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.
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.
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.
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.
Authors:Moreiro González; Carlos J. Pages: 161 - 173 Abstract: This contribution analyses the current situation of the implementation of the Rule of Law in the EU focusing on three essential aspects: the role of Article 2 of the TEU as a legal paradigm, the issue of effectiveness of secondary law to strengthen Supranational mechanisms for the defense of the Rule of Law; and the thorny issue of the primacy of EU Law in the current Era of European Integration. PubDate: 2024-03-21 DOI: 10.1017/cel.2023.17
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Authors:O'Connor; Niall, Harvey, Darren Pages: 174 - 197 Abstract: A new legal order has arisen in the United Kingdom (‘UK’) following that country's withdrawal from the European Union (‘EU’). Nowhere are these changes more evident than in the complex rules that have emerged in the fields of freedom of movement and the right to work. In evaluating the new legal landscape, this Article has two overarching aims. The first is to assess the level of protection granted to the right to work and associated free movement rights within EU and UK law, including the terms of the EU-UK Withdrawal Agreement. The second aim is to examine the extent to which those right to work rules are reflective of the status of the right to work as a fundamental social right. It is argued that Brexit unmoors the right to work from EU free movement rules, thereby undermining the normative value of that right, while exacerbating flaws in domestic rules governing access to employment for both national and migrant workers. PubDate: 2024-01-04 DOI: 10.1017/cel.2023.10
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Authors:Hofer; Alexandra Pages: 19 - 39 Abstract: In response to Russia's aggression against Ukraine, the EU adopted a series of unprecedented ‘massive and targeted sanctions’ against the Russian economy. Whereas the EU has clarified that its restrictive measures are not directed against Russian society, it is has stated that it seeks to ‘diminish’ the Russia economy and ‘cripple’ its ability to finance the war. Such measures recall economic warfare, where the adversary's economy is targeted in order to weaken it and, if successful, would undoubtedly have an impact on Russian people. Moreover, the sanctions have had repercussions on third states and economic operators. Applying the proportionality principle, the article finds that the restrictive measures the EU has imposed on Russia in response to its aggressive war in Ukraine are disproportionate due to their impact on third parties. PubDate: 2023-12-11 DOI: 10.1017/cel.2023.9
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Authors:Lonardo; Luigi Pages: 40 - 63 Abstract: This Article deals with selected issues of judicial protection that arise in the context of the sanctions adopted by the EU against Russia and Belarus after the 2022 invasion of Ukraine. As most cases challenging the sanctions are pending, this Article draws lessons from the previous case law on EU restrictive measures. It explores what aspects of the sanctions escape judicial review, then profiles of external (or formal) legality of the sanctions, of internal (or substantive) legality, and concludes by assessing the overall role of the Court in EU foreign affairs. The discussion shows that the case law in this area of EU administrative law converges to a great extent with other areas of EU competence, but tensions remain in how the Court may impose substantial constraints to executive discretion in the field of Common Foreign and Security Policy. PubDate: 2023-12-20 DOI: 10.1017/cel.2023.11
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Authors:Szabados; Tamás Pages: 64 - 80 Abstract: The EU Blocking Regulation intends to exclude the effects of extraterritorial legislation by third countries and, in particular, those of US economic sanctions, to protect the interests of economic actors in the EU. The goals of the Regulation—effective enforcement of EU law and the protection of the interests of EU economic actors—give rise to an enforcement paradox: a lack of enforcement by the Commission and the state authorities. The Bank Melli case not only demonstrates a shift in the enforcement of the Blocking Regulation to private parties but also sheds light anew on the doubts about its ability to protect private interests. PubDate: 2023-12-19 DOI: 10.1017/cel.2023.14
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Authors:Andriychuk; Oles Pages: 81 - 104 Abstract: Competition policy in the EU and UK is in the process of a significant reconfiguration. Its key postulates, methodologies, and normative goals are being subject to intense discussion and revision. The emergence of sui generis ‘new competition tools’ in the area of digital markets—EU Digital Markets Act and UK Digital Markets, Competition and Consumers (bill)—epitomises this trend. The purpose of this Article is to attempt to provide legal theoretical foundations for the new subfield of competition law and policy by systematising and conceptualising these trends into the framework of socio-legal scholarship. PubDate: 2023-11-07 DOI: 10.1017/cel.2023.12
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Authors:Wurmnest; Wolfgang Pages: 105 - 121 Abstract: Assessing damages in follow-on actions against cartels that have infringed EU or domestic antitrust law is still in its infancy in Europe. This Article highlights the reasons why this issue has only recently started reaching the courts and analyses the pitfalls and problems courts face when calculating or estimating the amount of loss caused by a cartel to individual plaintiffs. As this endeavour raises complex economic questions, the Article outlines the basic economic approaches to measure antitrust harm and derives general principles from EU law on how courts should deal with economic evidence in follow-on actions to ensure an effective enforcement of competition law. PubDate: 2023-11-01 DOI: 10.1017/cel.2023.8
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Authors:Moussa; Mohamed Pages: 122 - 140 Abstract: Article 19 TFEU's unanimity requirement shares a striking similarity with a two-century old debate on voting and minority rights between the ‘father’ of the US Constitution, James Madison, and the ‘rebellious son’, John C. Calhoun. Madison made majority voting a necessary condition for impartial lawmaking and minority protection in multistate unions. Conversely, Calhoun sought to maintain the racial status quo through advocating for a competing unanimity-based structure. Minority protection in Article 19 TFEU aligns with Calhoun's model. This Article reassesses Article 19 TFEU through the foundational principles of constitutionalism underlying the US debate and shows their continued relevance for contemporary case law and minority protection in the EU. Particularly, it demonstrates, first, that Article 19 offends the impartiality principle of nemo judex in causa sua—no person should judge their own cause—which has long been a leitmotiv in Western constitutional theory. Second, it illustrates that unanimity causes de jure and de facto ramifications for ethnic and religious minorities in the EU. Last, the Article provides a theoretically grounded and comparatively informed argument to aid ongoing attempts for treaty amendment. PubDate: 2023-11-07 DOI: 10.1017/cel.2023.6
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Authors:Pivoda; Marek Pages: 141 - 160 Abstract: This Article interrogates the role of national constitutional courts within the Article 267 TFEU preliminary reference mechanism from both descriptive and normative angles. First, I demonstrate that although a clear majority of the constitutional courts submit references to the ECJ on a more frequent basis, differences in individual approaches remain significant. Subsequently, I argue that the core normative attractivity of the questions submitted in the course of domestic constitutional review lies in their participative and deliberative potential. Compared to ordinary courts, constitutional courts are better suited to amplify the ‘unheard’ voices of immobile EU citizens. By counterbalancing the demands of the EU's functional constitution, which is primarily based on the ideals of market capitalism, constitutional courts’ questions may contribute to the EU's capacity to generate legitimate decisions. Finally, I put my theoretical claims in context and analyse the main ways in which such deliberative potential can translate into practice. PubDate: 2023-12-20 DOI: 10.1017/cel.2023.15
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Authors:van Leeuwen; Barend Pages: 198 - 224 Abstract: This Article provides an empirical analysis of all free movement of doctors cases decided by the CJEU. The aim of the Article is twofold: to provide a ‘characterisation’ of the type of doctors who rely on free movement law, and to make a link between their reliance on free movement law and the concept of medical professionalism. In what circumstances, and with what purpose, do doctors rely on free movement law' And does their reliance on free movement law pose a risk to medical professionalism' The analysis shows that most cases before the CJEU focussed on the expertise and qualifications of doctors. Many cases were brought by groups of doctors or medical professional associations. In most cases, the aim of the doctor's reliance on free movement law was to defend medical professionalism. Nevertheless, some recent cases show that doctors do rely on free movement law to restrict their accountability towards patients or national healthcare systems. Moreover, these cases show that arguments based on free movement law are relied on in a broader range of non-specialised courts or tribunals. This makes it important that national courts continue to engage in a dialogue with the CJEU. PubDate: 2023-12-21 DOI: 10.1017/cel.2023.13
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Authors:Huhta; Kaisa Pages: 225 - 240 Abstract: This Article analyses the evolution of the public security defence to justify restrictions on free movement within the EU in the context of the energy sector. Taking the seminal 1984 Campus Oil case as the point of departure for its analysis, the Article focuses on the interplay between public security and energy security and shows two key changes in the case law of the Court of Justice of the European Union. First, it demonstrates how the scope of the public security defence in the energy sector has gradually narrowed. Second, it shows how the public security defence has developed to take into account evolving social, technological, and legal contexts in the EU energy sector. Culminating in cases like Hidroelectrica in 2020 and OPAL in 2021, analysis of the relevant case law suggests that, despite the societal dependence on energy and the ongoing geopolitical turmoil in Europe, the Court of Justice interprets exceptions from free movement in an increasingly strict manner, highlighting the primacy of internal market approaches to energy security. PubDate: 2023-08-29 DOI: 10.1017/cel.2023.5
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Authors:Tuominen; Tomi, Halonen, Kirsi-Maria, Salminen, Mirva Pages: 241 - 259 Abstract: Security of supply refers to governmental policies that aim to secure the availability of critical products at all times. The COVID-19 pandemic brought to fore the importance of such policies, as suddenly there was an overwhelming need for critical medical supplies that the markets were not able to fulfil. Following the pandemic, the EU has started to construct its own security of supply policy, although lacking an explicit competence for it. This Article shows how competence on security of supply is actually split between the EU and the Member States, and highlights the consequences of this division. PubDate: 2023-10-16 DOI: 10.1017/cel.2023.7
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