![]() |
Yearbook of European Law
Number of Followers: 23 ![]() ISSN (Print) 0263-3264 - ISSN (Online) 2045-0044 Published by Oxford University Press ![]() |
- NextGenerationEU: Hamiltonian moment or European New Deal'
-
Free pre-print version: Loading...Rate this result: What is this?Please help us test our new pre-print finding feature by giving the pre-print link a rating.
A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Pages: 3 - 41
Abstract: AbstractDuring the coronavirus disease (COVID-19) pandemic, the European Union (EU) took the unprecedented step of borrowing 750 billion euros on capital markets, part of which was to be spent in the form of grants. As prior interpretations of the Union’s constitution tended to suggest that it had no power for deficit spending, NextGenerationEU (NGEU) arguably constitutes a major constitutional transformation for the Union. As so often in the literature on the EU, the comparison was made with the federal system of the USA: Commentators likened the Union’s constitutional transformation to the transformation engineered by Hamilton, the financial founding father of the USA, as well as Roosevelt’s New Deal. When the USA was teetering on the brink of bankruptcy, Hamilton transformed the landscape of public debt in the USA by proposing to restructure and assume the debt of the states on the balance sheet of the federal government. For the first time, the public debt of the federal government of the USA played a critical role in its economy. The Great Depression prompted another transformation for the finances of the USA. Roosevelt promised his voters to bring back economic growth. During Roosevelt’s tenure in office, the public borrowing of the USA went up significantly. This contribution examines the constitutional controversies provoked by Hamilton’s and Roosevelt’s transformative policies. It argues that, in spite of some similarities, the question of the constitutionality of deficit spending was controversial neither in Hamilton’s nor in Roosevelt’s day. More fundamentally, it argues that both Roosevelt and Hamilton had a transformative vision for the economy not shared by NGEU.
PubDate: Tue, 16 Jan 2024 00:00:00 GMT
DOI: 10.1093/yel/yead009
Issue No: Vol. 42 (2024)
-
- Introducing the legislative priority rule: a constitutional compass for
the Court-
Free pre-print version: Loading...Rate this result: What is this?Please help us test our new pre-print finding feature by giving the pre-print link a rating.
A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Pages: 84 - 101
Abstract: AbstractThe ambiguous nature of the internal market allows for EU legislative input on two tensions animating this field since its inception, those being how to divide power between the EU and Member States and how to reconcile the requirements of integration and regulation. The Court can sometimes struggle with accommodating such input with its Treaty interpretation, leading to further tension with the EU legislator. In the internal market for goods, however, it can rely on the Legislative Priority Rule to resolve disputes in a coherent, Treaty-compliant manner. Casting exhaustive EU legislation as the sole norm against which to assess national product measures, to the exclusion of Articles 34–36 of the Treaty on the Functioning of the European Union (TFEU), this longstanding Rule is, from one perspective, a simple procedural tool to establish the Court’s framework of reference. In reality, however, invoking (or excluding) the Rule can have a substantive and institutional dimension, as its application (or not) engages the relationships between national, secondary, and primary law and, by extension, the Member States, EU legislator, and Court. On the one hand, the Rule enforces EU primacy by pre-empting national competence in the presence of harmonization. On the other, by suspending direct application of Articles 34–35 TFEU, it also implies deference to the EU legislator, and indirectly to the Member States, which enjoy discretion to set standards and determine how power is shared. As a result, while Member States cannot avoid free movement obligations, they can defend national rules by reference to this EU standard to which they have contributed. There is in other words an alignment under the Rule between the dynamics of Exit and Voice, with the Court exercising boundary control to ensure compliance with primary law. It is on this basis that I have come to identify the Legislative Priority Rule as a sort of ‘constitutional compass’ to guide the distribution of power in the internal market for goods. Despite this key role, however, its existence and impact remain relatively unknown or at best ignored, reflecting a gap in understanding the Court’s toolbox for review and a failure to appreciate the role of secondary legislation in building a stable, Treaty-compliant regulatory system.
PubDate: Tue, 02 Jan 2024 00:00:00 GMT
DOI: 10.1093/yel/yead014
Issue No: Vol. 42 (2024)
-
- Unravelling horizontal direct effect in EU law: the case of the
fundamental right to paid annual leave between ‘myth’ and
‘practice’-
Free pre-print version: Loading...Rate this result: What is this?Please help us test our new pre-print finding feature by giving the pre-print link a rating.
A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Pages: 42 - 83
Abstract: AbstractIt is rather trendy to talk about the ‘horizontal effect’ of fundamental rights in a society where the dividing line between public and private power is increasingly blurred. However, as soon as one tries to define the exact meaning of horizontal effect and its conditions, several issues swiftly arise. This article explores the past, the present, and the future of the horizontal direct effect in the European Union (EU) legal order, by focusing on the application of this doctrine to the fundamental labour rights today protected in the Charter of fundamental rights. Most notably, with the approaching of the fifth birthday of Bauer and Max-Planck, by looking at the case of the fundamental right to paid annual leave under Article 31(2) of the Charter, this article aims at unravelling the actual meaning of the conditions for the horizontal direct effect of the EU fundamental rights and the actual perimeter of this direct effect. Although the effectiveness of minimum labour rights mandatorily enhanced by this case law should be welcomed, it is argued that the doctrine of the horizontal direct effect of EU fundamental rights seems still stuck between being a proper constitutional doctrine and a mere type of direct effect. It is also claimed, first, that horizontal direct effect is not a unitary phenomenon in EU law. In spite of the continuity in the ECJ’s technical reasoning, there is indeed a striking contrast between the language of ‘perfect equalisation’ of the Charter to the treaties and its actual approach to the assessment of the horizontal direct effect of fundamental (labour) rights. The ECJ’s case law analysis on the fundamental right to paid annual leave will prove this point. Secondly, it is suggested that horizontal direct effect can be defined as a sui generis, on-call, subsidiary, corollary, and ‘amputee’ doctrine, and we will offer some considerations on each of these features by reference to the Court’s practice under investigation. Thirdly, we suggest that the horizontal direct effect of fundamental (labour) rights relies more on the history and trajectory of the EU regulation of that specific right in the EU legal order rather than on the wording of the Charter’s provision or other technicalities.
PubDate: Fri, 22 Dec 2023 00:00:00 GMT
DOI: 10.1093/yel/yead012
Issue No: Vol. 42 (2023)
-
- The European Union’s Preferential Trade Agreements: between
convergence and differentiation-
Free pre-print version: Loading...Rate this result: What is this?Please help us test our new pre-print finding feature by giving the pre-print link a rating.
A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Pages: 102 - 134
Abstract: AbstractGone are the days when tariff liberalization was the centre of the European Union’s Preferential Trade Agreements (EU PTAs). Instead, the current generation of EU PTAs manages trade from a regulatory perspective: they establish rules that apply to domestic measures. Significantly, EU PTAs deploy international standards rather than EU law to regulate trade, directly influencing the speed of regulatory convergence with its treaty partners. Though EU PTAs aim to boost trade through regulatory convergence, they also consider the specific conditions of the EU’s treaty partner. This article analyses this regulatory turn in the EU’s PTAs, its practice and its consequences regarding trade and sustainable development.
PubDate: Wed, 06 Sep 2023 00:00:00 GMT
DOI: 10.1093/yel/yead003
Issue No: Vol. 42 (2023)
-
- The unified patent court
-
Free pre-print version: Loading...Rate this result: What is this?Please help us test our new pre-print finding feature by giving the pre-print link a rating.
A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Pages: 135 - 168
Abstract: AbstractOn 1 June 2023, the Unified Patent Court (UPC) for the settlement of disputes relating to European patents and European patents with unitary effect opened its doors as a common court of those European Union (EU) Member States that, in 2012, had joined in an enhanced cooperation in the area of unitary patent protection, and then, in 2013, entered into an ‘Agreement on a Unified Patent Court’ (UPCA) that complements their cooperation and expands it to non-unitary European patents. Although the Court’s jurisdiction is strictly limited to the two main forms of actions that may be brought in the special field of patent protection—infringement and revocation—its establishment deserves an analytical evaluation from the perspective of general European Union law because it is the first time that Member States create a common court aside of the EU’s judicial system not only for the settlement of disputes arising under their own—national or internationally uniform—legal regimes, but also for a legal regime of Union law, the unitary protection of patents. In this regard, it is not so much the sheer size of the new court that attracts attention or the economic importance of the subject matter that comes under its exclusive jurisdiction, but the many fundamental issues and controversies that accompanied its creation and that are still extensively discussed in literature. Leaving aside doctrinal problems of a proper qualification of the UPC as a common court of Member States, the main concerns relate to (i) the need for and the risks of the (over-)specialization of the UPC as a technical expert court; (ii) the legitimacy and democratic deficits of the UPC as a jurisdiction the rules and operation of which are essentially determined through self-regulation by the patent law community; (iii) the difficulties of properly qualifying the nature of the rules of substantive law of both the EU’s Regulation on unitary patent protection and of the UPCA, the ambivalence of which seemingly allowing much room for interpretation and for curtailing the reach and primacy of Union law; (iv) the related problems of adequately defining the relationship between the UPC and the Court of Justice of the EU as regards safeguarding the autonomous and uniform interpretation of Union law; and (v), more generally, the structural imbalances within the EU’s judicial system that may result from the establishment of common courts of Member States the jurisdiction of which covers the very substance of a legal regime of the Union.
PubDate: Sat, 11 Nov 2023 00:00:00 GMT
DOI: 10.1093/yel/yead007
Issue No: Vol. 42 (2023)
-
- EU financial market regulation a decade from the financial-crisis-era
reforms: crisis, uncertainty, and capacity-
Free pre-print version: Loading...Rate this result: What is this?Please help us test our new pre-print finding feature by giving the pre-print link a rating.
A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Pages: 169 - 209
Abstract: AbstractThis article reflects on the effectiveness of European Union (EU) financial market regulation, a decade or so after the closure of the EU’s massive financial-crisis-era reform programme. To do so, it considers the first significant test of the financial-crisis-era reforms: the March 2020 period of acutely elevated financial stability risk as the COVID-19 pandemic intensified, global markets roiled, and the investment fund sector experienced large-scale disruption. It relates the EU’s broadly successful management of this period to, first, the resilience of the legislative choices made and refined over the financial crisis era as regards investment fund regulation and, secondly, to technocratic action, by the European Securities and Markets Authority (ESMA) and the European Systemic Risk Board (ESRB), that facilitated rule amplification, risk monitoring, supervisory coordination, and supervisory convergence and thereby supported the earlier legislative choices. Drawing on the March 2020 experience, the article goes on to consider the capacity of EU financial market regulation more generally to manage what are increasingly dynamic risks to financial market stability. It identifies a strengthening of the EU’s capacity in this regard, but also persistent and intractable risks to this capacity, including as regards legitimation.
PubDate: Tue, 21 Nov 2023 00:00:00 GMT
DOI: 10.1093/yel/yead008
Issue No: Vol. 42 (2023)
-
- European Company Law in transformation—Striving for participation
and sustainability-
Free pre-print version: Loading...Rate this result: What is this?Please help us test our new pre-print finding feature by giving the pre-print link a rating.
A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Pages: 210 - 231
Abstract: AbstractEuropean Company Law, a European Union (EU)-level company law (as ‘federal policy’), has passed the 50-year mark these years. Twenty-five of those years were dominated by a market function approach, the ‘black-box’ approach, where the company was seen from outside and guaranteeing necessary information for those outside the corporation, rational information users (namely long-term creditors and investors), was paramount. A transformation away from this approach began some 30 years ago; the last 20 years were dominated, first, by an approach that strongly increased participation and true multiple ‘voices’ in companies—as an approach meant to empower and heat up discussion, it can be termed the ‘red-box’ approach. This is an approach where more structural information and empowerment took place, and relations within the company were more in the focus of the legislature as well. The advent of new economic sociology could also be sensed, as the EU became more of a political Union or the concept of a competition of legislatures became a potential reality, such as with Centros. As a common denominator, the ‘wisdom of the crowds’ would seem to be more in the focus. The second phase of these last 20 years, primarily in the last decade, was then dominated by a fixing of certain long-term goals from the outside, fostering a goal of sustainability. Again, important general trends of theoretical thought emerged, and this phase can therefore be seen as a ‘green-box’ approach. A framework constitution of values is the aim of such an approach. This article brings together EU company law as a federal task and the development of these three phases, including the history of thought and political developments, as well as their theoretical and political underpinning. The article does this mainly for development at the EU level (ius communitatis), but also provides a link to (comparative) national developments and inspiration (ius commune).
PubDate: Fri, 23 Jun 2023 00:00:00 GMT
DOI: 10.1093/yel/yead002
Issue No: Vol. 42 (2023)
-
- Corporate tax reform in the European Union: are the stars finally
aligned'-
Free pre-print version: Loading...Rate this result: What is this?Please help us test our new pre-print finding feature by giving the pre-print link a rating.
A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Pages: 232 - 261
Abstract: AbstractAre the stars finally aligned as far as corporate tax reform in the European Union (EU) is concerned' Tax reform in the EU has always been a contentious issue, as taxation was always considered one of the last bastions of national sovereignty. This article examines whether this is still the case or whether, in light of recent initiatives and proposals in this area, conditions are now ripe for comprehensive reform. The article begins by reviewing the historical trajectory of EU corporate tax law. It is shown that whilst early harmonization proposals were very ambitious, the overall constitutional set-up and the fiscal veto were not conducive to comprehensive reform. What followed these early initiatives was an era of pragmatism and slow progress, which, nevertheless, laid the foundations for important developments. Apart from the ad hoc legislative tax instruments that were agreed upon in the last 30 years to further the internal market and remove obstacles to cross-border movement, this article focused on the Commission’s ongoing work on a common tax base and consolidation, as well as other recent legislative initiatives such as the now enacted Directive on a Minimum Effective Tax Rate and the Unshell proposal. In light of these crucial developments, with all their strengths and weaknesses, it is argued that what was once considered as far too ambitious a proposal indicative of a federal Europe, now has high chances of materializing in the context of the BEFIT initiative (Business in Europe: Framework for Income Taxation). This is to be welcomed, as it is the next organic step to take in the process of EU integration. Whilst the stars may not yet be fully aligned, it is argued that what is needed at this point in time, is a change of mindset and a realization that Member States’ tax sovereignty has long been eroded.
PubDate: Fri, 29 Sep 2023 00:00:00 GMT
DOI: 10.1093/yel/yead006
Issue No: Vol. 42 (2023)
-
- Tax competition and state aid
-
Free pre-print version: Loading...Rate this result: What is this?Please help us test our new pre-print finding feature by giving the pre-print link a rating.
A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Pages: 262 - 285
Abstract: AbstractAt the inception of a new and potentially transformative type of tax enforcement, this article reviews the goals underlying the prohibition on state aid, and, in particular, whether those goals properly encompass limitations on tax competition. To explore this question, this article examines treaty text and structure, doctrine, and policy arguments for and against using state aid to curb tax competition. It concludes that the European Commission’s expansion of state-aid doctrine to limit tax competition improperly constrains Member State tax autonomy, arrogates tax policy power to the unelected Commission, and increases legal uncertainty. This article urges the Court of Justice of the European Union to clarify that preventing tax competition is not an independent goal of state-aid enforcement, although limits on tax competition may arise instrumentally via a free-trade interpretation of the prohibition of state aid.
PubDate: Wed, 14 Jun 2023 00:00:00 GMT
DOI: 10.1093/yel/yead001
Issue No: Vol. 42 (2023)
-
- Taking aim at innovation-crushing mergers: a killer instinct
unleashed'-
Free pre-print version: Loading...Rate this result: What is this?Please help us test our new pre-print finding feature by giving the pre-print link a rating.
A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Pages: 286 - 321
Abstract: AbstractThe European Union (EU) has assigned competition policy an important role as part of an extensive new agenda to stimulate innovation, including by fostering the growth of small and medium-sized enterprises (SMEs). The ability of EU merger control to be receptive and responsive to innovation harms has therefore come under scrutiny, with some observers doubting its capacity to address innovation-crushing ‘killer acquisitions’ of innovative SMEs. This article reflects on several recent developments that have shaped the EU’s response to these doubts. Substantively, the more central role afforded to innovation considerations in the European Commission’s recent enforcement practice may well demonstrate its willingness to engage with innovation theories of harm in mainstream merger control going forward, although questions remain about the standards and methodology it can adopt under the EU Merger Regulation (EUMR). Jurisdictionally, the recalibrated approach to the Article 22 EUMR referral mechanism—assisted, in certain circumstances, by the new pre-merger information obligation for digital gatekeepers under Article 14 DMA—is capable of bringing an almost boundless range of cases before the Commission. The Towercast judgment casts the net further still, by confirming the potential for below-threshold mergers to face ex post reviews at the national level under the Article 102 TFEU abuse of dominance prohibition. The effect of these developments is that the Commission and national competition authorities may now be better equipped to unleash a killer instinct when faced with innovation concerns arising from killer acquisitions. However, an unwelcome pendulum swing towards over-enforcement risks untold harm to legal certainty, merger activity, and innovation itself.
PubDate: Tue, 28 Nov 2023 00:00:00 GMT
DOI: 10.1093/yel/yead013
Issue No: Vol. 42 (2023)
-
- Global value chains in EU law
-
Free pre-print version: Loading...Rate this result: What is this?Please help us test our new pre-print finding feature by giving the pre-print link a rating.
A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Pages: 322 - 346
Abstract: AbstractThere is a burgeoning legal literature about the legal underpinnings of global value chains (GVCs). This article contributes to this literature through the lens of European Union (EU) law and proposes a different conceptual way to read GVCs legally. To that end, the contribution proposes understanding the evolving EU law on GVCs as a process of institutionalization leading to at least three legal forms. In EU company law, GVCs manifest actor-centrically as corporate obligations to govern the value chain. This mostly happens in the policies related to sustainability, but also features in some digitalization policies. In EU consumer law, the value chain appears as a collective network of actors that also bears collective responsibility towards the consumer for the production process. Moreover, in EU market practices and trade law, the value chain is approached in a de-personified manner by, on the one hand, targeting products relating to the territory (import/internal market access) and, on the other hand, trading practices in relations characterised by power asymmetry. These findings suggests that, rather than identifying a uniform legal concept of GVCs in EU law, a fragmented picture emerges in which different sub-areas of EU law develop different, partly even opposing, legal understandings of GVCs.
PubDate: Fri, 15 Dec 2023 00:00:00 GMT
DOI: 10.1093/yel/yead010
Issue No: Vol. 42 (2023)
-
- Rescuing transparency in the digital economy: in search of a common notion
in EU consumer and data protection law-
Free pre-print version: Loading...Rate this result: What is this?Please help us test our new pre-print finding feature by giving the pre-print link a rating.
A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Pages: 347 - 387
Abstract: AbstractTransparency remains a contested concept in European Union (EU) law and policy. All the main instruments of EU consumer and data protection law require that consumers be given access to and understand certain information about their relationships with traders. Improved transparency is also proposed as a response to a variety of problems associated with digital markets, including those experienced by consumers and data subjects. At the same time, transparency is increasingly challenged as ineffective and potentially even counterproductive from doctrinal and critical scholarship alike. First, transparency is seen as inherently unable to transform the economic reality on the ground and to address the power imbalances between consumers and traders. Secondly, it is argued that acts of representation involved in transparency suffer from complexity and are prone to exploitation by the actors who engage in it. This, in turn, casts doubt on the ability of transparency to steer the behaviour of businesses and transform markets to the benefit of consumers and society. This article builds upon prior critiques of transparency and connects them with a doctrinal analysis of EU consumer and data protection law and in particular the Unfair Contract Terms Directive, the Unfair Commercial Practices Directive, and the General Data Protection Regulation. Seven different notions of transparency are identified: (i) Transparency as access to the medium over time; (ii) Transparency as presentation of information that facilitates understanding; (iii) Transparency as formulations that facilitate understanding; (iv) Transparency as non-ambiguity and logical intelligibility; (v) Transparency as the absence of deception and confusion; (vi) Transparency as completeness and specificity; and (vii) Transparency as non-arbitrariness. The article submits that the acts of representation involved in transparency are already recognized in the three legal regimes and attempts are made to leverage the mediated nature of transparency to consumers’ advantage. Crucially, existing efforts to regulate mediation and improve its quality can, nowadays, be reinforced with the help of algorithmic systems geared toward supporting consumers. Moreover, some of the deployments of transparency identified—most notably transparency as non-arbitrariness—push its outer conceptual boundaries in ways that bring transparency very close to fairness. The article ultimately questions a vision of transparency as a necessarily softer-touch protective frame, which cannot alter business conduct. The conceptual richness of transparency offers opportunities for its deployment in more disruptive ways.
PubDate: Wed, 27 Sep 2023 00:00:00 GMT
DOI: 10.1093/yel/yead005
Issue No: Vol. 42 (2023)
-
- The impact of the Digital Content Directive on online platforms’
Terms of Service-
Free pre-print version: Loading...Rate this result: What is this?Please help us test our new pre-print finding feature by giving the pre-print link a rating.
A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Pages: 388 - 406
Abstract: AbstractThe Digital Content Directive 2019/770 (the DCD), aiming to foster the Digital Single Market and improve consumer protection, became applicable on 1 January 2022. This article presents the results of the study of 100 Terms of Service (ToS) of online platforms, conducted to evaluate the Directive’s impact. By combining black letter analysis with qualitative and quantitative empirical research, the contribution sheds new light on the Directive’s assumptions, critically assesses its logic, and makes regulatory suggestions for European lawmakers. Our central finding is that a significant number of the studied contracts (28 per cent) do not contain descriptions of the digital content offered. Many of those that do, keep the descriptions extremely vague. Hence, the central institution of the Directive—conformity with the contract—might be less valuable than the lawmakers have assumed. Even though the DCD introduces the concept of ‘objective’ conformity, we show how, in the digital environment, it might lower legal certainty, defeating one of the purposes of the Directive. Moreover, we also demonstrate how the analysed ToS often fail to meet other requirements, such as the right to retrieve one’s content or the protection from unilateral content deletion. This begs the question about the regulatory approach, the efficacy of the chosen enforcement scheme and, more generally, the enforcement schemes used throughout the EU’s private law. To remedy these problems, we suggest engaging in more empirical research when designing future measures to protect consumers online and considering supplementing the existing enforcement schemes with administrative oversight like the one in the Digital Services Act.
PubDate: Mon, 11 Sep 2023 00:00:00 GMT
DOI: 10.1093/yel/yead004
Issue No: Vol. 42 (2023)
-
- Consumers and the green transition between saying and doing: promising
consumer empowerment while restricting consumers’ choices is dangerous-
Free pre-print version: Loading...Rate this result: What is this?Please help us test our new pre-print finding feature by giving the pre-print link a rating.
A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Pages: 407 - 427
Abstract: AbstractTo deliver the Green Transition, the European Commission is just asking consumers to make green choices when they want. At the same time, EU legislative measures force consumers to take responsibility by restricting their freedom of making environmentally unsustainable choices. This mismatch is undesirable. The article first shows the existence of this mismatch and then explains why it is undesirable. The mismatch is shown with a discourse analysis of the main Commission’s Communications concerning the Green Transition and a comparison with the related Directives and Regulations and their respective proposals for review. To investigate the negative consequences of this mismatch, the article identifies two mechanisms that reduce the effectiveness of the measures implementing the EU Green Deal because of the mismatch. The article concludes with the modest recommendation of a more transparent explanation of the role consumers have to play to achieve the Green Transition.
PubDate: Tue, 19 Dec 2023 00:00:00 GMT
DOI: 10.1093/yel/yead011
Issue No: Vol. 42 (2023)
-