On 1 may 2004, 10 new Member States joined the European Union. This meant inter alia that, save for the express derogations provided for in the Act of Accession, the entire mass of Community secondary legislation became binding in the new Member States. This principle of the immediate effects of Community law in the new Member States was provided for in Article 2 AA:

Private enforcement is an increasingly prominent element of EU competition law. The forthcoming Directive on damages actions aims to strengthen and, to a degree, harmonise procedures for private competition litigation, while recent case law of the Court of Justice reaffirms the centrality of the right to claim compensation for losses stemming from breach of the competition rules. Moreover, this right has been presented as an essentially unitary one, whereby any victim of any type of competition infringement has, in principle, the right to claim damages. This chapter reviews the evolving framework, and considers, specifically, the role for private enforcement within the overall system of EU competition law. Taking into account the Commission’s efforts to facilitate and increase private enforcement, the emerging EU public enforcement framework, as well as the substantive EU competition rules more generally, this chapter argues that, contrary to the rhetoric, private enforcement is a mechanism best adapted, and arguably most appropriate, for use only in the context of hard-core cartels. It is further suggested that the gap between rhetoric and reality is not problematic as such, yet difficulties may arise insofar as these divergences conflict with the principle of effectiveness.

The principle of consistency has a prominent place in EU law. In the Treaty of Lisbon, it constitutes an umbrella under which a number of legal principles of EU law follow as corollaries. Consistency manifests itself within both horizontal and vertical levels of governance. This chapter will unpack this principle and will focus on the broader implications of consistency for the division of powers in EU law. In doing so, the authors aim to discuss the rise of consistency in EU law and decrypt its various constitutional expressions in order to determine its scope of application. Two notions of consistency are presented: a formal one that appears in the Treaty of Lisbon and a strategic one, prominent in the case law of the Court of Justice of the European Union (CJEU). It is argued that consistency is relevant to both traditional (integrationist) and alternative (differentiated) routes to European integration. The chapter concludes by discussing whether the undefined nature of ‘consistency’ puts it at risk of becoming an empty vessel.

In broad terms, there are two approaches to returning suspects and convicted persons to the other countries where they are wanted, and would prefer for obvious reasons not to go.

One is what is called in the common law world ‘the backing of warrants’. Here, the authorities of the jurisdiction where the person is wanted issue their normal warrant of arrest, which is sent directly to the authorities of the jurisdiction where he is, who endorse it if it appears to be in order, and give it to their policemen to execute it as if it were their own. The suspect is then ‘lifted’, and handed over to the authorities of the country where he is wanted with the minimum of fuss—the unspoken premise being that the authorities of the requesting jurisdiction normally act lawfully and reasonably, and their arrest warrants can be taken at face value and acted upon unless a strong reason to the contrary can be given.

It was born, with much rejoicing, at a party near a quiet Luxembourg village; it died, alone and unlamented, on a desk in a non-descript Brussels office. On May 1, 1999, the fourteen-year old Schengen legal order finally breathed its last; but nothing quite became its life as the ending of it. For it was immediately reincarnated, with much confusion, into a legal system born in Rome over forty years ago. Long a byword for obsessive secrecy, unaccountability and complexity, the Schengen legal system has with one stroke moved from the “black market” of European integration into the mainstream.

The legal system of the European Union generates particular problems of opacity and lack of clarity. This chapter seeks to identify some of the causes of those problems. First, the nature of the texts with which the Court of Justice deals—’Union legislation’, orders for references from national courts and submissions to the Court—is examined. Problems here include the multi-lingual and multi-cultural backgrounds of those involved in the process, vagueness in legislative drafting and lack of clarity in references and submissions placed before the Court. Secondly, the Court’s own judgments and the opinions of its Advocates General are considered. Problems here include the factors governing the drafting of a single consensus judgment and the fact that it is not always easy to strike the correct balance between speed and quality. Lastly, a number of suggestions for change are offered. The obstacles are not insuperable and improvements can be made.

In this article, I scrutinise the impact of the reform that will double the number of judges at the General Court. I examine the consequences of a wider use of a five-judge chamber, the continuation of generalist chambers, and the possible departure from the General Court’s minimal standard of review of legality. But greater efficiency at the General Court will have important consequences for the Court of Justice too. The Court of Justice must anticipate more appeals following the General Court’s increase in productivity; the transfer of jurisdiction to the General Court to hear preliminary references is considered. Profound changes at the General Court will lead to the Court of Justice becoming a very different institution to the one we know.

When we talk about harmonisation, we may mean quite different things. There is a close, yet often unclear, relationship between minimum harmonisation and mutual recognition on the one hand, and between full harmonisation and the country of origin principle on the other hand. This paper will discuss harmonisation in relation to these other regulatory models with, among others, the Tobacco Products and Services Directives as illustrations. Moreover, many years after Tobbaco Advertising I and II it remains entirely unclear how minimum harmonisation instruments must be designed in order to be lawful. This paper proposes a consistent reading of the case law on what is called legislative minimum harmonisation based on Article 114 TFEU. It is also shown that the Court of Justice of the European Union applies a lenient standard to more stringent national measures under what is called constitutional minimum harmonisation based on competences for social policy and the environment.

This article analyses the recent reform to the EU’s genetically modified organisms (GMO) regime which allows Member States to restrict the cultivation of GMO on their territory for reasons that do not relate to issues of health and safety or the environment. By allowing for national differentiation – although on legally questionable grounds – new Article 26b of Directive 2001/18/EC has been presented as a solution to overcome the impasse in GMO decision-making. However, this article finds that the reform fails to provide a solution for the EU regime’s most pressing problem, namely its disregard for scientific uncertainty and disagreement.

This article proposes the “muting” of the SGP, the framework of rules that the EU has implemented since the coming into being of the European Monetary Union in the fiscal domain. It is argued herein that the system is far from being credible, from the perspective of the law-as-credibility paradigm. Therefore, the legal condition of the SGP should be “muted”. Three proposals to legally mute the SGP are examined in this article. The Open Method of Coordination is used as a useful model that could be followed from now on in the EU fiscal field. The gains in terms of legal credibility would argue in favour of the muting of the SGP and its correlative conversion into an OMC-like system.

According to the traditional view, quantitative restrictions and discriminatory rules could be justified only according to the Treaty derogations contained in Article 30 of the EC Treaty. On the other hand, most indistinctly applicable measures, benefit also from other and broader grounds of justification: the mandatory (or imperative) requirements.

This distinction has been in recent years occasionally disregarded by the Court: this has led to a certain degree of confusion as to the theoretical explanation of the mandatory requirements doctrine. In particular doubts have been raised as to whether the mandatory requirements should not in fact be considered as additional grounds of derogation to those listed in Article 30 EC.

This article analyses the interaction between the application of mutual recognition in criminal matters and the right to liberty. The main argument is that the current content of the right to liberty in EU law is unsuitable for mutual recognition procedures. As for the structure of this article, firstly, the main features of mutual recognition as a method of inter-state cooperation in criminal matters are outlined. Secondly, the approach of the European Union (especially the Court of Justice) to the right to liberty is clarified. Thirdly, four mutual recognition instruments are analysed in light of the right to liberty: namely, the Framework Decisions on the European Arrest Warrant; the Transfer of Prisoners; the Probation Measures; and the European Supervision Order (ESO). The assessment confirms that the higher level of automaticity in judicial cooperation introduced by mutual recognition requires a rethink of the existing understanding of the right to liberty in EU law.

In this article, I argue that apparently common values, such as ‘judicial independence’ have significantly different meanings in different judicial cultures. As an illustration, I take Sweden and Spain, countries with very different histories and institutional arrangements. It is my contention that basic values are understood and implemented in the light of historical and institutional settings. These have given rise to issues which a nation’s judiciary feel it has to address and set the context in which the contemporary judiciary has to operate. The purpose is to examine how far national histories and traditions colour the understanding of common values, such as judicial independence and democracy in the judicial process.

This essay is continuing the path between the disciplines of law and political science that I have been following for a couple of years now. This is a somewhat delicate exercise. In addressing my own discipline, law, I argue that it should renew its perceptions of reality and open up its normative and dogmatic conceptual structure. To political scientists engaged in integration research, I suggest that they ought to take the law’s normative structure seriously and open up their analytical and empirical models to this peculiar reality. ‘Two goals?! No wonder he never gets anywhere!’ By no means, I would object, we are only looking at the two sides of the same coin. And there are good reasons to undertake such efforts: Europe’s constitution is too important to be left up to the lawyers; but it is also something that cannot be grasped by empirical and analytical approaches which are unable to address the normative dimension of the ‘real’ world.

This chapter takes as its starting point the ‘information approach’ which is the basis of current EU consumer protection legislation. It argues that the findings of behavioural economics suggest that the ‘information approach’ does not in practice achieve the protection of the consumer which it is trying to achieve. Insights and techniques gained from behavioural economics can be used as the basis for more effective consumer protection legislation, while at the same time respecting the principle of consumer autonomy which is the fundamental (though sometimes unstated) principle of EU internal market law.

This article argues that constitutional pluralism is not a theory merely for times of equanimity, but crucially, in times of constitutional conflict. Given that it rests on the premise of regarding law as a dynamic, incrementally developing creature, constitutional conflict is no exceptional event, and represents an important element of the system's functioning. However, this does not mean that every point of conflict necessarily means progress for the pluralist system as a whole: it is possible to distinguish constructive from destructive conflict. In this respect, this piece will put forward a normative argument concerning the limits to which the auto-correct function of constitutional pluralism can stretch. In so doing, this piece will look at the recent jurisprudence of constitutional conflict at the EU and national level to demonstrate the limits of constructive conflict, as well as show how the example of Poland falls into the category of destructive conflict.

The calamitous Rana Plaza factory collapse in 2013 focused international attention on labour rights’ violations and factory safety in Bangladesh’s dominant ready-made garment industry which is almost wholly dependent on exports to the EU. In response, the EU and the ILO launched the Bangladesh Sustainability Compact, with the core objective of promoting continuous improvement in labour rights and factory safety in the industry. The uniqueness of the Compact stems from its nature as a form of experimentalist governance involving both governmental and non-governmental actors. Being primarily an EU-led initiative based on balancing trade, sustainable development and human rights’ objectives, it is underpinned by the possible option, if the Compact fails, of withdrawing trade preferences. This article will examine the rationale for the Compact, its main features, and its effectiveness as a form of ‘global experimentalist governance’.

This article analyses the financial regulation of Special Purpose Acquisition Companies (‘SPACs’) in the European Union and SPAC reform in the UK against the main legal system where the SPAC originates: the US. I argue that the US and financial regulators in Europe have opposing views on SPACs, evidenced by the adoption of two different regulatory approaches. As opposed to a SPAC regulation by business or function and by enforcement in the US, the European Union and the UK are implementing a SPAC regulation by objectives, where general principles of company and financial law inform the SPAC legal discipline. This enormously enriches the SPAC current debate, and sheds new light on the subject.

Why is it so difficult to qualify the Court of Justice’s decisions as ‘sources of law?’ Does the Court of Justice only ‘interpret’ law, or does it ‘make’ it? To what extent should its pronouncements be taken into account by others? This chapter shows how a particular theoretical approach to precedent and judicial lawmaking shapes the answers to the queries mentioned above. It examines a set of interrelated questions concerning precedent and judicial lawmaking by the US Supreme Court and the French Cour de cassation and then applies these findings to the Court of Justice. The questions are: first, in what sense is it said that these courts make law; secondly, who is bound by their pronouncements; and, thirdly, how does this binding force actually work? It is suggested that while the US and French systems have found ways in which to reconcile judicial lawmaking with the basic premises of their constitutional and political systems, especially by allowing other actors to respond to judicial lawmaking (in the particular sense of the word ‘lawmaking’ used in these two systems), the EU system is still waiting for a satisfactory answer.

By focusing on processes and institutional change, EU citizenship emerges as a co-created institution. It is the product of institutional design and co-creation by actors at all levels of governance and is shaped by multilogues at the ‘top’, ‘bottom’ and ‘sideways’, as well as by citizens’ formal and informal actions. A co-creation perspective leads us to reconsider state-centred assumptions about which form of citizenship should be predominant and the dualism of centralism (supra-nationalism) versus ‘home-rule’ (intergovernmentalism), and to embrace a genuinely citizen-centred perspective. The chapter develops the co-creation paradigm, examines its dimensions, various forms and patterns and, by discussing the post-Rottmann and Zambrano case law (McCarthy, Dereci, Iida, O, S and L and Ymeraga) as well as Tsakouridis and PI, sheds light onto the complex dynamics that make EU citizenship a vehicle of transformative institutional change but that can also work against it.