Direct democracy exhibits both promise and peril for the EU. The referendum has been deployed by Member States in a way that has shaped and will continue to shape the EU’s geographical boundaries, its constitutional evolution, and salient EU policy matters. The referendum’s promise is to accord a high degree of legitimacy to a political decision, but that promise varies across different types of EU referendum. Their peril for the EU has become increasingly apparent as they have proliferated in number and type and with a growing failure rate. In contrast, the European Citizens’ Initiative is intended to harness the promise of direct democracy for the EU. But current practice raises the question of whether the failure to satisfy the ambitions placed on this novel instrument could, paradoxically, become a source of peril. Contrary to an increasingly pessimistic narrative, it is concluded that practice under the ECI exhibits promise and that the future of this instruments appears bright.

This article explores the European Parliament's July 2018 non-legislative resolution proposing to the European Commission a directive for facilitating social enterprise companies’ cross-border activities. The proposal is first situated within the context of the social economy and how the sector has grown in importance to European integration. The proposal and the European Commission's response are then examined. Although the European Commission was not convinced that Member States would be amenable to the proposal, a consensus may already exist that is sufficient to garner their support. Even if this prediction is wrong, however, it is argued that there are reasons to surmise that the proposal will likely be reassessed and ultimately successful at some future point. Finally, the proposal is viewed with a reflexive harmonisation lens. Through the analysis, regulatory issues are identified, and a solution is then suggested.

The European Council emerged as the dominant institution in the special legislative procedure that led to the adoption of the European Union’s Multiannual Financial Framework (MFF) Regulation for 2014–20, even though it is not mentioned in Article 312(2) TFEU as an actor in the procedure and Article 15(1) TEU states that it ‘shall not exercise legislative functions’. This article assesses the role played by the European Council in the MFF process for 2014–20 in light of the post-Lisbon Treaties and draws attention to the legal ambiguities that persist, as well as the practical challenges that will face the other Union institutions, notably the European Parliament, in seeking to counter that dominance in future MFF procedures.

This chapter provides a case study in regulatory multi-level governance within the European Union, with a substantive focus on the regime in place for the authorisation of cultivation of genetically modified crops. Whilst presenting a detailed account of the supranational level regime, it seeks explicitly to write in the subnational, regional dimension to our accounts of policy evolution in this highly controversial area. The chapter considers regions’ ‘upstream’ engagement in the policy processes at EU level, through judicial challenge to EU measures as well as attempts to influence supranational level legislative reform, which is currently ongoing. In this regard, it looks both at the role of regions within this process, and within the terms of the resultant legislation. In addition, the chapter considers regions’ ‘downstream’ engagement, in their implementation and application of the existing rules. As a number of regions have sought to declare themselves GM-free zones, this chapter explores the legality of such local and regional GM crop cultivation bans, as a matter of EU law. In short, the chapter contributes further to our understandings of the place held by regions within the EU system of governance demonstrating how regions may themselves be both legal and political actors of significance within the EU order, whose interests are not always congruent with that of their Member State.

This article aims to map how soft law tools have complemented and supported the overall regulatory strategies implemented by European countries to counter the Covid-19 crisis (the soft law atlas), to shed light on some key topics of general interest for legal theory and practice: how soft law tools interact and complement one another including on different levels (the soft law web), how soft law tools interact and complement the sources of pandemic law (the interplay between soft and hard law), and the positive and negative impacts on governance and policy-making of soft law tools during the pandemic and beyond (soft law bright and dark sides).

This article explores the influence of Articles 20 and 21 of the Charter of Fundamental Rights of the European Union in the development of EU equal treatment law, with emphasis on forms of discrimination precluded by Council Directive 2000/43 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, and Directive 2000/78 establishing a general framework for equal treatment in employment and occupation. The author contends that although Articles 20 and 21 are primary measure of EU law, their impact in the development of case law elaborated pursuant to the Directives is relatively muted. This may have stunted the development of jurisprudence on the relationship between Articles 20 and 21 of the Charter, and rules contained in Title VI of the Charter governing its interpretation and application, such as Article 52(3) on the relationship between the Charter and the European Convention on Human Rights, and Article 52(1) on justified limitations. The author forewarns against the emergence of incoherence in the case law in this context, and with respect to the role of Articles 20 and 21 in disputes over the meaning of Directives 2000/43 and 2000/78 and calls for fuller reflection on Charter rules in disputes based on an allegation of discrimination.

It is more than 40 years since the Court of Justice first articulated in Van Gend en Loos the principle that has come to be known as the direct effect of Community law, and which means, in broad terms, that rules derived from the EC Treaty, so long as they are capable of being applied using ordinary judicial techniques, form part of the law available to courts and tribunals in the Member States for resolving disputes before them. As the Court famously stated:

In the classical narratives of the story called European integration, national judges are said to have a ‘mandate’ under European law: they are ‘empowered’ by EC law or, in the less thrilling versions of the story, they simply become ‘Community judges’. Not only are national judges obliged to apply substantive EC law, they are also requested to apply it in the way required by the Court of Justice. How, precisely, national judges are asked to apply EC law in domestic courts has traditionally been portrayed through the case law of the Court of Justice; not much attention has been paid to the reality in national courts. Over the years, the case law of the Court of Justice has created an image of a veritable European judicial Hercules: a judge who reads in many of the official languages of the European Union; who knows not only all the relevant national and European law, which he or she applies ex officio, but also engages in comparative interpretation of the law; who identifies him- or herself with the European telos which he or she is applying on the national level; and so on.

This chapter discusses whether Article 81 EC has a unique consumer welfare goal. It argues that public policy goals must also be considered within Article 81 EC today.

Competition policy cannot be made rational until one decides what it is there to achieve and whether it is to have one goal, or many. Community competition law’s goals are rarely discussed, but many of the Commission’s policy statements now assert that the objective of Article 81 EC is to protect competition on the market as a means of enhancing consumer welfare and ensuring an efficient allocation of resources. There is no room in the Commission’s new world for public policy goals. Many Community competition lawyers support the Commission’s new approach.

Who is bound by the competition rules in the EC Treaty? Article 81 EC applies to agreements and concerted practices between undertakings and to decisions of associations of undertakings; two addressees are specified: (a) undertakings and (b) associations of undertakings. This paper is mainly concerned with the meaning of (a) undertaking. As noted by Advocate General Jacobs, ‘the concept of “undertaking” serves a dual purpose in the system of Article [81]. On the one hand—and this function is more obvious—it makes it possible to determine the categories of actors to which the competition rules apply. . . . On the other hand, it serves to establish the entity to which a certain behaviour is attributable’.

After Each New Treaty amendment, it comes time to hand out the ‘Major Awards’ for the worst-drafted new Treaty provisions. For the Treaty of Lisbon, there is a clear winner: the provisions concerning the opt-outs of the UK, Ireland and Denmark from the EU’s Justice and Home Affairs (JHA) policies. These already-complex provisions have been made further complex in order to address, on the one hand, the demands of these Member States for further flexibility as regards JHA policies, and on the other hand, to clarify the position if these Member States wish to opt out of further developments regarding rules into which they have already opted.

The proponents of international courts (ICs) expect that creating formal legal institutions will help to increase respect for international law. International relations scholars question such claims, since ICs have no tools to compel state compliance. Such views are premised on the notion that states have unique preferences that ICs must satisfy in order to be effective. The tipping point argument is premised on the notion that within each state are actors with numerous conflicting preferences. ICs can act as tipping point actors, building and giving resources to compliance constituencies—coalitions of actors within and outside of states—that favour policies that happen to also be congruent with international law.

The European responses to the financial and public debt crisis have triggered a process of administrative reorganisation and growth in the governance of the internal market in financial services and economic and monetary union. Such a process is characterised by four main tensions, referring respectively to: the powers conferred on the satellite administrative bodies established in order to tackle the crisis; the jurisdictions of the new administrations; the degree of centralisation which is sought within the new mechanisms for the implementation of EU laws and policies; and to the accountability mechanisms. The effects of such tensions are deeply ambivalent. On the one hand, they might operate as ‘fault lines’ within the EU administrative machinery. On the other hand, by pointing to a host of unsolved issues in EU administrative law, they provide an opportunity for opening a genuine institutional and scientific discussion on the ways in which the EU administrative system should be adjusted or reformed.

The article addresses the role market definition can play for EU competition practice in the platform economy. The focus is on intermediaries that bring together groups of users whose decisions are interdependent, which therefore are commonly referred to as ‘two-sided platforms’. We address challenges to market definition that accompany these cross-group network effects, assess current practice in a number of competition cases, and provide guidance for adapting practice to properly account for the economic forces shaping markets with two-sided platforms. We ask whether and when a single market can be defined that encompasses both sides. We advocate a multi-markets approach that takes account of cross-market linkages, acknowledges the existence of zero-price markets, and properly accounts for the homing behaviour of market participants.

In April 2019, the Court of Justice of the EU (‘CJEU’) handed down its Opinion (C-1/17) on the compatibility of the Investment Court System (‘ICS’), that is the Investor-State Dispute Settlement (‘ISDS’) mechanism under the EU-Canada Comprehensive and Economic Trade Agreement (‘CETA’), with EU law. This article puts Opinion 1/17 in its broader (policy and legal) context, focusing on the salient issue of compatibility with the principle of autonomy of the EU legal order. It argues that the Court's openness to this judicial competitor was an acknowledgment of the need to maintain the powers of the Union in international relations. However, Opinion 1/17 should not be perceived as an automatic green light for any future investment court (such as the Multilateral Investment Court) as the autonomy test it introduces is a rather difficult one to pass.

Membership is central to the EU, as it is to any other international organisation. Withdrawal has assumed centre-stage through Brexit. While there is literature that is relevant to membership, most notably through academic discourse on differentiated integration, there is little more general inquiry concerning membership, the concept of which has importance and implications over and beyond more particular avenues of scholarship. This article examines the formal and substantive dimensions of membership and withdrawal in the EU.

In an article published in 1983, Pierre Pescatore who, as a Member of the Court of Justice, exercised a powerful intellectual influence over the development of European Community law during what might be deemed the Court’s Golden Age, once described direct effect as ‘an infant disease’. What he meant was that, in the early years of the Community, it may have seemed remarkable, even dangerous, that provisions of the EC Treaty or of acts adopted under it could give rise to rights and correlative duties which national courts were called upon to recognise and enforce. But now that Community law had reached maturity, direct effect should be taken for granted, as a normal incident of an advanced constitutional order.

In this article, I explore the substance and operation of Article 16 of the European Union’s Charter of Fundamental Rights, which recognises ‘the freedom to conduct a business’, in order to determine the extent to which the constitutionalisation of commercial interests as fundamental rights could pose a threat to the Union’s worker-protective acquis. Having surveyed three important Directives which regulate employees’ rights in transfers of undertakings, collective redundancies, and the organisation of working time, I argue that future challenges based on Article 16 CFR are unlikely to succeed: even in situations where the Directives limit employers’ economic freedoms, such interference is justified and proportionate.

This article places the current legal framework governing posted work within the debate on ‘Europeanisation’ in order to assess to what extent the Posted Workers Directive may be seen as a successful tool to ‘Europeanise’ national labour law systems as assessed against its dual objectives of promoting the transnational provision of services while also guaranteeing respect for the rights of workers. In doing so, the article contextualises and analyses the Posted Workers Directive which allows for the identification of remaining gaps in protection. The article concludes with an assessment of the European Commission’s most recent proposal to amend the Directive.

When a criminal case with trans-border ramifications is to be prosecuted within a given state, the following three problems typically arise:

1. — bringing the defendant, currently abroad, to that state, to enable the case against him to be tried;

2. — obtaining relevant evidence from other jurisdictions;

3. — persuading the courts of the state where the defendant is to be tried that they can use it.

The first of these problems is in principle the most important. Unless a legal system is prepared (as some were in the past) to try defendants in absentia and then punish them in effigy, the defendant’s physical presence within the jurisdiction of the court is usually required in order to bring the mechanism of the criminal law to bear upon him.