JournalTOCs

Yearbook of European Law
Number of Followers: 21

Hybrid journal (It can contain Open Access articles)
ISSN (Print) 0263-3264 - ISSN (Online) 2045-0044
Published by Oxford University Press

[424 journals]

The Future of Europe after Brexit: Towards a Reform of the European Union
and its Euro Area
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  Authors: Calliess C.
  Pages: 3 - 55
  PubDate: Fri, 06 Aug 2021 00:00:00 GMT
  DOI: 10.1093/yel/yeaa014
  Issue No: Vol. 40 (2021)
The Liminal European: Subject to the EU Legal Order
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  Authors: de Witte F.
  Pages: 56 - 81
  Abstract: AbstractThis contribution suggests that recent changes to EU free movement law have led to the emergence of a new type of subject: the liminal European. This subject is deemed to deserve the protection of EU law, in terms of the rights of residence and equal treatment in the host state, only when she is economically productive and socially adaptive. These changes pose a fundamental challenge to the authority of the EU, whose legal order is premised on its ability to challenge domestic processes of subjugation, exclusion, and precarity, which it is now, instead, starting to perpetuate. Being European is increasingly a status that is deeply precarious and conditional: a transitory state that is bestowed on rather than inhabited by the European. This notion of liminality is not only a useful descriptive category with which to analyse recent changes in EU free movement law. It also comes with significant normative implications for the EU and its legal order.
  PubDate: Wed, 11 Aug 2021 00:00:00 GMT
  DOI: 10.1093/yel/yeab006
  Issue No: Vol. 40 (2021)
The Past and Future of the Right to Petition the European Parliament
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  Authors: Vogiatzis N.
  Pages: 82 - 110
  Abstract: AbstractThis article critically evaluates the right to petition the European Parliament, a right which has not managed, to date, to constitute a credible alternative for citizens’ participation in the EU. It argues that there are two main reasons for the shortcomings of this right. First, before Maastricht, the Petitions’ Committee suffered the consequences of a broader decline of parliamentary petitions within and beyond Europe. Second, after Maastricht and Lisbon, the petition right was affected by the (partly complementary and partly divergent) rights to complain to the European Ombudsman and to sign or support a European citizens’ initiative. In addition, and possibly as a consequence of the above reasons, throughout its life, the petition right and the Committee on Petitions more generally have not benefited from significant resources, while their visibility has been very limited. A comparative examination of the three rights (petitions, European Ombudsman, citizens’ initiative) in terms of access, scope, user-friendliness and outcome is undertaken. Looking at the future of the petition right, in an era marked by the resurgence of online petitions, the article argues that the Petitions’ Committee should strategically focus on areas which are not covered by the two aforementioned rights, namely the national level and broader policy choices in the EU, in order to maximize its input and relevancy within the EU’s decision-making world.
  PubDate: Mon, 15 Nov 2021 00:00:00 GMT
  DOI: 10.1093/yel/yeab009
  Issue No: Vol. 40 (2021)
‘Detailing’ EU Legislation through Implementing Acts
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  Authors: Englisch J.
  Pages: 111 - 145
  Abstract: The concept and scope of implementing powers under Article 291 (2) TFEU have been subject to debate ever since the Treaty of Lisbon entered into force, and even prior to this in the general context of constitutional reform of the European Union (EU). In particular, the relationship between implementing powers and delegated powers—the latter regulated in Article 290 TFEU—has given rise to controversy. Several of those delineation issues have been settled by two Grand Chamber judgments and a series of subsequent rulings handed down by the Court of Justice of the EU (CJEU). In particular, the CJEU has established that while categorically distinct, the substantive scope of both types of powers partially overlaps and that the Union legislator has certain discretion to choose between them where this is the case. However, several open issues remain, and new questions have been raised by the Court’s decisions. The case law is not sufficiently clear as to the areas with respect to which both instruments of delegation are at the disposal of the Union legislator, and where the latter is confined to authorize only one of them. Legal uncertainty also exists regarding the question which limits, if any, apply to the discretion of the legislator in making its choice in the areas where there is an overlap. Finally, how the new context of implementing powers under the Lisbon Treaty affects the institutional balance between the Court itself and the Commission as the typical delegate of those powers has as yet received little attention.
  PubDate: Mon, 25 Oct 2021 00:00:00 GMT
  DOI: 10.1093/yel/yeab007
  Issue No: Vol. 40 (2021)
Regulatory Agencies and Private Damages in the EU: Bridging the Gap
between Theory and Practice
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  Authors: Cherednychenko O.
  Pages: 146 - 171
  Abstract: AbstractRegulatory agencies have traditionally been concerned with deterring unlawful conduct in the public interest. This article explores the emerging role of agencies in securing compensation for individuals in mass damage situations resulting from violations of EU private law. It identifies three main models of the relationship between administrative enforcement and private law remedies, notably damages, within the agencies’ operation: (1) separation, (2) complementarity, and (3) integration. These models reflect elements of the current legislative and agency practices in a variety of jurisdictions across different areas of EU private law and provide an analytical framework for assessing such practices in terms of their potential to reconcile the pursuit of the public interest with a concern to ensure justice between private parties. The analysis points to the need to systematically rethink the prevailing regulatory theory concerning the tasks of regulatory agencies along the lines of a holistic approach to deterrence and compensation.
  PubDate: Mon, 13 Dec 2021 00:00:00 GMT
  DOI: 10.1093/yel/yeab013
  Issue No: Vol. 40 (2021)
The Private Administrative Law of Technical Standardization
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  Authors: Vallejo R.
  Pages: 172 - 229
  Abstract: AbstractThe nature and place of technical standards has remained an enigma for EU law and legal thought, despite their ubiquitous part and growing importance in market-building processes within and beyond Europe. The significance and intractability of this enigma has been heightened by the landmark Fra.bo (2012) and James Elliot (2016) judgments of the ECJ. These judgments have prompted contradictory positions regarding the publicity and justiciability of technical standards among European legal scholarship and even between the European Commission and the European Parliament. The enigma and these contradictory positions have recently reached the ECJ again through the Stichting Rookpreventie case currently under review by its Grand Chamber. Drawing upon a reconstructive analysis of these and other relevant legal sources concerning technical standardization in Europe, this paper surmounts these seeming contradictions by advancing a new account of these legal developments. Contrary to the mainstream positions nowadays in tension, the article argues that these judgments have reaffirmed the New Approach and the distinctive place of technical standardization organizations in the European legal order while avoiding dysfunctional modes of judicialization. It has done so by acknowledging the techno-political character of technical standards and aptly delineating institutional competences between the government and the judiciary throughout technical standardization processes. To guide future legal thinking and reasoning on these processes, the paper recasts these legal developments through the idea of a ‘private administrative law’ as signifying the way that EU Law has transformed the nature and place of technical standardization in the internal market and as an eventual means for the global reach of EU law.
  PubDate: Mon, 15 Nov 2021 00:00:00 GMT
  DOI: 10.1093/yel/yeab011
  Issue No: Vol. 40 (2021)
Access to the EU Courts in Environmental and Public Health Cases and the
Reform of the Aarhus Regulation: Systemic Vision, Pragmatism, and a Happy
Ending
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  Authors: Leonelli G.
  Pages: 230 - 264
  Abstract: AbstractAfter years of debate, the Aarhus Regulation has finally been reformed. This article focuses on the amendments to the scope of application of the Regulation’s internal review and access to justice provisions, and demonstrates that these are the most important changes introduced by the reform. Not only do these amendments mark an important development towards full compliance by the European Union (EU) with its obligations under the Aarhus Convention; they also fill a vacuum, and solve the main problem which lay at the heart of the EU system of access to justice in environmental public interest cases. First, the article explores the obstacles faced by different stakeholders seeking access to the EU Courts by reference to specific categories of EU environmental law and risk regulation acts. This provides a systemic overview of different problematic aspects associated with different scenarios, unpacking all relevant implications. Secondly, it embraces a pragmatic perspective and draws a clear distinction between challenges to legislative and regulatory acts. Against the backdrop of this examination, the article identifies the main problem of the EU system: the application of the ‘complete system of legal remedies’ rationale to the specific case of regulatory acts. Further, it highlights that there is no ‘interpretative’ way out of the TFEU conundrum. Thirdly, the article analyses the Commission’s disappointing proposal for a reform of the Aarhus Regulation and the final text of the 2021 amendments to the Regulation. The story has a (surprisingly) happy ending. The EU institutions have finally acknowledged the main problem in the system of access to the EU Courts in environmental matters, and recognized the need to solve it in the specific context of the Aarhus Regulation.
  PubDate: Thu, 23 Dec 2021 00:00:00 GMT
  DOI: 10.1093/yel/yeab010
  Issue No: Vol. 40 (2021)
Institutional Change in the Banking Union: The Case of the Single
Supervisory Mechanism
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  Authors: Schammo P.
  Pages: 265 - 309
  Abstract: AbstractThis article is about institutional change in the Banking Union. It has two related aims. The first is to engage with the law of the Single Supervisory Mechanism (SSM)—the first pillar of the Banking Union—and in this context to discuss tensions that have lately emerged between the case law of the Court of Justice of the European Union (CJEU) and that of the German Federal Constitutional Court. The second, but main, aim of this article is to put the law of the SSM as it was enacted in the SSM Regulation, and as it was interpreted by the CJEU and by the German court, in a broader perspective of institutional change. For this purpose, this article adopts an interdisciplinary approach that seeks insights on institutional change in the political science literature. In particular, the article seeks to shed light on the role played by courts. In short, it argues that whilst the SSM is a story of change following an exogenous shock (ie the sovereign debt crisis), it is also an account of change and contestation between courts made possible by the ambiguities and incompleteness of the SSM rules. It will show that the evolution of the SSM is by no means frictionless and that it is only by tracing change from the point of the enactment of the law to its interpretation by the courts that one gains a real appreciation of the dynamics and salience of change within the SSM.
  PubDate: Wed, 21 Apr 2021 00:00:00 GMT
  DOI: 10.1093/yel/yeab002
  Issue No: Vol. 40 (2021)
Challenges of Justice in the European Banking Union: Administrative
Integration and Mismatches in Jurisdiction
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  Authors: Simoncini M.
  Pages: 310 - 334
  PubDate: Tue, 20 Apr 2021 00:00:00 GMT
  DOI: 10.1093/yel/yeab001
  Issue No: Vol. 40 (2021)
Public International Law as a Refuge of (Euro-)Member States During the
Financial and Economic CrisisThe Case of the Intergovernmental Agreement
on the Transfer and Mutualisation of Contributions to the Single
Resolution Fund (IGA)
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  Authors: Weismann P.
  Pages: 335 - 373
  PubDate: Fri, 03 Sep 2021 00:00:00 GMT
  DOI: 10.1093/yel/yeab005
  Issue No: Vol. 40 (2021)
You Want It Extra CRISPERY' Legal Disruption through New Plant
Breeding Technologies in the EU
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  Authors: Purnhagen K.
  Pages: 374 - 397
  Abstract: AbstractI will illustrate how the ‘old’ European Union (EU) legal regime on genetically modified organisms (GMOs) is applied to regulate new plant breeding technologies (NPBT). I will discuss why and how this results in what elsewhere had been called ‘legal disruption’. Legal disruption will occur once legal rules which were initially confined to a specific identified issue start to be applied beyond their original target. Such legal disruption may be found in the example of NPBT interacting with the precautionary principle, the use of scientific evidence in preliminary ruling proceedings, and the enforcement of labelling and traceability requirements. In the case of NPBT, legal disruption took place because policy makers were unwilling to adopt legislation designed to meet the demands of the technology. Consequently, they shuffled the responsibility for regulatory decision to the Court of Justice of the EU (CJEU). The CJEU, in its current design, represents an ill-suited institution to decide on such complex technology questions. I will explain why. I will end with a plea for a regulation of NPBT, which likewise enables and protects, following the eight principles developed by Michéle Finck on the example of the governance of blockchain technology.
  PubDate: Mon, 25 Oct 2021 00:00:00 GMT
  DOI: 10.1093/yel/yeab003
  Issue No: Vol. 40 (2021)
Special, Personal and Broad Expression: Exploring Freedom of Expression
Norms under the General Data Protection Regulation
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  Authors: Erdos D.
  Pages: 398 - 430
  Abstract: AbstractThe interface between data protection and freedom of expression is increasingly crucial and the General Data Protection Regulation (GDPR) solidifies a bipartite or potentially even tripartite conceptualization of this relationship. Whilst the GDPR’s personal exemption can play some role in governing individual expression, it must be construed narrowly so as to only exclude innocuous publication that is not liable to infringe other’s fundamental rights. The special expression derogation remains central and encompasses not just journalism but also other forms of special expression (academic, artistic, literary) which, when published, are objectively orientated towards a collective public. Whilst Member States do retain considerable discretion given the wide diversity of national constitutional norms in this area, a strict balancing between fundamental rights should still be ensured. Freedom of expression is also distinctly furthered by, inter alia, self-expression on social networking sites and the facilitation of a range of expressive purposes by search engines. As shown in GC and Others v CNIL, the stricter reconciliation of rights here must retain a direct role for data protection’s core substance including its legal grounds and principles and is thereby substantially (albeit not completely) harmonized across the EU.
  PubDate: Tue, 11 May 2021 00:00:00 GMT
  DOI: 10.1093/yel/yeab004
  Issue No: Vol. 40 (2021)
Comparative Internal Market Law: The UK and the EU
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  Authors: Weatherill S.
  Pages: 431 - 474
  Abstract: AbstractThe United Kingdom Internal Market Act 2020 introduces a new field of enquiry for scholars. It allows reflection on the model of an internal market chosen by the United Kingdom to regulate relations between its four constituent elements now that, after Brexit, the authority of the EU’s common rules has come to an end. It allows comparison and contrasts between the UK’s chosen model and the longer established patterns of the EU internal market. It is an invitation to develop a comparative study of the law of internal markets.The overall structure of the UK internal market envisaged by the 2020 Act is readily compared to that which exists in the EU, but there are also points of contrast. The most significant is that the UK model is less tolerant of regulatory diversity among its constituent elements than applies under EU free movement law. The scope to justify rules that obstruct trade within the UK is less generous than in the EU, with the consequence that the UK’s internal market has a more deregulatory flavour than the EU’s. This model of limited availability to protect local regulatory autonomy over unrestricted intra-UK trade pays little regard to sensitivities in Scotland and Wales, while the position of Northern Ireland, locked into the Protocol attached to the EU–UK Withdrawal Agreement, is different but also fragile. Internal markets possess economic motivations and they are built on legal rules, but they involve political choices and they have political implications. The UK Internal Market Act presents challenges to the stability of the United Kingdom itself.Accordingly the ambition of this paper is to explain the shape of the UK internal market and to compare and contrast it with the EU’s internal market. It also aims to demonstrate the political sensitivity of the choices that need to be made in designing an internal market against the background competing tensions of unhindered market access, on the one hand, and, on the other, respect for the regulatory autonomy enjoyed by the constituent units.
  PubDate: Mon, 25 Oct 2021 00:00:00 GMT
  DOI: 10.1093/yel/yeab008
  Issue No: Vol. 40 (2021)
Trust Thy Neighbour' Compliance and Proximity to the EU through the
Lens of Extradition
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  Authors: Mancano L.
  Pages: 475 - 514
  Abstract: AbstractThe principle of mutual trust between Member States is key to the functioning of European Union (EU) law. Rooted in sincere cooperation and equality of the Union’s States, that principle is premised on compliance with shared values, interests, and rules. This fosters close cooperation in many areas, such as law enforcement, as exemplified by the European Arrest Warrant Framework Decision (EAW FD). Outside the Union, the presumption is that the principle of mutual trust does not apply. This seems confirmed by the case law on the extradition of EU citizens, with the EU Court of Justice (ECJ) prioritizing intra-EU cooperation over forced transfer of Union nationals to the requesting third countries. As the EU has developed a sophisticated network of relationships with its partners, and neighbours especially, the question arises as to when, if at all, third countries can be trusted, and when that trust can be challenged. By using the benchmark of EU membership as the standard of legal proximity, this article analyses the EU’s relationship with some of its neighbours in cases of extradition. The article creates an analytical framework to tackle unanswered questions around mutual trust and cooperation in criminal matters, and to read into the future of the legal relationship between the EU and some third countries.
  PubDate: Fri, 10 Dec 2021 00:00:00 GMT
  DOI: 10.1093/yel/yeab012
  Issue No: Vol. 40 (2021)
Erratum
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  Pages: 515 - 515
  Abstract: Raphaële Xenidis. Transforming EU Equality Law' On Disruptive Narratives and False Dichotomies. Yearbook of European Law, (2020), doi:10.1093/yel/yey005.
  PubDate: Sun, 14 Jun 2020 00:00:00 GMT
  DOI: 10.1093/yel/yeaa003
  Issue No: Vol. 40 (2020)