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.

Over the course of 2013–15, there have been significant developments in the reform of class actions in Europe. The European Commission published its Recommendation of common principles concerning collective redress in June 2013, whilst the Consumer Rights Act 2015 – which was introduced into the United Kingdom Parliament in January 2014 and obtained Royal Assent on 26 March 2015 – contains a class action for competition law infringements. Although there is some ‘common ground’ between these legislative instruments, their divergences are far more legally significant, and comprise the focus of analysis in this article. Regarding the two topics of standing to sue, and the opt-in versus opt-out approach to forming the class, the approaches of the European Commission and the UK Parliament differ markedly, reflecting the deep policy, political and judicial divisions which have manifested in this area of reform for over a decade. The legislators have also ultimately chosen different scopes of application, with the European Commission preferring a ‘horizontal’ approach to reform, whilst the UK Parliament has pursued a sector-specific reform agenda. In respect of standing to sue and the opt-in versus opt-out debate, there are numerous sound legal and political reasons that manifestly support the UK law-makers’ decision to depart from the 2013 Recommendation. However, in respect of the horizontal-versus-sectoral debate, the topsy-turvy history of reform at both European and domestic levels has resulted, ironically, in both the Commission and UK policy-makers reversing the views which each had initially adopted within the past decade. Undoubtedly, as these reform measures demonstrate, the collective redress landscape is both evolving and controversial.

This paper offers up a map of self-authored post-legislative guidance practice among the EU’s decentralised agencies. It shows that the use of guidance by EU agencies is widespread and significant, but not pervasive in that 14 of the EU’s 33 agencies currently engage in guidance-making. Where guidance is produced, it varies significantly between and within agencies as regards volume and length. These documents are hard to find, they are called a miscellany of different things, and there seems to have sprung up, ad hoc, a hierarchy of guidance that is both interesting and lacking in clarity. The question as to whether such guidance binds those to whom it has been addressed has been fudged, with agencies and courts engaging in exercises of tautology and misdirection to avoid the appearance of anything that looks like binding norm-making by the EU’s agencies. Consultation and participation in the making of guidance seems lackadaisical. This map suggests a level of differentiation that is so ill-thought out, and so ad hoc, so lacking in foresight and oversight, as to be dysfunctional. At the same time, the lack of engagement by the EU courts with these norms suggests that the site of opportunity for a way forward in this area lies other than with the judiciary.

It is increasingly common for the EU to include extraterritorial greenhouse gas emissions within the scope of its climate change laws. These measures have proved to be fiercely controversial and on more than one occasion the EU has been forced to back down. With this in mind, this paper asks how far the EU’s climate change responsibilities ought to extend geographically. In answering this question, the paper draws a distinction between first-order and second-order climate responsibilities, acknowledges the importance of the internationally agreed ‘system boundary’ guidelines adopted by the Intergovernmental Panel on Climate Change, and seeks to learn lessons from the consequentialist approach that was favoured by the EU in giving broad geographical scope to its decision to include extraterritorial aviation emissions within the scope of its emissions trading scheme.

The Court of Justice of the European Union has on numerous occasions employed the provisions of the Vienna Convention on the Law of Treaties, to the extent that they represent principles of customary international law, in its judicial reasoning. At first glance, the Court’s use of the Vienna rules demonstrate fidelity towards international law; it can be seen as contributing to the ‘strict observance and the development of international law’. Upon closer examination, however, one finds that the Court applies these rules in a fashion that often deviates from the way in which other courts and bodies have applied the same principles. This article examines how the Court has used international treaty law, arguing that the Court often employs a novel, ‘European’ approach to certain principles. While the Court is free to apply treaty law in a manner it believes to be appropriate, the extent of this divergence risks undermining the integrity and uniform application of the Vienna rules.

The Court of Justice of the European Union has historically rejected references to preparatory work in the interpretation of EU Treaties. However, the preparatory work for the EURATOM, Maastricht, and Constitutional Treaties have played a role in recent judgments. The ‘explanations’ to the Charter of Fundamental Rights are expressly approved in the current Treaties. We examine the emerging case law on preparatory work. Reference to the drafters’ intent does not necessarily support dynamic interpretation, and may potentially even ossify historical interpretations. Even if the consequence of their introduction is a conservative interpretation, their use raises questions of transparency and democracy, and complicates the already difficult task of interpreting the EU constitution.

EU Opinion 2/13 on the accession of the EU to the ECHR was a landmark decision of the Court of Justice of the EU both for fundamental rights protection in the EU and the autonomy of the EU legal order. The present article argues that two approaches would have been possible, following either a discursive or an exclusive understanding of autonomy. As a thorough discussion of the Opinion shows, the Court chose the latter pathway, with detrimental consequences for the foreseeable future.

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 offers a perspective on how the objective of a strong and coherent European protection standard pursued by the fundamental rights amendments of the Lisbon Treaty can be achieved, as it proposes a discursive pluralistic framework to understand and guide the relationship between the EU Court of Justice and the European Court of Human Rights. It is argued that this framework – which is suggested as an alternative to the EU law approach to the Strasbourg system applied by the CJEU in Opinion 2/13 and its Charter-based case law – has a firm doctrinal, case law and normative basis. The article ends by addressing three of the most pertinent challenges to European fundamental rights protection through the prism of the proposed framework.

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.

This article explores the legalisation of the Common Foreign and Security Policy (CFSP) of the European Union (EU) and its increasing use of sanctions. It argues that the breadth and depth of the numerous sanctions regimes in place shows that EU foreign policy is not merely an aspiration but produces law and legal processes which share similarities with those in the rest of the EU’s legal order. Further, the article examines the extent to which non-EU Member States in Europe have aligned themselves with EU sanctions. The argument is made that this is evidence not only of Europeanisation, but also crucially of a legalised foreign policy which has allowed Europe-wide, EU-led foreign policy to emerge.

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.

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.

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.