The aim of this chapter is to provide an initial attempt at analysis of the place of risk within the case law of the European Court of Human Rights (ECtHR) and, where appropriate, the Commission, focusing on the related issues of public concern and perception of risk and how the ECHR dispute bodies have addressed these. It will argue that, for quite some time, the Court has tended to adopt a particular, liberal conception of risk in which it stresses the right of applicants to be provided with information on risk to enable them to make effective choices. Historically, where public concerns in relation to particular risks are greater than those of scientific experts—nuclear radiation being the prime example in the case law—the Court has adopted a particularly restrictive approach, stressing the need for risk to be ‘imminent’ in order to engage the relevant Convention protections. However, more recently, there have been emerging but as yet still rather undeveloped signs of the Court adopting a more sensitive approach to risk. One possible explanation for this lies in the Court’s growing awareness of and reference to the Aarhus Convention. What we have yet to see—because there has not yet been a recent, post-Aarhus example involving such facts—is a case where no imminent risk is evident. Nevertheless, the chapter concludes that the Court’s old-style approach to public concern in such cases, in which it rode roughshod over rights to judicial review, is out of line with the third, access to justice limb of Aarhus.

This article examines how the Euro-crisis and responses to it have affected the horizontal relations of power between the EU Member States. It is argued that, whereas the EU institutional system had been designed since its foundation to strike a balance between state equality and state power, the Euro-crisis and the responses to it have increasingly upset this balance. A dynamic of inter-state domination is evidenced by the intergovernmental modes of governance within the European Council, as well as by the legal reforms in salient areas such as economic assistance, financial stabilisation and banking resolution, which have entrenched asymmetries between the states. In this article, it is argued that this dynamic constitutes a worrying development, given the anti-hegemonic nature of the EU integration project, and shows how intergovernmentalism paradoxically caters for powerful Member States. The article ends by considering options for institutional reforms, cautioning against the proposal to parliamentarise the EU and emphasising the potential of a new separation-of-powers system to restore a proper balance between the Member States.

As a consequence of the British veto a reform of the EU Treaty, with the aim to strengthen the stability of the eurozone by transferring new competences in the field of fiscal and economic policies, became impossible. Therefore an international Treaty, the so called Fiscal Compact, was concluded among 25 Member States of the EU. The contribution deals with the complex relationship between both Treaties, especially with the institutional arrangement. It argues that the Fiscal Compact is in comparison to the adopted secondary legislation, the so called Six Pack, of a rather symbolic nature. The more important is the legal link between Fiscal Compact and the European Stability Mechanism (ESM), which makes stability a precondition for European solidarity. European control of stability might interfere with the budget sovereignty of national parliaments but as stability is, since the Treaty of Maastricht, a legally binding principle of the European Monetary Union, its more efficient control is in line with former transfer of competence. Not least budget sovereignty is lost if an over-indebted Member State’s choice is just between sovereign default and financial aid by the ESM. A fully fledged European control of the national budget is therefore in the last resort legitimate.

In the Brexit referendum of 23 June 2016, voters in England and Wales voted to leave the EU, while in Scotland and Northern Ireland they voted to remain. Following that, there has been a debate about how it would be possible to achieve the continuing presence in the single market of the UK constituent nations that do not want to be taken out against their will. This paper explores two pathways for Scotland and Northern Ireland to remain in the EU and/or the single market. The first entails the achievement of Scottish independence and the reunification of Ireland through democratic referendums. To this effect, the paper reviews the right of secession of those two constituent nations under UK constitutional law. It revisits the debate on the appropriate legal basis regulating Scotland’s future EU accession and discusses the Irish reunification from an EU law perspective. The second pathway explores how it would be possible for Scotland and Northern Ireland to remain in the EU and/or the single market even without seceding from the UK. In order to do that, the paper points to the remarkable flexibility of the EU legal order as evidenced in numerous cases of differentiated application of Union law. The paper shows that the EU possesses the necessary legal instruments to accommodate the divergent aspirations of the UK constituent nations.

The internal market for services is one of the objectives set by the founding fathers of the EC back in 1957. It is only in the last 10 to 15 years, however, that this aspect of the internal market has seriously attracted the attention of the EC legislature and judiciary. With the exception of some sector-specific directives dating back to the late 1980s, it was only with the deregulation of network industries, the development of electronic communications and the spread of financial services in the 1990s that substantial pieces of legislation were adopted in the field of services. Similarly, the European Court of Justice (hereinafter, ‘the ECJ’ or ‘the Court’) left the principles established in Van Binsbergen back in 1973 to hibernate for a long time before fully applying them in Säger and constantly thereafter. Ever since, the Court’s case law in this field has become so important that it is now the compulsory starting point for any study concerning the (horizontal) regulation of the internal market in services. The limits inherent to negative integration and to the casuistic approach pursued by judicial decisions have prompted the need for a general legislative text to be adopted for services in the internal market. This text, however, hotly debated both at the political and legal levels, has ended up in little more than a complex restatement of the Court’s case law. It may be, however, that this ‘little more’ is not that little.

This article analyses the roles of the European Parliament and the US Congress in addressing regulatory interdependencies arising in the EU–US strategic partnership. It examines their international actorness as a potential remedy for the problems of democratic participation, executive dominance, and opaqueness in the shaping of transatlantic relations. It shows that legislatures significantly contribute to regulatory discrepancies and trade disputes and that the adverse consequences thereof justify more intensive ex ante cooperation between them. The analysis conducts two groups of case studies to demonstrate how the EP and Congress influence law and policy in areas of transatlantic regulatory and foreign policy divergence. The first group of case studies analyses parliamentary involvement in the making of international agreements (TTIP and ACTA). The second group of case studies inspects legislative action with extraterritorial effects (US Helms–Burton and Sarbanes–Oxley Acts). The article argues that the EP and Congress have so far frequently acted against the spirit of the strategic partnership in ways that are injurious to the interests of the other side, and discusses whether an interparliamentary early warning mechanism could reduce legislative and political frictions and increase the coherence of transatlantic lawmaking.

This article explores how Member States respond to the challenge of complying with EU law obligations, whilst remaining alert to the demands of domestic politics in the context of contentious areas of EU competence. It is argued that in the case of free movement we can see the United Kingdom drawing upon three overlapping strategies in order to tread the fine line ‘between law and political truth’: it exploits as much as possible any uncertainties within free movement law; it draws upon the proximate field of domestic immigration law in order to reinterpret free movement law; and it argues for new resources to be brought into the field of free movement, in particular resources which restrict the freedoms of Member States. A discursive frame of migration governance provides the analytical construction within which the argument is located. The article is therefore a contribution to debates about (legal) Europeanisation and compliance, as well as the more specific challenges facing the UK in the latter half of the 2010s, namely a renegotiation of and referendum on EU membership.

The aim of this chapter is to argue that the European Court of Justice’s (ECJ’s) rulings in Viking and Laval raise a not completely explicit, but nevertheless significant, challenge to the role and function of national trade unions. Unions must face the dilemma of adjusting action taken to protect their members to the economic freedoms of the EU, whenever there is a situation of potential social dumping.

The judgments of the Community judicature are often subject to intense scrutiny by the media and by academic writers. The European Court of Justice, in particular, is regularly accused of being by and large an “activist” court, namely a court that construes EC law in the light of the objective the judges are trying to pursue. In particular, it is argued that the European Court uses the teleological method of interpretation to enhance the effectiveness of Community law at the expense of the written legal texts. Several studies have been published on the supposed “activist” role of the European Court and as many (or more) have been written in defence of the Court. The common denominator of all these works is that they are selective.

The Posted Workers Directive was controversial from the outset, and the recent case law from the Court of Justice has made it even more so. In this chapter, the backdrop, genesis, drafting and adoption of the Posted Workers Directive are first considered in turn in order to place it in its context. The Court of Justice’s case law is then considered and contrasted with this background and elaboration of the Directive as it was adopted. The present situation under the Posted Workers Directives is also compared with public international law norms, ILO Conventions and the European Social Charter, and the impact of the Directive in Scandinavia is considered. It is concluded that the case law of the Court of Justice is problematic because of the fact that a normative framework results from its decisions which impinges upon fundamental features of collective labour law and industrial relations: it both entails restrictions on the kinds of terms and conditions of employment which can be imposed, and encroaches upon freedom of collective bargaining more broadly. The autonomy of Member States is also limited and the effectiveness of national industrial relations regimes compromised, which is a highly undesirable outcome.

European integration, the internal market and free movement of persons and services are important aspects of EC labour law and EU industrial relations. As a result of EU enlargement and the emphasis on free movement within the EU, the problems of posting of workers, low-wage competition and social dumping are high on the agenda. This is illustrated by the epochal and much-debated Laval and Viking cases from the European Court of Justice (ECJ).

This article argues for the (re)construction of citizenship of the European Union as an autonomous status. As opposed to the current legal regime, whereby individuals with nationality of a Member State are automatically granted citizenship of the Union, under this proposal individuals would be free to choose whether or not to adopt the status of citizen of an incipient European polity. At present, the telos and essence of citizenship of the Union is contested. It may be argued that the status is partial or incomplete. This has informed competing normative perspectives. ‘Maximalist’ positions praise the judicial construction of Union citizenship as destined to be the ‘fundamental status’ for all Member State nationals. By contrast, ‘minimalist’ positions argue that the status should remain ‘additional to’ Member State nationality, and the rights created therein should remain supplementary to the status and rights derived from national citizenship. This article will argue for a new approach to the dilemma. By emancipating the condition for acquisition of EU citizenship from nationality of a Member State, and reconstructing it as an autonomous choice for individuals, it is tentatively suggested that a new constitutional settlement for Europe may be generated.

To complement the ‘no shared liability’ rule and public deficit limits, the Maastricht Treaty gave the European Central Bank (ECB) a narrow remit to focus on price stability. Crucially, as a ‘non-sovereign’ central bank, it was unclear that the ECB would act as lender of last resort in the event of market panics. The neoliberal orthodoxy at the heart of Economic and Monetary Union (EMU) held that moral hazard and inflationary risks militated against anything resembling ‘illegal monetary financing’. Following monetary union, markets under-priced risks and encouraged bubbles, but, with the onset of the crisis, sentiment overshot the other way, starving credit from banks and later sovereigns. With bailout funds limited and austerity failing to improve debt spreads, sovereigns became illiquid. ECB officials reluctantly concluded that an uncontrolled sovereign default would threaten the continuation of monetary union. The ECB was thus forced de facto to expand its mandate, first to help banks and, later, to help sovereigns facing loss of access to bond markets. Ultimately this was successful in restoring confidence, but the ECB remained uncomfortable with its role. It has continued to stress its legal limitations and has pressed for reformed governance to enforce fiscal discipline. The economic case for a lender of last resort in a crisis was always strong, but brings with it a worsening moral hazard problem that may invite leaders to avoid the deeper political changes necessary to rebalance the Eurozone.

The concept of a European prosecution service operating within a single legal area as proposed by the 1997 Corpus Juris study aimed to tackle impediments to the prosecution of budgetary fraud cases in the transnational context. Subsequent compromises shifted the focus of negotiations from creating a European prosecution service with uniform powers to the integration thereof into the divergent national legal systems. This paper analyses relevant documents up to the draft endorsed by the 2015 Luxembourg Presidency and concludes that the scene is set for autonomous and binding Union decisions to prosecute budgetary fraud at national level. Nonetheless, the low-level of Europeanisation coupled with an increasingly complex model and no real scheme to tackle the fragmentation of national criminal laws fail to enable effective and consistent prosecutions of EU budgetary fraud.

In 2007, Brian Bercusson observed that:

Previously, deference to domestic labour legislation did not translate into judicial recognition of a right to collective bargaining or a strike. There was only speculation that this should be the case, accompanied by significant opposition from the UK to such a prospect. Judgment day has since come and we have been told that ‘[t]he right to take collective action, including the right to strike, must … be recognised as a fundamental right which forms an integral part of the general principles of Community law’. Indeed, it also seems that such a right extends at least in theory to secondary and transnational action.

How does EU legislation impact the Member States? Arguably, no other issue is more closely connected to national sovereignty. However, existing research has thus far failed to deliver a univocal answer to this question. Instead, quantitative research – from political scientists and public administration scholars – has resulted in very diverging conclusions. By contrast, the legal perspective on the relationship between the EU and its Member States has been dominated by a focus on the principles of conferral and subsidiarity, as well as on the delineation and use of EU powers. Such an approach makes it equally difficult to identify the actual and concrete impact of EU legislation. Yet, it is contended in this contribution that a legal perspective, focusing on the actual content of EU legislation, is needed to come to a better understanding of the EU’s legislative impact on the Member States.

The scope of application and the added value of EU legislation as well as national discretion therein are three key elements for determining the impact of EU legislation. The scope of application concerns the situations covered by EU legislation; added value regards the question of how EU legislation relates to other (pre-existing, overarching and adjacent) EU law. Policy choices and other room for manoeuvre for the Member States included in EU legislation makes for national discretion. Examples may be open norms or non-defined terms and concepts and the possibility to apply exceptions at the national level to general rules of EU legislation. Three areas of EU law are compared, each with a focus on a particular legislative act: migration law (the Family Reunification Directive); freedom to provide services (the Services Directive) and criminal law (the Framework decision on the European Arrest Warrant).

This chapter explores the ambiguous allocation of authority in the governance of two areas of environmental protection: industrial pollution and genetically modified organisms. Ambiguity, that is, a difficulty in asserting that any single actor has the final word on a subject, is inevitable in the EU’s multi-level governance system and is not necessarily undesirable. These two examples demonstrate that even in the face of concerted efforts to introduce a formal hierarchy, the need for collaboration around softer norms persists.

This chapter suggests the deployment of the concept of European citizenship as a means of integration alongside the internal market, proposing the citizenship paradigm of European integration to inform the Union’s future. This proposal, based on a combination of the initial promise of European unity and the potential of EU citizenship, is not purely utopian but is directly rooted in the primary law as well as in the purpose of the integration project.

Why are there Advocates General in the Court of Justice of the European Union? A standard answer to this question is likely to be either a simple textual reference (because the Treaty provides for them); or an appeal to authority (because the original framers of the Treaties put them there, inspired by the French legal system); or a rather pragmatic appeal to their on-going utility (because they assist the Court and they do a great job); or any combination of these three. All of these explanations are valid. This contribution, however, attempts to go a little deeper in discerning what may be the ideological justification for Advocates General in the Court of Justice. It does so by carrying out a historical and comparative study concerning their origins and systemic justification from the vantage point of a national lawyer coming from a Member State that does not know any type of a ‘fourth in the court’.

The first part of the contribution explains which factors have considerably eroded the position of Advocates General in the course of the last decade and why questions concerning their role and its justification became topical. Second, the commonly invoked reference to the French inspiration for introducing Advocates General is critically examined. It is suggested that justifications once provided with respect to the office of commissaire du gouvernement in the Conseil d’État can hardly be used on the European level with respect to Advocates General. Third, possibilities of internal justification of the role of Advocates General are examined: are Advocates General providing any unique assistance to the Court of Justice, which could not be provided for in different ways? With a negative answer to the latter question, the last part of the argument offers a simple yet solid overreaching justification as to why there should be Advocates General in the Court of Justice.

This article argues that discourses of constitutional pluralism contain a strong normative core which is made up of a series of largely unacknowledged implicit claims about legitimacy and community. This argument is illustrated by reference to various constitutional pluralist responses to the Hungarian Constitutional Court's ruling concerning the protection of constitutional identity in the context of EU asylum and refugee protection law and policy, demonstrating that whether this decision falls ‘inside’ or ‘outside’ constitutional pluralist tolerance depends on how the observer defines the minimum amount of shared substantive or procedural content that is fundamental to the EU order.