This article examines the relationship between the EU and the Council of Europe’s Social Charter. It considers the differing approaches to the protection of economic and social rights and the relationship between the two legal orders. It further examines whether the EU should consider acceding to the European Social Charter so as to ensure the effective protection of economic and social rights.

A purist might say that the judicial architecture of what is now the European Union was first altered by the 1957 Convention on Certain Institutions Common to the European Communities. That Convention set up a single Court of Justice with jurisdiction under the three Community Treaties which had by then been signed. However, the 1957 Convention should probably be regarded as the last brick in the original edifice, which was to remain unchanged for nearly 30 years. Although the Court started to express concern about its capacity to cope with its workload in the 1970s, the Member States did not respond until 1986, when provision for a court of first instance was made in the Single European Act. That reform marked the beginning of a period of rapid change in the judicial architecture of the Union.

The draft treaty agreed at the Nice Intergovernmental Conference (“IGC”) has had a very mixed press throughout the European Union, even if not all of the criticisms have been entirely justified. Its rejection by voters in the Irish Republic in the referendum on 7 June 2001 appears, according to most commentators, to have been motivated by a wide range of concerns, only some of which relate directly to what was actually agreed at Nice. Whilst this rejection has certainly added to the impression that the Nice Treaty itself is inherently flawed, there are however some aspects of the Treaty of Nice which are undoubtedly very positive, and which should be relatively uncontroversial, even to those most sensitive to the development of the Union. Not the least of these are the provisions that will create the possibility of far-reaching improvements to the present system of Community courts in Luxembourg, and to the Court of First Instance of the European Communities (“CFI”) in particular.

This chapter examines whether the EU has duly implemented its obligations regarding access to justice in environmental matters. On the one hand, EU courts remain hardly accessible to individuals seeking to challenge acts harmful to human health and the environment adopted by the EU institutions. In this regard, the Lisbon amendment of the standing requirements for non-privileged applicants has not radically changed the situation. In the light of recent decisions of the General Court, it appears that the latter has as yet resorted to a restrictive interpretation of the new prerequisites laid down in Article 263(4) TFEU. On the other hand, the internal review mechanism of EU environmental measures as provided for under secondary law does not live up to its objective of enhancing legal protection. In addition to the limited scope thereof, the EU institutions have shown much reluctance to be challenged. Therefore, it may be concluded that EU citizens are not provided with effective remedies. This represents a significant issue given the essential enforcement deficit of environment law. Arguably the EU legal system scarcely complies with the letter and the spirit of the Århus Convention with respect to access to justice.

Cases involving the posting of workers will inevitably involve international elements and therefore issues of private international law. Historically, it has been assumed that English employment law is territorial: in particular section 204 of the Employment Rights Act 1996 provides that the provisions of the Act apply irrespective of the law applicable to the contract. This contribution examines this proposition through the perspective of private international law principles, and also considers the compatibility of section 204 with the private international law rules in the Posted Workers Directive and the new definition of overriding mandatory rules in the Rome I Regulation.

The impetus for this chapter is the extraordinary difficulties surrounding the adoption of the Lisbon Treaty. It aims to provide a framework within which to explore trust in EU law. The question of trust has become even more significant since the adoption of the Lisbon Treaty with the emergence of the fiscal crisis in Greece and in the wider eurozone. This chapter initially seeks to locate the question of trust within the much-discussed notion of the democratic deficit in the EU, drawing on the work of Snell. It argues that the question of democratic deficit raises questions about trust in the EU, and that institutionalised distrust is what is required in order to secure appropriate trust in EU law and governance. It then examines the nature of trust before turning to two major crises of distrust in the EU: the Irish referenda on the Lisbon Treaty and the ongoing difficulties presented to the eurozone of the indebtedness of some of its members.

In this article, we challenge that assumption that the Court of Justice of the European Union does not need to accommodate dissenting opinions because the necessary arguments and policy perspectives can be outlined in the AG’s Opinion. We examine the greater legitimacy that may be gained from permitting dissenting and concurring opinions in cases which involve the determination of fundamental rights before the Court. We ultimately argue that our discussion on the quality of judgments is closely related to a discussion on the selection process and criteria for membership of the Court. In the current context, however, the AG’s Opinions continue to provide a more robust field for articulating national and European norms and a larger space for interpretive innovation than the Court’s ordinary forum.

Sweden is well known as a high tax society and it is also well known for its spending on welfare. Just over 50 percent of GDP is consumed by taxation. This is an enormous amount of money. How is it possible to avoid strong conflicts between the citizen and the state? Must not this huge appetite for funding tempt the democratic state to pass the borderline and become almost a despotic state? How are human rights protected?

In the course of attempts by the Thatcher administration to restrain the publication of Spycatcher, the memoirs of a former member of the security and intelligence services, the United Kingdom’s most senior civil servant, the Cabinet Secretary, was subjected to several days of intense cross-examination before Justice Powell in New South Wales and in the High Court in London. Sir Robert Armstrong’s testimony ranged across the recent history of government reactions to the proposed publication of sensitive information by former members of the security services and has since become a significant piece in the jigsaw of the British constitution.

Through the lens of assessing the likely regulatory impact of the 2017 EU Directive on Long-term Shareholder Engagement and its amendments to the 2007 Directive on Shareholder Rights, this article considers the mythical voice and stewardship role attributed by the EU to shareholders as active corporate governance gatekeepers and drivers of its long-term sustainability agenda. It identifies limitations of the Directive itself and practical challenges concerning the provisions on shareholder identification, executive pay, related party transactions, proxy advisors and shareholder engagement policies. It is argued that there is a considerable normative gap between the EU narrative of engagement and the challenge of engaging shareholders away from self-interest and rational apathy to fulfil a stewardship role.

This Article analyses recent developments in Union citizenship, in particular the relationship between Articles 20 and 21 TFEU. In doing so, it divides Union citizenship into a transnational and a supranational dimension with the transnational dimension having two sub-dimensions: social integration and autonomy. It is argued that we are seeing an increased emphasis on the responsibility of the individual citizen in the context of the transnational dimension and a clear linkage between the transnational and supranational dimensions. The result of these two moves is a status which continues to emphasise the relationship between the Union citizen and the communities represented by Member States, while framing this with a more prominent supranational dimension.

Long examined by the academic literature as a challenging technical-legal fiction with a strong geopolitical impact, border carbon adjustment is on its way to becoming a European reality. This Article provides an overview of the European legislative process with a comparison of the initial Carbon Border Adjustment Mechanism (‘CBAM’) project presented by the Commission in July 2021 with the positions formalised by the European Parliament and the Council in 2022. With a detour through the doctrine of international law and building upon the work of Professor Thomas Cottier on the concept of Common Concern of Humankind (‘CCH’) in international law, the Article examines the European CBAM, and more broadly, the recent multiplication of unilateral environmental initiatives with extraterritorial impacts, as a contextual transition from a logic of coexistence to a logic of cooperation in the field of environmental policies. It concludes on the necessity to design the European CBAM accordingly, by redistributing its direct revenues and developing open and inclusive cooperation frameworks, to accelerate this transition in the field of industrial decarbonisation.

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.

Is it legitimate to use discriminatory policies to achieve equality? As official support for reverse discrimination or affirmative action policies becomes more common among member states of the European Union, so does the potential for legal challenge. Yet no clear answer has yet been given by the European Court of Justice. The controversial European Court of Justice decision in Kalanke, striking down an affirmative action policy, was followed only two years later by that in Marschall, which signalled a significant change in approach to affirmative action policies. This change of attitude is likely to be tested in a variety of different ways in the near future. The next affirmative action case, Badeck, is now awaiting the opinion of the Advocate General, and a Swedish case is waiting in the wings. Both these cases are likely to take the Court into far stormier waters than those already traversed in Kalanke and Marschall.

In this chapter the authors discuss the personal scope of the Directive on the Posting of Workers (Dir 96/71/EC) and the implementation thereof in the Member States. The comparative findings are based on two studies conducted by the authors on behalf of the European Commission in 2010/2011. The authors argue that the concepts of ‘posting’ and ‘posted worker’ are crucial for a proper understanding of the scope of application of the Directive and its interaction with the Rome I Regulation on the applicable law to contractual obligations (Reg 593/2008). A clear and enforceable demarcation of the personal scope will help the Member States to combat abuse of the freedom to provide services and to distinguish more clearly between posting and other types of labour mobility. The proposal submitted by the European Commission to that effect (COM (2012) 131) is judged to be an important step in the right direction.

The proposal for a new General Data Protection Regulation has been billed as a harbinger of increased harmonisation, better enforcement and modernised rules within the area of data protection law. Through an analysis of several central elements in the draft Regulation—and European data protection law in general—as well as an assessment of the practical implications the proposal is likely to have if adopted, this chapter challenges whether the proposal will be able to deliver the harmonised rules that have been promised. It focuses particularly on the proposed regulations scope of application, its legal architecture, the use of discretionary provisions and related issues.

It is argued that the proposal not only fails to address the root causes of why the current data protection directive (Directive 95/46) failed to bring about harmonisation and effective rules, but also looks set to transplant them into the new regulation.

In May 1998, the Council, meeting in the composition of Heads of State or Government, unanimously decided, in accordance with Article 121(2) EC, that eleven Member States fulfilled the necessary conditions to move towards the third and final stage of economic and monetary union (EMU) with the adoption of the single currency on 1 January 1999. This article will discuss the legal position of the Member States which did not initially progress to the third stage of EMU, in particular, the opt-outs exercised by the United Kingdom (UK) and Denmark. There follows an analysis of the extent of the UK and Danish opt-outs and the derogation which exists in relation to Sweden (and previously Greece) together with the role of these Member States in the new institutional framework as in operation from 1 January 1999. The current political discussions on the Euro taking place within the UK and Denmark will be highlighted.

The emergence of private party liability in damages is EU law has been much discussed by academics, but it is clear from the case law of the Court of Justice that we do not yet have a principle of private party liability analogous to the principle of Member State liability. This chapter examines under what conditions it would be justified to claim that there was indeed a general principle of private party liability in EU law. Furthermore, the chapter explains that the introduction of the general principle of private party liability would require a thorough clarification of some of the most fundamental, yet still unclear, concepts of EU law, such as direct effect, the horizontal applicability of EU norms and the principle of effective judicial protection. It is argued that the jurisdiction of the Court of Justice to introduce a general regime of private party liability in damages is not without controversy and that the judicial creation of the principle will be legitimate only if adequate normative justification is provided for its presence in EU law. In this respect, it has to be recognised that EU competition law is not an adequate legal setting for the general regime to be born, because it does not bring to light tensions arising in other contexts.

This article considers the possible relationship between EU legislation governing private international law and legislation governing substantive law in the light of recent moves towards ‘full harmonisation’ and calls for greater consistency and coherence in European law-making. For this purpose, it considers the Product Liability Directive and the special product liability provisions in Article 5 of the Rome II Regulation on the law applicable to non-contractual obligations and asks how the understanding of ‘product liability’ compares in these two instruments, especially in relation to the distinctions between public and private law, general and special regulation and contract and tort.