of the Treaty mandate, the EU legislator has adopted important reforms such as the EPPO Regulation, and new Europol and Eurojust regulations. In light of these developments, this special issue explores via a multi-disciplinary investigation the extent to which the increased competences of the EU and the stronger presence of EU criminal justice agencies have transformed EU criminal law from an ‘intergovernmental’ regime to a ‘supranational’ and ‘integrated’ framework. We expect that this special issue will enhance further debate on EU criminal justice agencies, encourage novel paths to bridge the boundaries between disciplinary epistemic communities in the study of EU criminal justice and more broadly contribute to an advanced understanding of the role of law in social and political integration. Citation: Maastricht Journal of European and Comparative Law PubDate: 2021-04-06T04:17:47Z DOI: 10.1177/1023263X211005977 Issue No:Vol. 28, No. 2 (2021)
Authors:Jacob Öberg Pages: 164 - 181 Abstract: Maastricht Journal of European and Comparative Law, Volume 28, Issue 2, Page 164-181, April 2021. This article critically examines the extent to which the European Public Prosecutor’s Office can be claimed to constitute a prime example of supranational criminal law. The article observes that among policymakers and commentators, the Office appears to be a hallmark of the transformation of EU criminal law from an intergovernmental paradigm to a strong federal and supranational polity. The article discusses the scope, nature and limits to the powers of the European Public Prosecutor’s Office, as well as its operating structure in light of Article 86 TFEU and the recently adopted EPPO Regulation. It departs from the basic assumption that the EPPO stands in the midst of supranationalism and intergovernmentalism. Whilst the EPPO is envisaged to be independent of the Member States, the Office’s complicated, multifaceted and vertical structure means that Member States are able to direct, to some extent, its activities. The article argues, however, that a general assessment of the Office’s operational and strategic direction (where its operational activities are managed and supervised by centralized ‘European’ prosecutors), and the type (direct criminal enforcement powers) of powers it has makes it distinctive as the most ‘integrated’ and ‘supranational’ EU agency. Citation: Maastricht Journal of European and Comparative Law PubDate: 2021-04-22T05:20:47Z DOI: 10.1177/1023263X211005980 Issue No:Vol. 28, No. 2 (2021)
Authors:Kerttuli Lingenfelter, Samuli Miettinen Pages: 182 - 191 Abstract: Maastricht Journal of European and Comparative Law, Volume 28, Issue 2, Page 182-191, April 2021. In the three decades since it was established in the context of a secretive and technocratic intergovernmental organization, Europol has evolved into a European Union agency with some, albeit limited, supranational capacities. This article overviews the gradual legal development of Europol’s powers and discusses the obstacles to creating a European federal police force. Limits to powers and accountability continue to frame discussions on EU’s operational criminal justice powers. While many EU agencies can lay claim to embryonic supranational enforcement agency, the EU Member States have closely guarded operational and prosecutorial enforcement powers. This guardedness still shows, especially in EU criminal justice agencies’ reliance on intergovernmental structures, such as colleges of national members, and mutually recognized but ultimately national decisions and judgments. Through the lens of its history, this article examines how and what kind of balance has been struck between accountability and competences in the current state of evolution toward Europol’s potential supranational authority. Citation: Maastricht Journal of European and Comparative Law PubDate: 2021-04-22T05:20:46Z DOI: 10.1177/1023263X211005160 Issue No:Vol. 28, No. 2 (2021)
Authors:Christopher Harding, Jacob Öberg Pages: 192 - 211 Abstract: Maastricht Journal of European and Comparative Law, Volume 28, Issue 2, Page 192-211, April 2021. This article addresses supranational governance of EU criminal justice agencies from the perspective of the various agencies of policy and rulemaking who have contributed to the impressive developments in the field of EU criminal law. Taking as a working hypothesis the happenstance and haphazard character of this field of policy and law, it suggests that there is an absence of design. In the discussion the article proposes the Platonic analogy of the ‘ship of fools’ (Plato, Republic, Book VI) as an explanatory tool. The ship's captain is the guiding spirit of criminal law, but the crew of the ship, who have the power to take control, have diverse interests and ideas about how the ship should be taken to sea and navigated. The article addresses thematically and chronologically the development of EU criminal policy by means of this framework. Subsequently it discusses the extent to which the ‘ship of fools’ analogy is relevant to the development of EU criminal justice agencies, and to the emergence of a European Public Prosecutor. Underlying all this discussion is the uneasy sense that the true pilot of EU criminal law and policy has been displaced, in particular by ‘instrumental’ pilots of securitisation and effectiveness. Citation: Maastricht Journal of European and Comparative Law PubDate: 2021-04-22T05:20:47Z DOI: 10.1177/1023263X211005967 Issue No:Vol. 28, No. 2 (2021)
Authors:Thomas Elholm Pages: 212 - 228 Abstract: Maastricht Journal of European and Comparative Law, Volume 28, Issue 2, Page 212-228, April 2021. This article discusses the Union’s general inspirational idea of creating a ‘common sense of justice’ and its implications with reference to the development of the European Public Prosecutor. When the Commission presented its vision of an area of justice, it declared that the ‘ambition is to give citizens a common sense of justice throughout the Union’. Although a sense of justice seems to be something psychological and emotional, it also seems almost inevitably to promote EU integration. The article discusses the various roles that the EPPO may have in contributing to a common sense of justice and in particular the EPPO’s objective of achieving a Union-wide coherent practice on prosecution and penalty levels. It analyses critically whether this practice – by mediating between the different ‘common’ senses of justice in each Member State – is capable of contributing to a common sense of justice. Citation: Maastricht Journal of European and Comparative Law PubDate: 2021-04-22T05:20:46Z DOI: 10.1177/1023263X211005970 Issue No:Vol. 28, No. 2 (2021)
Authors:Sarah Léonard, Christian Kaunert Pages: 229 - 244 Abstract: Maastricht Journal of European and Comparative Law, Volume 28, Issue 2, Page 229-244, April 2021. This article examines the extent to which, if any, the development of Europol’s external relations over time has contributed to the integration of EU policing and criminal justice. More precisely, with reference to the academic debates on ‘intergovernmentalism’ and ‘supranationalism’, it examines the extent to and the ways in which the growth in Europol’s external relations has indicated a move away from intergovernmentalism towards more supranationalism in the EU’s policing and criminal justice cooperation. It does so by systematically examining the development of Europol’s external relations over time using a continuum ranging from ‘intergovernmentalism’ to ‘supranationalism’ as ideal-types, whilst arguing for not reducing supranationalism to the ‘Community method’. The article shows that the balance between intergovernmental and supranational features in the governance of Europol’s external relations has changed over time as the latter have been gradually reinforced. Starting from a position close to the intergovernmental pole of the continuum, Europol has moved significantly towards the supranational pole in its external relations, especially after the Europol Regulation began to apply in 2017. Citation: Maastricht Journal of European and Comparative Law PubDate: 2021-03-25T03:04:36Z DOI: 10.1177/1023263X211005162 Issue No:Vol. 28, No. 2 (2021)
Authors:Valsamis Mitsilegas Pages: 245 - 264 Abstract: Maastricht Journal of European and Comparative Law, Volume 28, Issue 2, Page 245-264, April 2021. The article will examine the challenges that the establishment of the European Public Prosecutor’s Office poses for the rule of law – a question which has been underexplored in the policy and academic debate on the establishment of the EPPO, which focused largely on questions of structure and powers of the EPPO and the battle between intergovernmental and supranational visions of European prosecution. The implications of the finally adopted legal framework on the EPPO on the rule of law will be analysed primarily from the perspective of the rule of law as related to EPPO investigations and prosecutions and their consequences for affected individuals – in terms of legal certainty and foreseeability, protection from executive arbitrariness, effective judicial protection and defence rights. The article will undertake a rule of law audit of the EPPO by focusing on three key elements of its legal architecture – the competence of the EPPO, applicable law and judicial review – and the interaction between EU and national levels of investigation and prosecution that the EPPO Regulation envisages. The analysis will aim to cast light on the current rule of law deficit in a hybrid system of European prosecution located somewhere between co-operation and integration. Citation: Maastricht Journal of European and Comparative Law PubDate: 2021-03-30T04:29:20Z DOI: 10.1177/1023263X211005933 Issue No:Vol. 28, No. 2 (2021)
Authors:Marianne L. Wade Pages: 265 - 280 Abstract: Maastricht Journal of European and Comparative Law, Volume 28, Issue 2, Page 265-280, April 2021. The article offers a critique of the current structure of the EPPO from a victim rights perspective. It observes that the creation of the EPPO revolutionizes the institutional set-up of EU criminal justice by creating a supranational body to address the enforcement gaps identified in the protection of the financial interests of the EU. Unsurprisingly, this breakthrough has met with resistance from the Member States, which have directed their scepticism into the structural, procedural and substantive provisions for this new office. By consequently tying the EPPO to national law in a plethora of instances, they have created a body which primarily addresses serious financial crimes within the framework of domestic criminal justice systems. However, these approaches are, in turn, heavily marked by a pragmatic concept of actuarial justice, with negotiation and plea-bargaining as the dominant practices across Europe. Article 40 of the EPPO Regulation ensures that there is scope for such practice to be adopted for cases falling within the EPPO’s competence. Highlighting the problems associated with prosecutorial deal-making, the article reflects upon the appropriateness of adopting such practice for the EPPO. It tentatively argues that a more honest recognition of the supranational nature of the EPPO (also reflected in its procedural rules) and of the type of victimization it seeks to address, might have instigated a productive dialogue ensuring the EPPO’s work is framed with reference to serving a community and securing victim protection. Above all, this would have constituted a significant step towards ensuring that the EPPO’s work is legitimate and perceived as such by the EU citizens it seeks to serve and protect from victimization. Citation: Maastricht Journal of European and Comparative Law PubDate: 2021-04-22T05:20:47Z DOI: 10.1177/1023263X211006516 Issue No:Vol. 28, No. 2 (2021)
Authors:Maria José Rangel de Mesquita Abstract: Maastricht Journal of European and Comparative Law, Ahead of Print. The article addresses the issue of judicial control of the implementation of Common Foreign and Security Policy at international regional level within the framework of the relaunching of the negotiation in view of the accession of the EU to the ECHR. Considering the extent of jurisdiction of the CJEU in respect of Common Foreign and Security Policy field in the light of its case law (sections 1 and 2), it analyses the question of judicial review of Common Foreign and Security Policy within international regional justice by the ECtHR in the light of the ongoing negotiations (section 3), in the perspective of the relationship between non-national courts (section 3.A), having as background the (2013) Draft Agreement of accession (section 3.B.1). After addressing the relaunching of the negotiation procedure (section 3.B.2) and the issue of CFSP control by the ECtHR according to the recent (re)negotiation meetings (section 3.B.3), some concrete proposals, including for the redrafting of the accession agreement, will be put forward (section 3.B.4), as well as a conclusion (section 4). Citation: Maastricht Journal of European and Comparative Law PubDate: 2021-03-26T07:41:42Z DOI: 10.1177/1023263X21988241
Authors:Reinhard Steennot Abstract: Maastricht Journal of European and Comparative Law, Ahead of Print. Within the European Union, consumers concluding contracts with traders either at a distance or outside the traders’ premises are generally entitled to withdraw from the contract. However, in certain cases, enumerated in article 16 of the Consumer Rights Directive, the right of withdrawal does not apply. One of the exceptions to the right of withdrawal concerns contracts relating to the supply of goods that are made to the consumer’s specifications or that are clearly personalized. In Möbel Kraft, the ECJ decided that a trader may rely on this exception from the outset and not only after he has begun to produce the goods. Citation: Maastricht Journal of European and Comparative Law PubDate: 2021-03-19T04:21:58Z DOI: 10.1177/1023263X21996014
Authors:Lorin-Johannes Wagner Abstract: Maastricht Journal of European and Comparative Law, Ahead of Print. The question of who ought to be regarded as Union citizen is a central but not an easily answered question. Drawing on an analysis of the ECJ’s case-law and the underlying constitutional set up of Union citizenship, this article argues that the notion of nationality in EU law is based on a jurisdictional conception that builds on the idea of a genuine link and a territorial link with the EU. Relying on this understanding the article assesses the peculiar cases of Germany, the UK and Denmark, establishing not only if and how Member States can reconfigure the meaning of their nationality under EU law but also highlighting that the notion of nationality as a peremptory marker for Union citizenship is defined within the constitutional realm of EU law. The understanding that Member States are free to define their nationality within EU law, hence, is a misplaced overstatement of sovereignty. Against this backdrop the last part of the article turns to the case of Latvian non-citizens, arguing that Latvian non-citizens, who are generally not regarded as Union citizens, have been Union citizens all along. Citation: Maastricht Journal of European and Comparative Law PubDate: 2021-03-10T11:35:36Z DOI: 10.1177/1023263X20986078
Authors:Jaakko Husa Abstract: Maastricht Journal of European and Comparative Law, Ahead of Print. This paper discusses comparative law and literature as an approach to studying law culturally, addressing how the study of literature from the standpoint of comparative law identifies one way of coding legal cultural knowledge in literature. The interaction between the worlds of law and culture is addressed through imaginary legal transplants. By transplanting legal ideas from the real world to literature, authors imagine worlds as they construct legal meanings in their storytelling. Whereas a legal transplant is a notion filled with problems and paradoxes, in literature it is far less problematic. Imaginary legal transplants are different from real-world transplants because in the real world legal diffusion takes place in mutant form, transforming transplants into irritants. The legislator never controls the world completely, whereas in fictional literature the creator of a written work controls the created world. In this sense, it is argued, imaginary legal transplants are perfect transplants. Citation: Maastricht Journal of European and Comparative Law PubDate: 2021-02-17T05:41:03Z DOI: 10.1177/1023263X21995337
Authors:Celia Challet, Pierre Bachelier Abstract: Maastricht Journal of European and Comparative Law, Ahead of Print. The question of the recognition of the independence of Kosovo has been a dividing factor among Member States for more than a decade. Never before, however, had it led to an action for annulment before European courts. In Spain v. Commission, the Kingdom of Spain challenged the validity of a Commission decision providing for the participation of Kosovo’s national regulation authority in the Body of European Regulators for Electronic Communications (BEREC). The General Court ruled that the Commission could consider Kosovo as a third country in order to provide for the participation of its national regulation authority in BEREC. The Commission could also rely on the Stabilisation and Association Agreement concluded between the EU and Kosovo in order to enhance such cooperation. This judgment is of particular importance in terms of both EU-Kosovo relations and participation of third countries in EU agencies. Citation: Maastricht Journal of European and Comparative Law PubDate: 2021-02-08T06:28:39Z DOI: 10.1177/1023263X20988232
Authors:Luigi Lonardo Abstract: Maastricht Journal of European and Comparative Law, Ahead of Print. This article considers whether national courts may act as catalyst of normalization of Common Foreign and Security Policy, in cases on the merits of which prima facie the Court of Justice of the European Union (CJEU) does not have jurisdiction. First, regardless of the exact scope of the CJEU’s jurisdiction, this contribution surveys arguments in favour (the principle of conferral and of effective judicial protection, expression of the value of the rule of law) and against (the notion of autonomy and consistency of EU law) the jurisdiction of national courts. It concludes in favour of the former option. Second, it considers whether national courts may act as agents of ‘normalization’ of CFSP, where this word means the application of general rules of EU law to this policy even in the absence of express literal provision in the Treaty. It argues that national courts may act as catalyst for the normalization of this policy in so far as they can, through the preliminary ruling procedure, give an opportunity to the CJEU to rule on (at least some) CFSP acts. Citation: Maastricht Journal of European and Comparative Law PubDate: 2021-02-03T09:07:11Z DOI: 10.1177/1023263X20982582
Authors:Daniele D’Alvia Abstract: Maastricht Journal of European and Comparative Law, Ahead of Print. This article aims to determine whether mobile payments can be characterized by a legal constant, or common legal meaning. Indeed, mobile payments are a new form of payment system that is shaping the new economy of financial markets. Generally, they are part of the Fintech phenomenon, and they are specifically regulated in Europe, inter alia, under the Payment System Directive and the Regulation on Multilateral Interchange Fees. Nonetheless, those secondary hard law acts do not include any compulsory legal definition for mobile payments, which remain undefined and conventionally identified as means of proximity or remote payments. With that in mind, the article introduces for the first time in comparative law a new concept that aims at discovering meanings rather than similarities and differences that are irremediably limited to a merely descriptive function. To this end, the article argues that each time the constant outside of the law is subsequently recognized as ‘legal’, it becomes a legal constant, which is in turn capable of effectively revolutionizing the same study of mobile payments as well as of comparative law tout court. Citation: Maastricht Journal of European and Comparative Law PubDate: 2021-02-03T09:04:31Z DOI: 10.1177/1023263X20987190
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