This article addresses the question of how the EU’s legal constraints can be overcome in the governance of Global Spaces. It shows, first, that EU law is part of a trend of including language... Show moreThis article addresses the question of how the EU’s legal constraints can be overcome in the governance of Global Spaces. It shows, first, that EU law is part of a trend of including language relating to Global Spaces in constitutional documents. The article subsequently highlights a tension specific to the EU as a non-state entity. While the EU Treaties enshrine grand foreign policy ambitions, which are impossible to achieve without a proactive role across the Global Spaces, EU law imposes several obstacles that complicate the pursuit of these ambitions. These concern particularly the need to base EU actions on powers conferred by the member states, the parallel international presence of the Union and the member states, and difficulties for the EU to join relevant international agreements and institutions. The article argues that through legal creativity, these constraints can be largely overcome, enabling the EU to pursue its ambitions nonetheless. Show less
The chapter focuses on the role of the European Union’s general principles of equal treatment in the field of non-discrimination law in the context of EU-Directives 2000/43 and 2000/78.
In the past years access to EU law has been significantly enhanced via services such as EUR-Lex. This development not only allows for easy retrieval of individual legal acts, but for collecting... Show moreIn the past years access to EU law has been significantly enhanced via services such as EUR-Lex. This development not only allows for easy retrieval of individual legal acts, but for collecting information about the evolution of EU law in the aggregate as well. This contribution argues that by charting and analysing the evolution of the body of EU law over time, we can understand better the nature and development of the EU as a political system. The text examines the legislative productivity of the EU over the past 15 years as an illustration. Further, it showcases recent examples of the use of novel data-analytic techniques to analyse the body of EU law for the purposes of understanding the EU legal system, the institutions, and the polity that produced the legal acts. The contribution concludes by arguing that it is important to transmit basic facts and insights about the evolution of EU law and law-making to the general public as well, in order to counter the threat of Euroscepticism and perceptions of democratic deficit in the EU. Show less
The primacy of EU law continues to be challenged by domestic courts relying on the notion of constitutional identity. These challenges are no longer limited to the Solange case law of the German Bu...Show moreThe primacy of EU law continues to be challenged by domestic courts relying on the notion of constitutional identity. These challenges are no longer limited to the Solange case law of the German Bundesverfassungsgericht (BVerfG) and the controlimiti doctrine of the Italian Corte Costituzionale. More recently, the Hungarian Constitutional Court introduced the notion of ‘historical constitutional identity’ – at a time when the rule of law and independence of the judiciary are in retreat in several parts of the EU. Against this backdrop, this article argues that the Court of Justice of the EU (CJEU) missed a formidable opportunity to clarify the outer limits of constitutional identity under Article 4(2) of the Treaty on European Union in Taricco II. Given prudential considerations as well as parallel legislative developments, it can be explained why the CJEU chose to side-step the issue. However, in the Corte Costituzionale, the CJEU found a cooperative and EU law friendly interlocutor which would have allowed it to clarify these limits on its own terms. The CJEU cannot and should not hide from this issue forever. The next domestic court to raise this issue may be less interested in judicial dialogue and more in undermining the primacy of EU law in ever more extensive ways. Show less
With the issuing of guidance documents the European Commission assists the Member States in the implementation of Union law. This thesis seeks to unravel the process of governance through guidance... Show moreWith the issuing of guidance documents the European Commission assists the Member States in the implementation of Union law. This thesis seeks to unravel the process of governance through guidance by tracing its role and legal implications in the Dutch legal order.The first part explores the use of guidance documents by Dutch authorities and courts. Along the lines of five types of guidance and four perspectives on their binding force, different roles of guidance are discerned. National courts act as counterbalancing or facilitating actors by reinforcing or downplaying the role of guidance documents in implementation processes.The second part assesses the implications in the light of legal principles. To this end, it formulates four ‘promises’, or ideal effects, that outline how the use of guidance documents could contribute to a predictable, consistent and transparent implementation process, whilst respecting the rule of EU hard law. The analysis finds that, in practice, these ‘promises of guidance’ are not always fulfilled: a gap between promise and practice exists.The findings thus show how the issuing and use of guidance risks to challenge the rule of law that is so fundamental to the EU legal order. This thesis therefore invites to rethink governance through guidance. Show less
When the EEA Agreement was concluded in the early 1990s, it reflected, in the fields covered, the state of the then Community law, also with respect to the free movement of persons. Since then,... Show moreWhen the EEA Agreement was concluded in the early 1990s, it reflected, in the fields covered, the state of the then Community law, also with respect to the free movement of persons. Since then, both EEA and EU law have developed further, though with certain marked differences. Notably, the EU Treaty revision of Maastricht led to the introduction of Union citizenship. The fact that there is no corresponding concept in the EEA Agreement had led to certain challenges within the EEA with respect to the free movement of persons, due notably to the double nature of Directive 2004/38 as a further development of the free movement law of the Communities and a Union citizenship instrument. Today, the EEA and the EU rules are identical with respect to the market access rights of economic agents. In contrast, it is debated whether and to what extent the incorporation of Directive 2004/38 into the EEA legal system is indeed limited for those purposes. This relates in particular to case law of the EFTA Court on persons who are not economically active, where the Court, in the EEA context, gives Directive 2004/38 a broader interpretation than the CJEU does in the EU context. The EFTA Court’s aim, despite the lack of Union citizenship in EEA law, is to arrive at the same level of protection. Commentators speak about a particular understanding of homogeneity and of the Polydor principle. This approach raises questions also with respect to the external relations of the EU with other non-Member States, including notably the United Kingdom of Great Britain and Northern Ireland following its withdrawal from EU membership (“Brexit”). Show less
The withdrawal of the United Kingdom from the European Union (Brexit) is not only a source of political and legal upheaval in Europe but will also prompt a recalibration of transatlantic treaty... Show moreThe withdrawal of the United Kingdom from the European Union (Brexit) is not only a source of political and legal upheaval in Europe but will also prompt a recalibration of transatlantic treaty relations. This Article argues that it is a gross oversimplification to conceive of the latter as sets of old and new bilateral relationships. Instead, Brexit affects many existing and interdependent triangular relationships that the United States maintains with the EU and its Member States, which are conditioned also by the foreign relations laws of these polities. Perhaps counterintuitively, recalibration in the “high politics” area of security and defense will be easier than in the “low politics” of trade and regulation. In elaborating on these arguments, this Article delves into three levels of complexity: First, the empirical challenge of determining the treaties in force between the EU and United States and by which the UK will cease to be covered; second, the transatlantic implications of available alternative models to EU membership for the UK; and third, the way forward in ensuring continuity and bringing about future agreements and cooperation in the EU-UK-U.S. triangle, seeing that the EU itself is a moving target due to ongoing reform efforts. Show less
This chapter takes a closer look at the productive partnership between the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) and asks whether the existing... Show moreThis chapter takes a closer look at the productive partnership between the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) and asks whether the existing legal framework guarantees the endurance of the cooperative dialogue between both courts. First, it summarizes the ground rules of their symbiosis, going over the status of the European Convention on Human Rights in EU law and the ECtHR’s recognition of the EU’s legal personality. Then, it briefly addresses the impact of the CJEU's Opinion 2/13 on the EU’s accession to the Convention before exploring, in section 3, the many forms that the judicial dialogue between the CJEU and the ECtHR has taken over the years and discussing the influence of the jurisprudence of one over the other. A final part asks whether it is possible to move beyond labels of comity and identify a legal duty for both courts to cooperate. Show less
This case note analyses the French Conseil constitutionnel's CETA decision of 31 July 2017 (ECLI:FR:CC:2017:2017.749.DC). The Conseil was the first national court to reach a substantive judgment on... Show moreThis case note analyses the French Conseil constitutionnel's CETA decision of 31 July 2017 (ECLI:FR:CC:2017:2017.749.DC). The Conseil was the first national court to reach a substantive judgment on whether CETA was compatible with an EU Member State’s constitution, concluding that there was nothing in CETA that was at odds with French constitutional law. Given that CETA will also be subject to ex ante review at the European Court of Justice requested by Belgium, the Conseil constitutionnel’s decision is another milestone in the judicial saga surrounding CETA, but not the end of the road. The note argues that the Conseil employed a dynamic and cooperative interpretation of sovereignty and showed a strong attitude of deference both to France’s political branches and to the EU in terms of international treaty-making. There are, however, some aspects where the decision would have benefited from greater clarity. Nonetheless, instead of undermining France’s constitutional order, the Conseil confirmed the fundamental commitment of France to European integration and international cooperation. More particularly, it refrained from unduly interfering with the ability of the EU and its Member States to continue operating as a collective international actor. Show less
The article elaborates on the significance of the duty of sincere cooperation as a legal principle in the Common Commercial Policy (CCP) of the European Union (EU), in particular as regards the... Show moreThe article elaborates on the significance of the duty of sincere cooperation as a legal principle in the Common Commercial Policy (CCP) of the European Union (EU), in particular as regards the relationship between the Union and its Member States. It argues that while the duty of sincere cooperation is a judicially enforceable duty vis-a-vis the Member States, it is losing some of its relevance in the context of the CCP. This is due to the fact that the Lisbon Treaty, as confirmed by the case law of the Court of Justice of the EU, expanded the scope of the CCP and clearly identifies it as an exclusive competence of the Union. Loyalty in the CCP, therefore, is mainly covered by the obligation to respect the exclusivity of the Union’s international powers in this area. While this does not equate to the disappearance of the Member States as actors in international economic governance, it does seriously constrain their leeway for autonomous action. In addition, the article applies this finding to a number of current developments surrounding the CCP. These include, firstly, the new Global Strategy for Foreign and Security Policy, which promotes the idea of a “joined-up” approach between different actors and policies; secondly, “Brexit” and the prospect of the United Kingdom negotiating new trade agreements of its own; thirdly, the position of the Member States in the WTO; and fourthly, the nature of the wave of new free trade agreements that the EU is negotiating and concluding. Show less
Die Schweiz und die Europäische Union (EU) verhandeln seit dem Frühling 2014 über ein institutionelles Abkommen“ zu wichtigen Teilen des bilateralen Rechts. Man spricht auch von den ... Show moreDie Schweiz und die Europäische Union (EU) verhandeln seit dem Frühling 2014 über ein institutionelles Abkommen“ zu wichtigen Teilen des bilateralen Rechts. Man spricht auch von den „institutionellen Fragen“, einem „institutionellen Rahmenabkommen“ und neuerdings – seit dem Juni 2017 – einem „Konsolidierungsabkommen“. Das Thema erscheint regelmässig in den Medien und ist z.T. stark umstritten. Dementsprechend unterschiedlich wird die Sachlage dargestellt – mit der Folge, dass unklar bleibt, worum es denn eigentlich genau geht. Das vorliegende Brevier versucht, wichtige, immer wiederkehrende Diskussionspunkte zu klären und so zum besseren Verständnis der komplexen Thematik beizutragen. Show less
Taking Technological Infrastructure Seriously attempts to take stock of a sea-change in the way modern infrastructural resources are provided. Unlike traditional infrastructure, such as roads and... Show moreTaking Technological Infrastructure Seriously attempts to take stock of a sea-change in the way modern infrastructural resources are provided. Unlike traditional infrastructure, such as roads and electricity cables, where the State has largely been responsible for its provision, much of the key technological infrastructures which underwrite modern society are privately provided by companies which own exclusive intellectual property rights over them. These modern infrastructures include computer operating systems, as well as crucial low-level interoperability information such as technical standards. This thesis argues that exclusive intellectual property rights are fundamentally at odds with the infrastructural nature of these technologies, which like all infrastructure, favours broad availability and open access over exclusive control. While both industry and the Courts have been converging upon open access management regimes for technological infrastructure, the economic rationale has sometimes been weak and underdeveloped. This thesis attempts to fill this gap by developing an ‘infrastructural approach’ to such resources, and showing how it may be applied under different institutional conditions, such as EU competition law, R&D subsidy grants, public procurement and business model innovation. Show less
This chapter describes the nature of EU law as well as the ways in which several unique characteristics of EU law were vital for effective EU integration. This supports a comparative analysis of... Show moreThis chapter describes the nature of EU law as well as the ways in which several unique characteristics of EU law were vital for effective EU integration. This supports a comparative analysis of EAC law, and discusses the question if other forms of regional integration need similar doctrines to be effective. Show less
This chapter discusses the external dimension of the EU, including its gradual evolution over time and the legal doctrinese developed by the CJEU to gradually develop a more extensive external... Show moreThis chapter discusses the external dimension of the EU, including its gradual evolution over time and the legal doctrinese developed by the CJEU to gradually develop a more extensive external competence Show less
Ugirashebuja, E.; Ruhangisa, J.E.; Ottervanger, T.R.; Cuyvers, A. 2017
The EastAfrican Community (EAC) is a regional intergovernmental and supranationalorganizationcurrently comprising the Republics of Burundi, Kenya,Rwanda,South Sudan, the United Republic of Tanzania... Show moreThe EastAfrican Community (EAC) is a regional intergovernmental and supranationalorganizationcurrently comprising the Republics of Burundi, Kenya,Rwanda,South Sudan, the United Republic of Tanzania, and the Republic ofUganda.Established in 2000, the EAC aims at widening and deepening cooperationamong itsPartner States in, among others, political, economic andsocialfields.Theorganization has established a Customs Union (2005) and a CommonMarket(2010), and is in the process of establishing a Monetary Union. Itsultimateobjective is to establish a complete political (con)federation. Itemphasizesstrong participation of the private sector and civil society. Theaccomplishmentof these objectives requires an elaborate and functionallypurposedinstitutionalframework.The EACaims at far deeper integration than envisioned by its predecessor,whilstsimultaneously avoiding the mistakes that led to the failure of previousattempts atEast African integration. Important safeguards include a gradualapproach tointegration and guarantees to ensure an equitable division of thebenefits ofintegration.There is ageneral consensus that the European Union (EU) was an importantsource ofinspiration and provided a normative model for the EAC. Indeedthe EACTreaty and the Protocols have adopted and adapted significant partsof the EU’sinstitutional and legal framework. The normative appeal of the EUin thisregard can also be readily understood. Despite all the past and presentfailuresand challenges facing the EU, no objective observer can deny the benefitsof Europeanintegration in terms of peace, stability and prosperity. Whatstarted 60years ago as a Community between six Member States in a Europedestroyedby two world wars has now developed into the most peaceful andprosperousblock in the world.Consequently,there are lessons to be learned from the European experience,includingthe crucial role of the law and of lawyers in the process of integration,be theyjudges, lawmakers, civil servants, academics or practitioners.The law isone of the most powerful and indispensable instruments to achievetrueintegration, as effective integration requires some form of supranationallegalsystem. That is what we mean by “Integration through law”. Awareness ofthepossibilities the law offers, therefore, is extremely important for any formof regionalintegration. The mainchallenges facing the EAC today in this regard are how to safeguardthe qualityof the increasing body of Community law, how to monitor compliance,and how tomake EAC law binding and enforceable within national legalsystems.All of these are challenges that the EU has faced in the past and isstillfacing, and where both the success and the failures of the EU may be ofcomparativeuse to the EAC, certainly considering the many similarities in theinstitutionaland legal framework of both and the similarities of the challengesfaced. The mainpurpose of this book, initiated by the Leiden Centre for theComparativeStudy of EAC law (LEAC) in close cooperation with Hon. JusticeDrUgirashebuja, the current President of the East African Court of Justice, isto be asource of information and education for all those involved in shaping,improvingand studying integration in the EAC. By comparing each aspect ofbothinstitutional and substantive EAC law with its nearest counterpart EU law,we hope tohave created a vital tool to better understand and move forward theintegrationprocess in East Africa. Consideringthese aims, we are proud that, thanks to the generous support ofthe lawfirm Allen & Overy LLP, the European Union and the Europa Instituteof theUniversity of Leiden, this book will not just be available in printed formbut willalso be freely available online via a completely Open Access agreementwith BrillPublishers. Show less
This chapter discusses the gradual development of general principles in EU law, including fundamental rights, and the central role they played in the evolution of EU law. This provides a basis for... Show moreThis chapter discusses the gradual development of general principles in EU law, including fundamental rights, and the central role they played in the evolution of EU law. This provides a basis for the discussion of possible future evolutions of general principles in EAC law. Show less
