There currently appears to be considerable confusion amongst regulators and stakeholders over the purpose of the EU’s directives on public procurement and lack of a clear vision of what the directives seek to achieve. Against this background this article has two objectives. First, it seeks to provide a framework for understanding the directives’ functions and their relationship with national policy. In this respect it identifies the ends and means that the directives do, or could, adopt and/or which have been ascribed to them, and considers the implications of each for national regulatory space. Secondly, for each of the ends and means it suggests a specific legal interpretation of its actual and potential role in the EU’s legal framework.

It is argued that the directives seek to promote the internal market and that they seek to do so solely by three means—prohibiting discrimination, implementing transparency, and removing barriers to access. It rejects, on the other hand, certain broader conceptions of the directives, including that they promote a single market by standardising procedures; that they replicate in the public market the competitive process of the private market; and that they seek value for taxpayers’ money. It is argued that rejection of these broader functions has important implications for the scope of national regulatory space, both as regards the ‘commercial’ aspects of public procurement—notably ensuring value for money and an efficient procurement process—and as regards ‘horizontal’ policies in the sense of policies that promote social and environmental objectives through public procurement.

This chapter considers the evolving institutional responses to the challenge of regulating telecoms in the EU, taking in the Commission’s push for creating an EU agency versus the resilience of the transnationally networked model, which is usually attributed to the Member States’ sovereignty reflex. Were recent negotiations over the reform of the Regulatory Framework for telecoms, concluded in 2009, simply a turf-war in which the Commission sought to extend the EU’s role against resistance from the Member States, or did the national telecoms regulators and their existing transnational network influence the eventual compromise to retain the soft law, networked model, albeit with some hardening? Characterised as a classic integration struggle, the Member States’ intergovernmental instincts were pitched against the Commission’s supranational instincts and its preference for instruments of control premised on the centralised exercise of hierarchical power. But this chapter paints a more fine-grained picture of the negotiation’s dynamics and especially the influence of the national regulatory authorities (NRAs) and their existing transnational network; a community of expertise that stood to have its role either strengthened or diminished in the revised institutional architecture. In doing so, the chapter moves beyond orthodox (intergovernmental and neofunctionalist) accounts of these dynamics to take an institutionalist approach that is better suited to analysing the EU as a mature system of governance.

European law manifests powerful perfection-seeking internal dynamics, nudging—even compelling—legal actors to strive to make the European legal order ‘the best it can be’. This chapter uses a comparative approach to show that this perfectionism is contingent (that is, not necessarily shared by all legal orders), and that it is a highly distinctive characteristic of European legalism specifically. Uncovering the hidden dynamics of this juridical perfectionism is an important step towards rethinking European law’s agency and its correlate: our own ability to shape European integration through law.

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.

The paper is a critique of ‘constitutional pluralism’, as increasingly called upon to compensate for the social and democratic deficits of the European project, and of ‘constitutionalisation’ as compensating for the absence of any semblance of ‘constituent power’ at the European level. The substitution has been largely successful in redefining the terms of the debate. My interest in this paper, more specifically, is with constitutionalisation as a process of ‘becoming-constitutional’, the conditions of that process, and the criteria of ascription of constitutionality. My argument is that it involves a constitutive coupling with constitutional pluralism, such that allows even the current crisis to be portrayed as an ‘opportunity’ for Europe’s alleged ‘social market economy for the 21st century’ to ‘come out stronger’, its progress at no point obstructed or derailed by the peoples’ of Europe resistance to it.

Many legal systems have specialist labour courts with jurisdiction over individual employment disputes or collective labour disputes or both. The literature identifies a number of possible justifications for the use of specialist labour courts. This chapter will engage in a critical examination of this literature in order to develop a framework for analysing the performance of courts (whether specialist or otherwise) in deciding labour law cases. We shall then apply that framework to some of the recent case law of the Court of Justice of the European Union.

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.

In this chapter I consider the role that the constitutional state has played in restricting our sense of the possibilities of constitutional thinking and I trace the connections between the modernist state and metaphysical thinking. In doing so I hope to suggest that constitutional thinking does not need to be tied to the ‘state’ and instead concerns the commitment to what I term ‘enduring truths’. These truths are enduring, I argue, precisely because they cannot be confined to any particular epoch of constitutional undertaking, whether we call it the ‘pre-state’, ‘state’ or ‘post-state’. To explore these issues I have taken the debate surrounding the mature example of a political community which is said to be ‘beyond constitutionalism’—the European Union. My argument is that it is irrelevant to tie the problem of the EU’s constitutional future to the legacy of the state or to abandon constitutionalism itself in favour of a prospective procedural administrative accountability. What is now required is a commitment to a constitutional possibility for the renewal of the enduring truths of constitutional life rather than a steadfast adherence to the conventional metaphysics of the constitutional state.

Against the backdrop of the current euro area crisis and the imbalance at the heart of the Economic and Monetary Union, this chapter will explore the current state of fiscal integration, as well as its likely future and limits. It will do so by, first, creating a ‘map to fiscal integration’ that takes into account the degree of legalisation of state cooperation, as well as the subject-matter of particular fiscal rules. The three measures or packs of measures adopted by the euro countries since the start of the crisis will be discussed and located within this map to fiscal integration. The chapter will show that a distinction can be drawn between (1) what will be referred to here as ‘balance rules’, or rules that concern budgetary discipline and balance, and (2) substantive rules or measures that concern the allocation of resources within a state and thus have a distributive or redistributive effect. Once the state of play of fiscal integration is clear, the chapter will turn to the shape of future integration in this area, arguing that further fiscal integration—or legal integration that goes beyond balance rules and crosses into the (re)distributive area—is severely limited by the current Treaties and that, moreover, even a hypothetical Treaty amendment with a view to creating a full EU fiscal policy of this kind would run into significant theoretical problems, both as a matter of EU law and of national constitutional law.

Using the example of anti-terrorism measures, this chapter looks at the difficulties experienced by the Court of Justice of the EU (CJEU) in reconciling the conflicting demands of fundamental rights protection and public security. It shows that under the current arrangements, the CJEU cannot have regard to information which has not gone through a proper adversarial hearing, even in cases where disclosure of the relevant information will jeopardise the public interest. The chapter thus envisages the possibility for reform. It examines, in particular, the special advocate procedure and the sort of difficulties that its transposition in the EU context would give rise to.

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.

What you find inspiring depends to a degree on where you come from and what you are looking for. So, by applying the principle of transparency, let me put my cards on the table. Those who founded the European Communities, and indeed both Jack Mackenzie Stuart and I, went through the last World War. I imagine that I will be the last judge of the Court in Luxembourg of whom this can be said. If you have been through such an experience, it is something which marks your whole life.

In parallel with American constitutional thought, there exists a doctrine of incorporation in the European legal order. European fundamental rights will thus not exclusively limit the European institutions. They may—in certain situations—equally apply to the public authorities of the Member States. This chapter looks at the incorporation doctrine across the three sources of European fundamental rights. With three distinct sources of fundamental rights, the constitutional principles governing the European incorporation doctrine are unsurprisingly more complex than the American incorporation doctrine. What are the similarities and dissimilarities between the European and the American incorporation doctrine? The Union presently favours selective over total incorporation. In this respect, it emulates the American constitutional order. Yet the European doctrine nonetheless differs strikingly from the classic American doctrine. For unlike the latter, the European legal order has not made incorporation dependent on the type of fundamental right at issue. The European doctrine has, by contrast, made the incorporation of Union fundamental rights into national legal orders dependent on the type of Member State action.

In 1997 the idea of a European Public Prosecutor was floated in the Corpus Juris Project as one of a series of measures designed to ensure that fraud on the Community budget would be detected and punished. This chapter describes how in the UK the proposal was misrepresented by the eurosceptic press, and how Parliament reacted to the distorted version by changing the law to render any future participation by the UK in a project to create a European Public Prosecutor practically impossible.

The doctrine of the national margin of appreciation is well established in the case law of the European Court of Human Rights. In applying this essentially judge-made doctrine, the Court imposes self-restraint on its power of review, accepting that domestic authorities are best placed to settle a dispute. The areas in which the doctrine has most often been applied will be presented here, looking at various examples from case law. After a brief overview of the doctrine’s origin, the analysis will focus on the situations in which the margin has been allowed or denied. Does it relate merely to factual and domestic-law aspects of a case? What is the scope of the margin of appreciation when it comes to interpreting provisions of the European Convention on Human Rights? What impact does an interference (whether disproportionate or not) with a guaranteed right have on the margin allowed? Is there a second-degree or ‘reverse’ margin of appreciation, whereby discretionary powers can be distributed between executive and judicial authorities at domestic level? Lastly it is noteworthy that Protocol No 14, now ratified by all Council of Europe Member States, enshrines in Article 12—at least to some extent—an obligation to apply a margin of appreciation. One essential question remains: by allowing any margin of a certain width, is the European Court simply waiving its power of review or is it attributing responsibility to the domestic courts in the interest of a healthy subsidiarity?

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.