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(Series Information) European Papers - A Journal on Law and Integration, 2023 8(1), 349-352 | What Should Have Said | (Abstract) This preface to the new series What ... Should Have Said: Rewriting Landmark Judgments of the European Court of Justice introduces the project and its rationale. Legal scholars typically critically analyse court judgments so as to provide a ‘soft power based’ check on judicial reasoning and provide doctrinal and normative guidance for courts in future cases. Notwithstanding the merits of legal scholarship, especially scholarly critiques of case law invites the question of how these scholars concretely would have decided the respective cases. What ... Should Have Said provides a new way of ‘doing EU law’ by asking both junior and senior EU legal scholars to literally rewrite landmark judgments of the European Court of Justice.

(Series Information) European Papers - A Journal on Law and Integration, 2024 9(2), 621-640 | Article | (Table of Contents) I. Introduction. – II. Technological and legal aspects of biometrics. – II.1. Technological aspects and the application of biometrics in the EU. – II.2. Biometric legal framework. – III. Frontex’s biometric policy and fundamental rights. – III.1. Frontex role and legal obligations concerning biometrics. – III.2. Technology foresight on biometrics for the future travel. – IV. Conclusion. | (Abstract) This Article provides an assessment of the biometric policy of the European Border and Coast Guard Agency (Frontex) and its consequences for the fundamental rights of migrants. It provides an overview of the technological aspects of biometrics, their application, and the legal framework in the context of the Area of Freedom, Security and Justice. This sets the background for an analysis of how and why Frontex uses biometrics to advance its goals. This Article analyses policy papers, legal provisions, and other sources, but particularly the Technology Foresight on Biometrics for the Future of Travel, a report on biometrics published by Frontex. This Article concludes that Frontex fails to account for the consequences of its biometric policy on fundamental rights when considering the effects of biometric technologies for the future.

(Series Information) European Papers - A Journal on Law and Integration, 2024 9(2), 621-640 | Article | (Table of Contents) I. Introduction: the low-intensity constitutionalism of the EU and its meaning for agencies. – II. The rule of law and its implication in the EU legal order: effective judicial protection. – II.1. Rule of law and effective judicial protection. – II.2. The rule of law and its meaning for agencies. – III. The rule of law and democratic backsliding of illiberal Member States. – III.1. The rule of law crisis in the EU: overview and countermeasures. – III.2. Effective judicial protection at the intersection of the rule of law backsliding in Hungary: the case law on reception conditions and detention of protection-seekers. – IV. Two weights and two measures? The “fading legality” at the external borders of the EU and the role of the European Commission. – V. One, none, or a hundred thousand? Searching for a (coherent) approach in the case law of the Court of Justice. – V.1. The decisions on the EU – Turkey deal: denialism fed by realpolitik? – V.2. Exploring the limits of effective judicial protection within the EU: the litigation against Frontex. – VI. Conclusions: the difficult emergence of a rule of law for EU agencies, between self-restraint and fading European constitutionalism. | (Abstract) This Article expands the rule of law crisis narrative to the EU administrative layer. It starts by introducing the context where the agencies have developed; it continues with an operationalization of the rule of law for agencies; in the next section, it places the evolution of the agencies against the background of the low-intensity constitutionalism of the EU legal order and its meaning. It unpacks this concept into the right to effective judicial protection, which is assessed in its constitutional potential in the case law on the Hungarian rule of law; it further continues with an assessment of the case law concerning the instruments of the external dimension of migration and border management, focusing on the deference shown by the CJEU. The thesis argued in this Article disputes the idea of the consolidation of a coherent approach toward rule of law issues, especially when migration-related policies are concerned. The Article concludes with a claim that an effort of constitutional coherence is necessary to support the embedding of the agencies into a more robust rule of law framework.

(Series Information) European Papers - A Journal on Law and Integration, 2024 9(2), 529-55 | Article | (Table of Contents) I. Introduction. – II. The Court’s ability to influence policies. – III. Research design – IV. The analogous application of the Directive – IV.1. Periods of residence completed under Directive 68/360 – IV.2. Free movers returning to their Member State of origin – IV.3. Free movers naturalised in the host Member State – V. National responses to the analogous application of the Directive – V.1. Periods of residence completed under Directive 68/360 – V.2. Free movers returning to their Member State of origin – V.3. Free movers naturalised in the host Member State – V.4. Same-sex spouses – VI. Judicial Europeanisa-tion through deconstitutionalisation – VII. Concluding remarks. | (Abstract) The Court of Justice of the European Union (the Court) is often hailed as a pioneer in integration through law. Existing scholarship on the Court’s judicial power overwhelmingly focuses on constitu-tionalisation and the horizontal policy dimension. As a result, the judicial techniques behind the Court’s policy-making and the ensuing implications for domestic policies remain largely understudied. The re-cent deconstitutionalisation of EU law begs the question as to whether the Court can steer national policies through its case-law without constitutionalising policy outcomes. The Article responds to this gap, by empirically investigating the legal techniques underpinning the Court’s policy-making in a de-constitutionalised manner and the ensuing implications for Member States’ policies. The analysis exam-ines the legal reasoning in all cases where the Court applies the provisions of Directive 2004/38 by anal-ogy, as an example of the deconstitutionalisation process, and traces the responses of all Member States to the Court’s jurisprudence. The findings illustrate that the creation of rights through the analo-gous application of Directive 2004/38 enables the Court to diplomatically balance competing interests and is successful in generating judicial Europeanisation in the domain of migration.

(Series Information) European Papers - A Journal on Law and Integration, 2024 9(2), 557-592 | Article | (Table of Contents) I. Introduction. – II. The notion of “judgment” in the EU regulations on cross-border collection of mone-tary claims prior to H Limited and London Steam-Ship Owners. – II.1. “Any judgment”. – II.2. “A court or tribunal”. – II.3. “A Member State”. – III. The notion of “judgment” in the EU regulations on cross-border collection of monetary claims after the H Limited and London Steam-Ship Owners. – III.1. H Limited: Is “double exequatur” now allowed? – III.2. London Steam-Ship Owners: New rules of interplay between judgments and arbitral awards. – IV. Conclusion. | (Abstract) In the area of cross-border recognition and enforcement, judgments present the most important type of decisions that enjoy free movement within the European Union. The notion of a “judgment” may seem fairly obvious at first. However, given the broad definitions of EU’s private international law in-struments, the concept quickly proves to be much more complex. This became particularly clear after the recent rulings of the Court of Justice of the EU: the rulings in H Limited (C-568/20 ECLI:EU:C:2022:264) and London Steam-Ship Owners (C-700/20 ECLI:EU:C:2022:488). In light of the new case-law, this Article aims to answer the question as to what exactly constitutes a “judgment” in EU private international law, as well as determine whether the notion has been redefined after these rulings. The questions are answered with reference to the EU regulations dealing with monetary claims, while diverging aspects constituting a “judgment” under national laws of different Member States are highlighted as well.

(Series Information) European Papers - A Journal on Law and Integration, 2024 9(2), 479-511 | Article | (Table of Contents) I. Introduction. – II. EU climate policy and its impacts on third countries and persons living therein. – II.1. EU climate policy and its impacts on the sovereignty and economies of third countries. – II.2. Climate action and inaction and their impacts on human rights. – II.3. EU climate policy and its impacts on the human rights of persons living in third countries. – III. From impacts to legal obligations: extraterritorial human rights obligations in the context of climate change. – III.1. Extraterritorial human rights obliga-tions: a primer. – III.2. Recent judicial and quasi-judicial developments in the area of climate change. – IV. Pulling the threads together: the extraterritorial human rights obligations of the EU in the area of cli-mate change. – IV.1. Does the EU have extraterritorial human rights obligations? – IV.2. Enforcing the extraterritorial human rights obligations of the EU in the area of climate change: obstacles and ways forward. – V. Conclusion. | (Abstract) While it is by now recognised that climate change is having and will increasingly have a devastating im-pact on human rights and that ill-conceived climate action can also have adverse repercussions, the legal implications of these dynamics are still debated. This is particularly the case for the apparent in-compatibility between the global nature of climate change and the primarily territorial nature of States’ human rights obligations. In this context, the potential human rights obligations of the European Un-ion (EU) towards persons living in third countries when it acts – or refrains from acting – to counter cli-mate change have been particularly neglected, notwithstanding the major role played by the EU in both contributing to and mitigating climate change. Accordingly, the Article aims to shed light on the existence and extent of EU extraterritorial human rights obligations in the area of climate change. After exploring the wide array of EU climate measures and their extensive impacts on third countries and persons living therein, the Article offers an overview of the historical evolution and current state of ex-traterritorial human rights obligations in general and in the context of climate change specifically, pay-ing special attention to recent judicial and quasi-judicial developments. The Article then points to a number of peculiarities of the EU legal framework and EU climate policy to conclude that, notwith-standing potentially significant enforcement obstacles, the EU legal order could be readier than others to recognise extraterritorial human rights obligations when EU institutions act (or not) in the area of climate change.

(Series Information) European Papers - A Journal on Law and Integration, 2024 9(2), 513-527 | Article | (Table of Contents) I. Introduction. – II. The rise of executive migration governance in the EU. – III. Emergency: when soft law creates law. The example of the hotspots. – IV. From emergency to exception: on the abnormal normalisation of executive governance. – V. Conclusion. | (Abstract) : In the name of effectiveness, European Union (EU) governance has long departed from the traditional approach of governing through law, venturing onto new paths of making and discharging policies across different policy fields. Through new and creative governance, networked governance, and gov-ernance through agencies, flexibility and functionalism have become the new paradigms of EU govern-ance. This is particularly striking in the interiors area, including internal security and migration, where the fuzziness of the constitutional framework leaves wide margins to new governance approaches to intervene to “fill the gaps”. Failing to achieve harmonization through law (because of the high sovereign sensitivity and politicization), EU governance turned to harmonization through practices, trying to in-crease trust and boost cooperation on a practical level playing field. While legislative production regu-lating the core of EU asylum and migration is still scarce (i.e., regulating the substance of migration), hard law provisions mushroom when it comes to empowering agencies, regulating operational cooper-ation, or harmonizing practices across the EU (i.e., regulating the administration of migration). The ac-tual management of migration occurs then within this latter executive/administrative dimension. Ana-lysing (executive) migration governance in terms of whether it achieved its original intents (effective-ness and depoliticization) would only tell something about its goodness of fit, and little about its good-ness. In light of the incessant crises that have hit the EU, this Article reflects on the close-to-Schmittian state of exception, that is fuelling an increasingly creative governance in the Union.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1077-1103 | European Forum Insight of 8 January 2024 | (Series Information) European Papers (News of dd month yyyy) | (Table of Contents) I. Introduction - II. From German Competition Decision to EU Judgement - II.1. Bundeskartellamt Decision B6-22/16 of 6 February 2019 - II.2. Judgment of the Court (Grand Chamber) of 4 July 2023 - III. Comment - III.1. Something new: relations between competition law and data protection - III.2. Something borrowed: Meta v Bundeskartellamt and the European Commission - III.3. Something old: arts 6 and 9 GDPR - IV. Concluding remark. | (Abstract) Meta v Bundeskartellamt is the culmination of an issue years in the making: the relation between data protection and competition. In contention is the Bka’s finding that Meta’s practice of combining personal data across its many services, in addition to data collected through the integration of its services into third-party websites and apps, constitutes a violation of competition law. In this case, the ECJ holds that a competition authority is at liberty to consider GDPR violations as a “vital clue” to a finding of abuse of dominance, provided it first requested the cooperation of the competent data protection authorities. Furthermore, it finds that, apart from consent, no legal bases from the GDPR justify Facebook’s data processing. Through the principle of sincere cooperation, the Court opens the door to further integration of data protection and competition, acknowledging that data collection is at the core of digital market companies’ business models. Although the case is based on German national law, there is reason to believe that the same line of reasoning could also apply to the European Commission, thus expanding its options in digital market oversight. In contrast, the Court’s analysis of the GDPR is not quite as innovative, but still helpfully lists and reaffirms existing law.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 665-687 | Article | (Table of Contents) I. Introduction. – II. Regulating innovation in the digitalised age. – II.1. Impact of regulation on innovation. – II.2. Crypto-assets as innovation: a moving target. – III. The regulation of crypto-assets in the EU. – III.1. The MiCA framework, its objectives and challenges. – III.2. Activity-and risk-based approach to regulating crypto-assets. – IV. Future-proofing the EU regulation of crypto-assets. – IV.1. The challenge of future-proofing a regulatory intervention in innovative markets. – IV.2. Activity-based regulation of crypto-assets: future-proofing the regulatory perimeter. – IV.3. Risk-based approach to regulating markets in crypto-assets. - V. Conclusion. | (Abstract) The 2023 EU regulation of markets in crypto-assets (MiCA) is a timely and ambitious response to the regulatory challenges of a fast-developing and technology-intensive field. The new regulation expands the regulatory perimeter, thus enabling EU-wide supervision of crypto-asset service providers and issuers of the so-called “stablecoins”. As such, the MiCA is in line with the key objectives of the 2020 EU Digital Finance Strategy: it updates the existing EU regulatory framework to facilitate digital innovation while protecting European consumers. “Same activity, same risk, same rule” approach is at the core of the MiCA regime. The new regulatory intervention, however, is to be put to test by the incessant technological and business model innovation within the crypto industry. Is this new regulation future-proof? This paper identifies and explores the two main points of vulnerability that often undermine the future-proof nature and, ultimately, the effectiveness of regulatory interventions in innovative sectors. First, it analyses the structures that define the scope of the new framework, and their capacity to adjust to and incorporate innovation falling outside of the regulatory perimeter. Second, the paper explores the mechanisms that ensure the regulatory and supervisory framework under the MiCA remains relevant and able to address the changes in the amplitude and sources of risks. Against this background, the paper discusses two features indispensable for a future-proof regulation: the openness of the regulatory perimeter, and the regulatory capacity for risk anticipation.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 803-808 | European Forum Highlight of 28 November 2023 | (Abstract) This paper seeks to address the question of the future of the Ukrainian territories that have recently been or are currently being occupied by Russia primarily through the prism of relevant rules of international humanitarian law. After briefly recalling the conditions for the beginning of a belligerent occupation, the focus will be on the modalities for its termination, which will be examined and discussed with reference to the case of Ukraine.

(Series Information) European Papers - A Journal on Law and Integration, 2024 9(2), 463-477 | European Forum Insight of 29 July 2024 | (Table of Contents) I. Introduction. - II. Defining the scope of the right to obtain a free copy of the personal data contained in medical records. - ii.1. Under the GDPR. - ii.2. Under Directive 2011/24 on the application of patients’ rights in cross-border healthcare. - ii.3. Under the new European Health Data Space Regulation. - III. When access to health data intersects other rights: the normative balancing of potentially conflicting interests. - iii.1. Under the GDPR. - iii.2. Under Directive 2011/24 on the Application of Patients’ Rights in Cross-border Healthcare. - iii.3. Under the new European Health Data Space Regulation. - IV. The reach of the right to obtain a faithful reproduction of personal data vis-à-vis the right to obtain a copy of an (electronic) medical record. - iv.1. Under the GDPR. - iv.2. Under Directive 2011/24 on the application of patients’ rights in cross-border healthcare. - iv.3. Under the new European Health Data Space Regulation. - V. Waiting for sunrise…the (true) added value of the European Health Data Space Regulation | (Abstract) Text, text, text, text, text, text, text, text, text, text, text, text, text, text, text, text, text, text, text, text, text, text, text, text, text, text, text, text, text, text, text.

(Series Information) European Papers - A Journal on Law and Integration, 2024 9(1), 377-396 | Article | (Table of Contents) I. Introduction: the need for coordination between the supranational and international levels. – II. Models of coordination. – II.1. The prevalence model. – II.2. The balancing model. – III. Concrete application of the models. – III.1. The prevalence of obligations under customary international law. – III.2. The prevalence of rights and freedoms under EU law. – III.3. The balance of interests: national vs. EU citizenship. – IV. Concluding remarks. | (Abstract) Practice shows the existence of complex legal situations in which customary international rules applicable to the Member States interfere, even indirectly, with the competences of the Union, and vice versa. On the one hand, the implementation of a rule of customary international law by Member States could affect rights and obligations under EU law. On the other hand, the exercise of EU competences could affect the rights and obligations conferred on Member States by customary law. In these situations, the Union must reconcile two “equal and opposite” needs. On the one hand, it must ensure that Member States’ exercise of rights and obligations under customary international law does not undermine the effectiveness of EU law. On the other hand, it must prevent EU competences from interfering with the rules of customary international law applicable to the Member States. This Article aims to explore how the Union reconciles the exercise of EU competences with the exercise of Member States’ competences under customary international law. After examining the most prominent models that could theoretically be used to coordinate the two spheres of competence (section II), the attention will turn to the approach adopted by the ECJ (section III) to determine whether this approach affects the prerogatives of the EU Member States as sovereign states under international law (section IV).

(Series Information) European Papers - A Journal on Law and Integration, 2024 9(1), 311-335 | Article | (Table of Contents) I. Setting the scene: introductory remarks. – II. The possibility to reopen a case and ne bis in idem: main theoretical issues. – III. Retrial and ne bis in idem in Europe through the lens of the Charter, the ECHR and the CISA. – IV. A focus on the ECHR: Art. 4 of Protocol 7 as a benchmark for cases reopening in Europe. – IV.1. New or newly discovered facts. – IV.2. Fundamental defects in proceedings. – IV.3. The influence on the outcome of the case. – V. Concluding remarks. | (Abstract) The principle of ne bis in idem, intrinsically linked to the concept of res iudicata, constitutes a fundamental cornerstone of criminal justice, ensuring protection against multiple prosecutions or punishments for the same offense. Nevertheless, the ever-evolving legal landscape has engendered extensive discussions concerning the potential reopening of criminal cases, particularly in light of novel evidentiary findings or fundamental procedural irregularities in the criminal proceedings at stake. This Article embarks upon a comprehensive and exhaustive inquiry into the intricate interplay between the re-examination of criminal proceedings and the ne bis in idem principle in Europe. By concentrating on key legal instruments, including the Charter of Fundamental Rights of the European Union, the European Convention on Human Rights (ECHR), and the Convention Implementing the Schengen Agreement (CISA), this study aims at exploring the theoretical, legal, and human rights implications associated with such a course of action. At the heart of this analysis lies a meticulous examination of art. 4 of Protocol 7 to the ECHR, which serves as a pivotal benchmark governing the permissibility and justifiability of reopening criminal proceedings. Within this context, it will be demonstrated that, unfortunately, the interpretation of the latter provision by the Strasbourg Court – which provides for the minimum standards of protection of ne bis in idem in EU law – has not been consistent, creating potential issues concerning legal certainty and clarity that could undermine the essence of the said principle. Against this composite background, the primary objective of this Article is to illuminate the extent to which the principle of ne bis in idem may be rendered less stringent, in exceptional circumstances, to accommodate legitimate grounds warranting the reopening of criminal proceedings within the European legal framework.

(Series Information) European Papers - A Journal on Law and Integration, 2024 9(1), 397-422 | Article | (Table of Contents) I. Introduction. – II. The EU decision to assist Ukraine: a watershed yet not unpredictable moment. – III. The international relevance of the EU assistance to Ukraine. – IV. A measure of collective self-defence? – V. Attributing the assistance in favour of Ukraine to the EU Member States: the general criteria of arts 4 ARS and 6 ARIO. – VI. Attributing the assistance in favour of Ukraine to the EU Member States: the con-trol-based criteria. – VI.1. The effective control test. – VI.2. The overall control test. – VII. Attributing the assistance in favour of Ukraine to the European Union: the adoption criterion. – VII.1. The legal features of the adoption criterion. – VII.2. Assessing the animus adottandi. – VII.3. The adoption made by Deci-sion 338. – VII.4. The characteristics of the adoption of States’ conduct. – VII.5. The requirement of in-jured States’ or integrational organisations’ consent. – VIII. The effects of Decision 338 on international law on collective self-defence. – VIII.1. Conclusion n. 4(2) and Decision 338: the conditions for relevance. – VIII.2. Conclusion n. 4(2) and Decision 338: the conditions for great relevance. – IX. Concluding re-marks. | (Abstract) The European Union's decision to supply weapons and military equipment to the Ukrainian army, which is engaged in repelling Russian aggression, could amount to an international use of force, albeit minoris generis. In this case, the question arises as to whether it is admissible under international law on the use of force. One possible legal basis is the legal regime of collective self-defence. However, accord-ing to the classical interpretation, international law only grants States the power to act in self-defence, and the assistance benefiting Ukraine provided under Council Decision 2022/338 does not seem to be attributable to the EU Member States, even if they have brought weapons onto Ukrainian territory. On the contrary, military support for the Ukrainian army seems entirely attributable to the Union, which would have adopted the conduct of its Member States as States and international organisations might do with the conduct of individuals under international law of responsibility. This Article argues that the Council's decision to supply weapons to the Ukrainian army can be regarded as a first attempt to amend customary law, precisely to allow international organisations to act in collective self-defence in certain limited cases.

(Series Information) European Papers - A Journal on Law and Integration, 2024 9(1), 423-442 | Article | (Table of Contents) I. Introduction. – II. The legal principles governing EU coordination in international law-making fora: a weakness or a strength of Member States' external sovereignty? – III. The case of the Maritime Labour Convention: the journey of human rights from the EU to China via international law. – III.1. The Conven-tion and the EU's role in its elaboration. – III.2. The EU's rationale for uploading human rights standards into international law: a rights-oriented approach. – III.3. The impact of the Maritime Labour Conven-tion in China. – IV. Conclusion. | (Abstract) This Article presents two arguments and explores the relationship between them. First, the principles governing coordination between the EU and its Member States in multilateral fora (mainly, sincere co-operation and unity in the EU's representation) serve to increase the Member States' influence in inter-national law-making. Thus, there is a trade-off between the autonomy of Member States to determine their own positions in multilateral fora, and their capacity to influence such fora: the lesser the former, the greater the latter. Second, such an influence can be used by the EU and its Member States to pro-mote human rights laws abroad, “uploading” high standards into multilateral treaties, which are subse-quently “downloaded” by third states through ratification and implementation. Therefore, there is a link between the mentioned EU external relations law principles (which are a “condition” for a success-ful promotion) and the obligation to promote values set in arts 3(5) and 21 TEU (which provides the “direction” of the promotion). Consequently, when Member States complain about excessive EU intru-sion into their autonomy through common positions in multilateral fora, they should bear in mind that they are not only bound by the above-mentioned legal principles, but that their obligation to promote certain values abroad is also at stake. The case of the EU's influence on the Maritime Labour Conven-tion and its impact on Chinese law and policy is used to illustrate the arguments.

(Series Information) European Papers - A Journal on Law and Integration, 2024 9(1), 337-366 | Article | (Table of Contents) I. Introduction. - II. Air quality and EU law. - III. The CJEU’s case law on AQD. - iii.1. Public enforcement. - iii.2. Private enforcement. - IV. The JP judgement: no right to seek damages caused by air pollution. - iv.1. Damages are no longer a necessary corollary of direct effect. - iv.2. Member Staes liability for violation of EU law. - iv.3. Arts 13 and 23 AQD: rights whose infringement has no consequences attached. - iv.4. Between general and individual interests. - V. Conclusions | (Abstract) If the JP ruling were a book, it would be a thriller: not only the reader may be surprised by its outcome and by the arguments developed by the CJEU to support it, but it also contains a genuine “plot twist”, as until the end one is led to believe that the CJEU would have decided in the opposite way. While in previous cases it has constantly sought to enhance the effet utile of the EU regime on air quality, here the CJEU decided that individuals cannot claim compensation for damages suffered due to Member States’ infringements of that regime. By holding that Directive 2008/50/EC cannot confer rights to individuals because it pursues a general objective, the ruling seems inconsistent not only with the case law in this field, but also with several profiles that characterize the EU legal order from a broader perspective, such as the relation between direct effect and Member States’ liability. In addition to undermining the argument that EU law may recognize a substantive right to clean air, the ruling reduces the deterrent effect of Directive 2008/50/EC eliminating civil damages from the expected costs of air quality standards violations. The revision of Directive 2008/50/EC is currently under discussion and the Commission’s proposal – drafted before the JP ruling – recognizes the right to damages. The hope is that this point will survive the legislature procedure, reducing the relevance of the JP ruling: however, this is a feeble expectation considered the (need for Council’s approval and the) impact on Member States.

(Series Information) European Papers - A Journal on Law and Integration, 2024 9(1), 367-376 | Article | (Table of Contents) I. The state(hood) of the Union. – II. The EU as a state in international agreements. – III. The EU as a state under the 1969 Vienna Convention. – IV. The EU as a state in international dispute settlement. – V. Degrees of statehood? | (Abstract) There is one thing that lawyers - from both European Union and international law perspectives – can agree on: the EU is not a state. Yet the EU is now treated as a state-like entity in a variety of legal settings. Through concluding and participating in international treaties, through the CJEU interpreting and applying international agreements; and through dispute settlement bodies accepting the multiple nature of EU law, the Union now presents challenges to international law. This contribution argues that a conception of sovereignty as a functional and relational concept, rather than absolute and indivisible, would allow the Union to be accepted as a state for certain purposes in international law. The term “state” in international agreements could be interpreted to include legal persons, such as the Union, exercising degrees of statehood. If the EU continues to be regarded as a state-like entity, there will be a growing case for legal consequences to flow from this. Rather than speaking of the Union’s indeterminate or dual character in international law, it should be regarded as exercising degrees of statehood.

(Series Information) European Papers - A Journal on Law and Integration, 2024 9(1), 443-460 | Article | (Table of Contents) I. Introduction. – II. The EU control of harmful tax measures: the Code of Conduct for Business Taxation and other forms of cooperation between tax authorities. – III. State aid law as a tool against harmful tax measures. – IV. The rocky road to corporate tax harmonisation. – V. Is the EU overstepping its powers? Conclusive remarks. | (Abstract) The present Article analyses the legal instruments used at the EU level to tackle harmful tax competition in order to consider whether the EU action in this field is an undue limitation to national fiscal autonomy. State aid rules are the only “hard law” set of rules that have been used until now. As the Court of Justice stated in the Fiat case, the extensive notion of State aid adopted by the Commission in the assessment of tax rulings is an attempt of “backdoor tax harmonisation” that violates the Treaty provisions and national prerogatives in tax matters. On the other hand, forms of coordination between fiscal authorities, such as the Code of Conduct for Business Taxation, are not sufficient and corporate tax harmonisation is not achievable at the moment because of the lack of political will. The key contention of this Article is that the strategies and instruments put in place by the EU to tackle harmful tax competition are inadequate and, in the case of State aid, unduly restrict Member States’ fiscal autonomy.

(Series Information) European Papers - A Journal on Law and Integration, 2024 9(1), 287-309 | Article | (Table of Contents) I. Introduction. – II. A Brief (Constitutional) History of Kosovo. – III. Human Rights in Kosovo’s Legal Order. – III.1 Constitutional Integration. - III.2 Judicial Application. – IV. Standard-Setting, Monitoring and Cooperation Mechanisms. – IV.1 The Horizontal Facility. – IV.2 Other Programmes and Projects. – IV.3 From Projects to Change. – V. Conclusion and Outlook. | (Abstract) Areas of contested statehood present challenges to human rights on both a normative and a practical level. As areas of contested statehood face difficulties in acceding to human rights treaties and international organizations, more creative solutions have had to be found to ensure the protection of human rights in line with international standards. In recent years, Kosovo has been one of the most prominent examples of an area of contested statehood in Europe. This Article focuses on the role of one key international actor – the Council of Europe (CoE) – regarding the promotion of human rights in Kosovo. Combining doctrinal and empirical analysis, the Article discusses two key aspects of the relationship between the CoE and Kosovo: (1) the constitutionalisation and judicial application of the CoE’s human rights standards in Kosovo’s constitutional legal order; and (2) Kosovo’s interaction with the CoE’s human rights standard-setting, monitoring, and advisory mechanisms. This Article argues that these two aspects of the CoE’s and Kosovo’s relationship have been relatively impactful in embedding the CoE’s human rights standards in Kosovo. This has occurred to such an extent that Kosovo’s human rights system has now become inextricably tied to the Council of Europe’s human rights standards, despite not (yet) being a member of the CoE.

(Series Information) European Papers - A Journal on Law and Integration, 2024 9(1), 275-286 | European Forum Insight of 15 July 2024 | (Table of Contents) I. Introduzione. - II. I fatti di causa, il contesto in cui il rinvio si colloca e le conclusioni dell’AG. - III. La sentenza della Corte: gli elementi di novità. - IV. Conclusioni: la valutazione positiva dell’approccio Getin Noble Bank e della sua successiva applicazione in L.G. | (Abstract) Until recently, it would have been tautological to say that the question of assessing independence did not arise when the preliminary ruling instrument was activated by a national judge: judges in the Member States were presumed to be independent. However, in the context of the rule of law backsliding, with the adoption of national laws aimed at undermining the guarantee of independence and making the judiciary subject not only to the law but also to the executive, the Court of Justice was obliged, in the Getin Noble Bank judgment, to limit this presumption in cases where there is a final judgment of a national court or of the ECHR which gives rise to a presumption of infringement of art. 19(1) TEU and art. 47 of the EU Charter. The L.G. judgment is a landmark decision, as it is the first time that the Court of Justice has overturned the “presumption of independence” on the grounds that the Polish Chamber for Extraordinary and Public Affairs cannot be considered a judicial body within the meaning of art. 267 TFEU, due to irregularities in the procedure for the appointment of its members. The aim of this Insight is twofold: firstly, to analyse the facts of the case, the context in which the reference is made, the arguments of the AG and the Court's decision, highlighting its new elements, especially in relation to ECHR jurisprudence; secondly, to examine the systemic impact of the judgment.

(Series Information) European Papers - A Journal on Law and Integration, 2024 9(1), 261-274 | European Forum Insight of 08 July 2024 | (Table of Contents) I. Introduction. - II. Art. 9(3) of the Aarhus Convention and access to justice. - III. Art. 9(3) and the EU legal system: a story of uneasy bedfellows. - IV. The “sectoral” approach and its shortcomings. - iv.1. The genesis of the “sectoral” approach. - iv.2. Analysis of the sectoral provisions: a patchwork of inconsistent approaches. - V. Conclusion | (Abstract) Access to justice in environmental matters is one of the three pillars of the Aarhus Convention, to which both the EU and its Member States are Parties. In the Convention, access to justice is subdivided into four limbs. Art. 9(3) contains the general obligation of access to review procedures for the public of acts and omissions of private persons and public authorities concerning national law relating to the envi-ronment. Art. 9(3) had to be transposed by the Parties to the Convention, taking the discretion left by the vague wording of the provision into account. At the EU level, unlike for art. 9(1) and (2), there is no formal transposition of art. 9(3) in a dedicated Directive, because of Member States’ reluctance. The so-lution found by the Commission to remedy this lack of EU legislation on the matter was the publication of a soft law instrument in 2017. Since then, we have witnessed a shift in the approach used by the EU legislator, with access to justice provisions being incorporated directly into several pieces of “sectoral” legislation (Regulations and Directives), across various environmental areas. This Insight aims at retrac-ing the history of art. 9(3) of the Aarhus Convention in the EU legal order and at analysing and evaluat-ing the recent tendency of including access to justice rights in sectoral legislation.

(Series Information) European Papers - A Journal on Law and Integration, 2024 9(1), 247-259 | European Forum Insight of 03 July 2024 | (Table of Contents) I. Introduction. - II. Judgment of the Court. - III. Analysis and comment. - iii.1. The General Court’s treatment of Venezuela’s international law arguments. - iii.2. The international legal nature of the restrictive measures against Venezuela: retorsions or countermeasures? - IV. Conclusion | (Abstract) In case T-65/18 RENV Venezuela v Council the General Court was confronted with the question of the legality under international law of the EU’s restrictive measures against Venezuela. The judgment is of particular importance as it feeds into the burgeoning discussion regarding the juridical nature, and lawfulness, of EU restrictive measures against third States under international law. This Insight summarizes the judgment and analyses the Court’s line of argumentation and reasoning. It shows that the General Court here proclaimed an autonomous external sanctioning power stemming from the EU’s values and objectives governing the Union’s external action. The Insight argues that the General Court’s approach leaves much to be desired in terms of reasoning on the basis of international law. The Insight argues that the restrictive measures against Venezuela could be considered lawful on the basis of the international legal regime governing countermeasures in response to violations of erga omnes obligations. By eschewing engagement with the broader international legal framework, the General Court here missed an opportunity to make a substantive contribution to the (evolving) law of collective countermeasures.

(Series Information) European Papers - A Journal on Law and Integration, 2024 9(1), 229-245 | European Forum Insight of 02 July 2024 | (Table of Contents) I. Introduction. - II. EU approach to International Investment Law. - ii.1. EU competence over Foreign Direct Investment. - ii.2. Integration of sustainable development into investment agreements. - III. EU-Angola SIFA. - iii.1. History of the agreement. - iii.2. Substantive provisions of the EU-Angola SIFA. - IV. Is the EU-Angola SIFA a step forward towards the promotion of sustainable investments? - iv.1. Differences with other IIAs. - iv.2. An effective way to implement SGDs? - V. Conclusion. | (Abstract) In 2019 the EU Commission launched the ambitious so-called European Green Deal, a set of proposals aimed to revise and update EU legislation and to put in place new initiatives with the goal to ensure that EU policies are in line with climate and SDGs goals. To reach the targets set out by the EU institutions, a crucial role is attributed to private investments, which can mobilize the necessary capital to make feasible the green transition. In this regard, trade agreements are an important driver for sustainable growth both in the EU and in partner countries insofar as they promote private investments in strategic sectors while at the same time they contribute to sustainable development. While the EU Commission has already started to insert trade and sustainable development (TSD) chapters in its trade agreements, another possible path has been identified in the conclusion of new-generation bilateral investment agreements. This Insight examines the recently adopted EU-Angola Sustainable Investment Facilitation Agreement (EU-Angola SIFA) as the first of this new generation of investment agreements. Specifically, this Insight points out that, while the agreement is not yet in force and it will take several years to gauge whether it successfully serves as a stimulus to attract sustainable investments, it can already be considered a further attempt to balance the necessity to attract private capitals indispensable for the green transition with the preservation of States’ regulatory powers.

(Series Information) European Papers - A Journal on Law and Integration, 2024 9(1), 179-208 | Article | (Table of Contents) I. Introduction: structuralising crisis. – II. “Crisification”: the incremental normalisation of exceptions. – III. The 2015 ”Refugee Crisis”: the suspension of governance (as a form of governance) – III.1. Relocation (and Dublin prorogation) – III.2. The Hotspot Fiasco – IV. The New Pact Reforms: generalising derogations – IV.1. Screening process: hotspots extended – IV.2. Border Procedure: hotspots normalised – V. Conclusion: reversing the rule, decreasing legality. | (Abstract) This Article problematises the role of crisis in the governance of asylum in Europe. It unveils its nature, predominance, and implications as a structural component of EU law and policy in this domain. The main point I intend to convey is that crisis, in and by itself, constitutes a system of governance producing very problematic effects. The association between (unwanted) migration and refugee flows with crisis in the European context has allowed for the exceptionalisation of rights and legal safeguards, with the pre-emption of unauthorised arrivals becoming the main concern. The danger, instability, and abnormality connected with crisis pervades law and policy, justifying mechanisms that contravene minimal rule of law standards, including due process guarantees and effective judicial protection. The incremental normalisation of exceptions has led to a position where the suspension of (rule of law-based) governance has become a form of governance. The prorogation of “normal” (rule of law-compliant) arrangements has given way to “exceptional” means of managing asylum, starting with the 2015 “refugee crisis” and the relocation-plus-hotspots scheme, which have now been streamlined as part of the New Pact on Migration and Asylum reforms. The resulting generalisation of derogations, the proliferation of legal fictions and rights negations that the envisaged amendments involve, is progressively normalising a situation of non-access to international protection in the EU, with deleterious consequences not only for asylum seekers, but for the integrity of the EU legal order and fundamental rights at large.

(Series Information) European Papers - A Journal on Law and Integration, 2024 9(1), 209-228 | Article | (Table of Contents) I. Introduction. – II. The two-step accession to Schengen. – II.1. Schengen accession under primary law. – II.2. Schengen accession under secondary law. – III. Application of the Schengen acquis in Schengen candidate states. – III.1. Binding but not applicable. – III.2. Defining Schengen’s external borders. – III.3. The legal regime at the Schengen state’s border with Schengen candidate countries. – IV. Participation without full membership. – V. Conclusion. | (Abstract) This Article looks at the practical and legal implications of the Schengen “waiting room”. It examines the rules that apply to the verification of readiness in preparation of a Council decision on full accession and the extent to which the rules of the Schengen acquis apply to Schengen Candidate Countries prior to the lifting of internal border controls. It pays particular attention to the legal regime that applies at the borders between “old” and “new” Member States, more specifically Schengen members and Schengen Candidate Countries, and the borders between the Schengen Candidate Countries and third countries. It is argued that the prolonged exclusion from the Schengen area has resulted in a de facto duplication of the EU’s external border, accompanied with an incremental, near full application of the Schengen acquis, short of lifting internal border controls. As a result, for already well over fifteen years, Romania and Bulgaria have been part of the accompanying measures that should allow for free travel, yet its nationals have not been able to enjoy the benefits of their EU citizenship in full.

(Series Information) European Papers - A Journal on Law and Integration, 2024 9(1), 157-177 | Article | (Table of Contents) I. Introduction. – II. Thinking infrastructurally about Schengen. – III. Schengen as legal infrastructure. – IV. Infrastructural connections beyond the EU. – V. Conclusion. | (Abstract) Human mobility has always been a pre-condition for human development, yet few issues today remain subject to such elaborate legal restrictions. The Schengen acquis is exemplary of this as a composite network of legalities that extend over a broad range of human activities. This Article pioneers legal infrastructures as an analytical tool to bring into focus law’s fundamental role in shaping human (im)mobility. Section II sets the theoretical frame by conceptualizing Schengen as a legal infrastructure through a brief tour through the scholarly field of infrastructural studies. Section III then traces the emergence of the Schengen legal infrastructure through historical iterations of physicality, accretion, and entanglement. Section IV further shows how Schengen has transformed to actively mediate human mobility and normative frameworks also outside the European space. Part IV concludes briefly on the implications of our analysis for understanding Schengen as a cornerstone of European mobility law.

(Series Information) European Papers - A Journal on Law and Integration, 2024 9(1), 153-156 | Article | (Abstract) The functioning of the Schengen area and, more broadly, of European external borders, have been under considerable strain due to increased migration flows, the COVID-19 pandemic and security threats. These developments have tested Member States’ and EU agencies’ compliance with EU rules and principles, and the viability of the EU migration, asylum and border control policies. The future is equally challenging and will be marked by the reform EU migration, asylum and border control policies, with the recent adoption of the New Pact on Migration and Asylum and the amendment of the Schengen Borders Code. The nine Articles – by Thomas Gammeltoft-Hansen and William Hamilton Byrne, Violeta Moreno-Lax, Jorrit J. Rijpma and Henriet Baas, Niovi Vavoula, Věra Honusková and Enes Zaimović, Luisa Marin, Matija Kontak, Ana Kršinić and the editor, Iris Goldner Lang – contained within this Special Section, offer a contemporary and rich study of Schengen and European borders against the backdrop of recent challenges and future perspectives. They cast a new look on both the legal and political context of Schengen by discussing its infrastructure, Schengen accessions, externalisation, protection of migrants’ and asylum seekers’ rights, as well as the use of modern technologies at the EU’s external borders.

(Series Information) European Papers - A Journal on Law and Integration, 2024 9(1), 145-152 | European Forum Insight of 25 June 2024 | (Table of Contents) I. Introduction. - II. The signature of international agreements into EU law and the emergence of a practice. - III. Breaking a taboo. - IV. Conclusion. | (Abstract) The European Union has always concluded international agreements with third countries and international organisations as an integral component of its external action. In contrast to its predecessors, the Treaty of Lisbon introduced a uniform procedural framework for the negotiation and conclusion of international agreements in art. 218 TFEU with the aim of simplification and coherence between all EU external policies, including the CFSP. However, the act of signing international agreements has remained a grey area, shared between the Commission and the Council as a result of a well-established practice within EU institutional governance. On 9 April 2024, the European Court of Justice brought the Council back to a literal interpretation of the EU Treaties, removing any doubt about the role of the Commission in representing the EU externally and crystallising the legal authority of the sole Commission to sign agreements on behalf of the EU.

(Series Information) European Papers - A Journal on Law and Integration, 2024 9(1), 131-144 | European Forum Insight of 18 June 2024 | (Table of Contents) I. The citizenship of the Union: an evolving, slippery ground. - II. The case-law concerning the loss of the EU citizenship. - ii.1. Case-law overview: characterization and main features. - ii.2. Legal principles of EU citizenship law established by the Court. - III. The proportionality test and its effectiveness. - iii.1. Individual examination. - iii.2. Effective possibility to recover the nationality ex tunc. - IV. Individual examination and due process rights: information and reasonable time. - V. Concluding Remarks | (Abstract) The judgment in Stadt Duisburg, concerning the loss of German (and, thus, EU) citizenship in the context of naturalization proceedings, adds a new chapter to the “judicial saga” of loss of a Member State’s citizenship and compatibility of its national measures with EU law. This Insight focuses on such a case-law of the Court of Justice (“ECJ” or “the Court”), which reflects the compromise between the “untouchable” State sovereign competence in nationality matters and the gradual consolidation of a “procedural armour” assisting the loss of the EU citizenship and the rights attached thereto. Building on this assumption, the Insight retraces and examines the main principles of EU citizenship law elaborated by the Court via its case-law, inaugurated with its 2010 leading case Rottmann, and complemented with the latest additions of the 2024 judgment in Stadt Duisburg. The main idea emerging from this jurisprudence is that, essentially, the competence to establish criteria for the loss of nationality is, and remains, firmly in the Member States’ hands. Its exercise, though, is increasingly made contingent on the respect of basic, legal principles of EU procedural law, i.e., proportionality, effectiveness and due process of law. In other words, the ECJ does not intervene on the substantial side of the Member States’ competence (the “if”), but rather on the procedural one (the “how”), thereby influencing its concrete exercise.

(Series Information) European Papers - A Journal on Law and Integration, 2024 9(1), 117-120 | Highlight | Highlight of 12 June 2024 | (Abstract) In response to Russia's invasion of Ukraine on 24th February 2022, the European Union adopted clear position under its Common Foreign and Security Policy. Yet, the EU has to deal with opposite state policies that illustrate persisting dissensions between its Member States. In the meantime, the international context forces the EU to face up to a new challenge of unity and leads its Member States to take new initiatives. The EU's financial, political and military support to Ukraine is characterized by a strong unity. This is implemented by the ability of the Union to draw on the flexibility allowed by its Treaties and on the initiatives of its Member States. However, the Union's response to Russia's invasion of Ukraine reveals the nuances and limits of its unity.

(Series Information) European Papers - A Journal on Law and Integration, 2024 9(1), 121-129 | European Forum Insight of 18 June 2024 | (Table of Contents) I. Introduction. - II. Signature of international agreements: the (in)consistent practice. - III. Solving the indeterminacy of art. 218 TFEU. - iii.1. Scope, institutional balance and sincere cooperation. - iii.2 Signature of non-binding agreements. - IV. Case C-551-21: insights and commentaries. - iv.1. Understanding the arguments. - iv.2. The Court’s Findings. - V. Conclusions | (Abstract) The current Insight analyses the judgment of the European Court of Justice in Case C-551/21, which up-held the Commission's claim regarding its right to exercise the external act of treaty signature. The deci-sion sheds light on the signature procedure outlined in art. 218 TFEU and adds to previous cases, clari-fying the proper contours and roles of each institution in relation to the procedure set in the article. An initial observation of the practice appears to indicate the Permanent Representative of the country holding the Council's presidency as the responsible party to sign international agreements with third parties representing the Union. However, a more in-depth analysis reveals a lack of consistent and standardised practice. The judgment correctly recalibrates the institutional balance and is coherent with the reforms of the Lisbon Treaty, which sought to bring about an evolution of the principles of the Treaties without a formal amendment process.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(1), 301-316 | Article | (Table of Contents) I. Introduction. – II. The One Health approach: main conceptual features. – III. The One Health approach in EU policy and legislation – III.1. The One Health approach in EU policies. – III.2. The One Health approach in EU legislation. – IV. The One Health approach in the European Green Deal. – V. Concluding discussion. | (Abstract) The paper investigates how the One Health concept is used in the European Union and what functions are attributed to it in EU laws and policies. To this end we conduct a systematic analysis of EU laws and policy documents, with specific emphasis on the European Green Deal and its actions. The first section outlines the main conceptual features of the evolving One Health approach over time. The second section analyses how European laws and policies have considered One Health over time, showing its erratic use. The third section is dedicated to analysing how One Health is taken into account by the Green Deal’s actions. The conclusion recognises that the EU conceptualization and operationalization of One Health is far from being clear, coherent or concrete. However, we argue that a transition may be underway and One Health has the potential to become a new political and legal principle capable of permeating future EU actions towards a new phase of policy integration and sustainability.

(Series Information) European Papers - A Journal on Law and Integration, 2024 9(1), 105-116 | European Forum Insight of 20 May 2024 | (Table of Contents) I. Introducing the impact of Artificial Intelligence. – II. The AI Act: the risk architecture. – III. Further AI policies: development incentives and state regulatory frameworks. – IV. Proposals for legislation and other measures in Italy. – V. The human-centric approach. | (Abstract) The development of new emerging technologies, such as artificial intelligence, has sparked a scientific debate on their risks and benefits. This debate necessitates legal and regulatory considerations, particularly regarding the balance between technological growth and the protection of human rights. This Insight analyses the legal framework established by the European Union in its initial regulatory measures. The Insight highlights the importance of considering the human-centric perspective and adopting a risk-based methodology in the Artificial Intelligence Act. It also mentions the AI regulatory measures proposed by Member States, with a particular focus on Italy.

(Series Information) European Papers - A Journal on Law and Integration, 2024 9(1), 87-103 | European Forum Insight of 10 May 2024 | (Table of Contents) I. A December revolution. - II. The competition law of sports competition regulations. - III. ISU: a restriction by object trough two turns. - IV. ISU as a platform case and paradigm shift. - V. Who is the ultimate arbiter? - VI. Through the ice? | (Abstract) This judgment provides the foundations for applying art. 101 TFEU to rules or sporting organisations related to competing organisations. At hand was a rule that banned athletes from competing in non-approved skating competitions. The Commission found this rule to be a restriction of competition by object, which was largely upheld by the General Court. This judgment largely confirms the Commis-sion’s assessment and sheds light on what sporting organisations can do within the bounds of compe-tition law. It is a highly relevant judgment not only for those interested in the interaction between sports regulation and competition law, but also for people with a more general focus on competition law as it contains several clarifications and innovations as regards the interpretation of art. 101 that have implications beyond sporting organisations and may also impact the application of art. 102. Final-ly, the Court sheds some light on the compatibility of arbitration with the EU legal order.

(Series Information) European Papers - A Journal on Law and Integration, 2024 9(1), 69-86 | European Forum Insight of 02 May 2024 | (Table of Contents) I. Introduction. - II. Frontex under scrutiny: allegations, investigations, and the rule of law dilemma. - III. From Aleppo to the CJEU: WS et al. challenge Frontex in Court. - IV. The findings of the Court: no direct causal link. - V. Legal remedies and litigation avenues before the CJEU. - VI. In light of precedent: evolving perspectives on causation and joint liability. - VII. Consequences of WS for Frontex Accountability. - vii.1. Rapid reactions and resounding criticism. - vii.2. Unaddressed aspects: what the Court didn't say. - vii.3. Frontex Liability under the Competence Model. - VIII. Broader Consequences of WS for EU Law. - viii.1. The ecosystem of integrated administration. - viii.2. Is there space in EU law for joint liability?. - IX. Conclusion: shaping the EU joint liability landscape? | (Abstract) The Insight delves into the CJEU judgment of WS et al. v Frontex, the first action for damages against the European Border and Coast Guard Agency, Frontex, for human rights violations at the EU's external borders. Despite the prevalence of systemic violations and heightened attention to the agency's accountability, the Court, applying a stringent causality threshold, dismissed the claim, sidestepping crucial questions of positive obligations and responsibility attribution. The analysis critiques the judgment's shortcomings in causality assessment, emphasising its broader repercussions for EU law, particularly concerning liability frameworks and accountability dynamics within the new multi-actor reality of EU integrated administration. The Insight underscores the pressing need to reevaluate the existing competence model of determining liability in EU law to address its limitations and introduces the classification of these limitations as the binary of causality and the binary of jurisdiction. The CJEU’s reluctance to establish an effective framework for joint liability not only perpetuates contested accountability gaps but also risks establishing precarious areas devoid of accountability, thereby compromising the foundational principles of the Rule of Law in the European Union. The Insight concludes with a call to address these shortcomings, emphasising that rectification is not merely a matter of procedural refinement but a crucial step towards ensuring robust accountability mechanisms in EU law.

(Series Information) European Papers - A Journal on Law and Integration, 2024 9(1), 53-68 | European Forum Insight of 2 May 2024 | (Table of Contents) I. Le contexte des interventions devant la CIJ. – II. Les modalités d’intervention devant la CIJ. – II.2. L’intervention en interprétation de l’art. 62 du Statut de la CIJ. – II.2. L’intervention en interprétation de l’art. 63 du Statut de la CIJ. – III. Les principaux arguments des interventions. – III.1. La question centrale de la compétence de la Cour: art. IX de la Convention. – III.2. L’interprétation des arts I et VIII de la Convention. – III.3. L’interprétation des arts II et III de la Convention. – IV. Impact procédural des interventions multiples devant la CIJ. – IV.1. Le double objectif des déclarations d’intervention des États membres de l’Union européenne. – IV.2. Une crainte de retard rapidement rassurée. – IV.3. L’ordonnance du 5 juin 2023. – V. Conclusion. | (Abstract) In the context of the litigation relating to the Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v Russian Federation) before the International Court of Justice (ICJ), the Member States of the European Union (EU) have in turn filed a declaration of intervention on the basis of art. 63 of the Statute of the ICJ. Scarcely deployed in practice, this procedure allows third parties’ States to the proceedings to declare the interpretation they adopt on the convention in dispute to which they are parties. In the present case, the States, on the one hand, interpret the convention in such a way as to ensure the jurisdiction of the Court and, on the other hand, that the use of armed force without the authorization of the Security Council is not a means of prevention or repression, even in the case of a potential genocide. In doing so, the intervening States openly show their support for Ukraine. Furthermore, the massive use of the declaration of intervention also tends to look like a instrumentalization of the law, directed towards Russia.

(Series Information) European Papers - A Journal on Law and Integration, 2024 9(1), 39-52 | European Forum Insight of 15 April 2024 | (Table of Contents) I. The complexity of the geopolitical matter. - i.1. EU gas policy before 2022. - i.2. The Russian retaliation after the invasion. - II. The measures adopted in response (and their opposers). - ii.1. The first steps: saving gas. - ii.2. Gently steering the market. - ii.3. Joint purchases of gas. - ii.4. Enforcing solidarity. - III. The most debated aspect: what limits to market intervention? - iii.1. Regulation 2022/2578: another round of the price cap debate. - iii.2. A balancing solution? - IV. The effectivity of the measures: the impact assessments and the comments. - iv.1. After the emergency: the situation after one year. - iv.2. The energy community (was) now: was the EU prepared? - iv.3. The legal issues. - iv.4. The return of geopolitics and the future of an open(?) strategic autonomy. | (Abstract) This Insight offers an overview of the EU's evolving energy policy in the face of the energy crisis which followed the Russian illegal invasion of Ukraine, highlighting the critical interplay between legal measures, market dynamics, and geopolitical strategy. In the first section, the Insight will examine the history of the EU policy on gas and its inherent risks, presenting the supply shock which occurred after the invasion February 2022. In the second section, the Insight details the legislative measures adopted under RepowerEU in the field of gas, describing the various approaches such as reducing consumption, ensuring storage, and fostering interstate solidarity, highlighting how the political debates between member states have contributed to shape the Regulations on the matter. In the third section, the Insight also explores the complex dynamics of market interventions, particularly the debated Market Correction Mechanism (MCM) and its implications for EU energy markets. In the final section, the Insight examines the impact of these measures, noting the mixed outcomes highlighted in the EU commissioned reports and presenting the criticism of other stakeholders, highlighting the legal challenges in implementing coordinated energy policies among Member States with diverse interests. Moreover, reflecting on the post-crisis landscape, the Insight advocates for a transition from emergency measures to strategic foresight in energy policy. It argues for the EU's need to balance national autonomy with collective energy security, suggesting a shift towards more integrated energy policies also in light of preserving the EU’s strategic autonomy in response to emerging geopolitical challenges.

(Series Information) European Papers - A Journal on Law and Integration, 2024 9(1), 21-38 | European Forum Insight of 15 April 2024 | (Table of Contents) I. Introduction. - II. Context. - III. The draft regulation in detail. - III.1 Category 1 NGT plants. - III.2 Category 2 NGT plants. - III.3. Provisions for delegated and implementing acts as well as guidance material. - IV. Assessment of different scientific aspects in the regulation. - IV.1. Scientific reasoning of equivalence criteria as given in Annex I. - IV.2. Scientific reasoning of risk assessment criteria as given in Annex II. - V. Assessment of different legal aspects in the draft regulation. - V.1. Deliberate releases of cat 1 plants and committee procedure. - V.2 Precautionary principle. - V.3. Cartagena protocol. - v.4. Amendment of Annex I via delegated act. - VI. Ongoing discussion | (Abstract) This Insight explains in detail, yet easily understandable, the contents of the European Commission’s draft regulation on plants obtained by certain new genomic techniques and their food and feed. It critically comments on the underlying scientific considerations and discusses potential legal issues – the precautionary principle being one of them, though arguably not the most important one. Finally, the Insight summarizes the ongoing discussions and developments regarding the draft regulation. The Authors also hint at potential amendments, which might resolve some of the remaining problems.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1679-1695 | Article | (Table of Contents) I. Introduction. – II. The normative positioning of the Union: a new space for the collective exercise of sovereignty. – II.1. Human rights and criminal law, a source of inspiration and legitimacy. – II.2. Normative interpretation and hybridization within the Council practice. – III. “Supplementing” criminal repression? A new space to overcome the limits of jurisdiction. – III.1. Foreign policy v. criminal repression: the nature and purpose of the measures involved. – III.2. Overcoming the limits of jurisdiction and extending the reach of the measures. | (Abstract) The EU Global Human Rights Sanctions Regime was adopted by the European Union in December 2020, following in the footsteps of its allies and some of its own Member States. Initiated across the Atlantic in response to the murder of Russian lawyer Sergei Magnitsky, these thematic international sanctions can now target anyone associated with the most serious human rights violations. Presented as key levers in the international fight against impunity, these instruments lie at the confluence of foreign policy and criminal justice. The EU Global Human Rights Sanctions Regime is therefore a privileged observation point for studying the evolution of practice in areas that are traditionally closely associated with State sovereignty. More specifically, the analysis, carried out within the framework of both EU external action law and public international law, shows how the EU Global Human Rights Sanctions Regime enables the Union and its Member States to grasp some international situations which would fall outside their single competences and jurisdictions. This in turn illustrates a form of enhanced, collective and long-armed sovereignty, exercised on the international stage by the EU and its members in the service of their values and strategic interests.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1575-1597 | Article | (Table of Contents) I. Introduction. – II. New formulas in the regime of mutual recognition in the EIO. – III. The question of defining investigative measures and having recourse to a different one. – III.1. The applicability of the corrective mechanism in other cooperation systems. – IV. An increased extent of direct communication between the issuing and the executing authorities. – IV.1. Regulating greater communication between issuing and executing authorities as a form of institutionalised distrust. – V. The fundamental rights-based refusal ground and the question of its applicability. – V.1. Making the fundamental rights-based refusal ground the norm instead of it being the exception. – VI. Conclusion. | (Abstract) This Article concerns the European Investigation Order (EIO) and its relations to the principle of mutual recognition. The principle has been the engine of judicial cooperation in criminal matters between Member States of the European Union since the adoption of the Tampere conclusions in 1999. Member States rely on the principle in creating cooperation systems, thereby facilitating interaction among their criminal justice systems. Since Member States refrain from extensive criminal law harmonisation, the principle is of utmost importance. As such, a common regulatory technique was developed through which the principle is given effect in every cooperation system created so far. Although this regulatory technique was mostly followed in the directive establishing the EIO, it also introduced several novelties in the regime, notably the option to have recourse to another investigative measure, the possibility for a greater extent of communication, and the fundamental rights-based refusal ground. This Article argues that these rules make the EIO directive more protective of fundamental rights and show a new trend in the cooperation systems based on the principle of mutual recognition. In addition, while reviewing the applicability of these rules in other cooperation systems, it provides a proposal on how to apply them to enhance mutual trust between Member States through legislation.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1697-1740 | Article | (Table of Contents) I. Introduction. – II. Aid and assistance provided to Ukraine since February 2022. – II.1. The European Union and its Member States. – II.2. The United States of America, the United Kingdom and Canada. – II.3. Russia’s response. – II.4. Reactions from other states. – II.5. Conclusion. – III. Jus ad bellum, neutrality law, and jus in bello: the need for legal coherence. – III.1. Collective self-defence. – III.2. Different shades of neutrality? – III.3. Party status. – IV. Conclusion. | (Abstract) To assist Ukraine in defending itself against Russian aggression, the EU invoked the European Peace Facility to “finance the provision of […] military equipment and platforms designed to deliver lethal force for defensive purposes”. It marks the first time that the EU is funding the provision of lethal equipment to a third state. In October 2022, the EU announced the creation of EUMAM Ukraine to train Ukrainian Armed Forces to use the weapons EU Member States have provided. Since February 2022, the EU’s military aid and assistance has only increased. EU Member States are also providing military aid and assistance bilaterally, including training Ukrainian soldiers. In so doing, they are aligning their assistance with “like-minded” partners and NATO Member States, particularly the United States of America, the United Kingdom and Canada. This Article will assess the supply of military aid and equipment to Ukraine as well as the training of UAF through the lens of international law. One wonders whether the EU’s military aid and assistance amounts to collective self-defence, even if none of the supporting actors have invoked art. 51 UN Charter. The argument could be made that the EU and its Member States are breaching neutrality law in supplying lethal aid to Ukraine, albeit it has been argued that neutrality law is no longer relevant in the post charter era. The question also arises whether these actors have become parties to the conflict, even if supporting states and the EU frequently assert that they are not co-belligerents.

(Series Information) European Papers - A Journal on Law and Integration, 2024 9(1), 1-15 | European Forum Insight of 27 March 2024 | (Table of Contents) I. Introduction. - II. Background to the case. - III. The Advocate General's Opinion. - IV. The Judgment. - IV.1. The Analysis Under Art. 102 TFEU. - IV.2. The Analysis Under Art. 101 TFEU. - IV.3. Freedom to Provide Services. - V. Analysis. - V.1 What Role for the "European Sport Model"? - V.2. Can the UEFA/FIFA Rules Be Objectively Justified? - V.3. Broadcasting Rights, or How to Apply the European Sport Model.- VI. Conclusion: What Next for European Sport Law? | (Abstract) In European Super League Company (ESLC), the Court of Justice was faced with a challenge against the legality of FIFA and UEFA’s prior approval scheme for the creation of, and participation in, breakaway football competitions. The Court’s judgment is lengthy and nuanced, and touches on many of the issues which have characterised the ever-growing interaction between EU law and sport. The Court of Justice holds that the lack of a clear, transparent framework for the prior approval of breakaway constitutes a violation of arts 56, 101 and 102 TFEU, but provides indications about how such practices could be justified. Other aspects of the FIFA-UEFA regulatory ecosystem – for example, the framework for the joint sale of broadcasting rights – are found to be justifiable under EU law. The judgment also provides clarifications about how sport-related considerations can feed into the analysis of the TFEU’s competition and free movement provisions.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1663-1678 | Article | (Table of Contents) I. Introduction. – II. Primary law: migration management and its limits. – III. Secondary legislation: enhanced protection of migrants’ rights. - III.1. Enhancing the rights of migrants – III.2. Promotion of State interests. - IV. Asylum policy: reform failure and circumvention. – IV.1. “Pushbacks” as an extreme form of non-compliance. - IV.2. Continuity of “organised hypocrisy” over time. – V. Conclusion. | (Abstract) EU primary law reaffirms that States have the right to control the entry and stay of non-nationals, but it also entrusts the legislature with deciding, within the confines of human rights, how open or closed the external borders shall be. The ensuing tension between protection and state control is deeply engrained in the history and presence of European migration law. Supranational legislation often establishes a higher level of protection than human rights in the form of individual rights to legal entry or stay; these statutory guarantees considerably curtail the room for manoeuvre of the Member States, albeit on the basis of their “voluntary” consent. At the same time, EU migration law and policy can increase the practical leverage of States by means of inter-state cooperation. These contrasting dynamics coalesce in the contemporary debate about asylum policy. Protective elements exist, but several Member States violate their obligations, notably in the external border control context (“pushbacks”). While such instances of open resistance are unprecedented, they build on a history of half-hearted commitment ever since the signature of the Refugee Convention. EU migration law comprises reasonably generous domestic legislation and contributes to reducing the numbers of arrival at the same time, in particular via cooperation with third states such as Tunisia, Turkey, or Morocco, thus reiterating the simultaneity of “rescuing” and “taming” the nation-state.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1599-1628 | Article | (Table of Contents) I. Introduction. – II. Reform of epidemic surveillance. – III. Limited attention to decisions. – IV. Linguistic dimension. – V. Diversity and incidence of decisions. – VI. Inspiration for comparison. – VII. Substantial classification of decisions. – VIII. Outlining the doctrine of “standardising” decisions. – IX. Identified replacements by regulations. – X. Evaluation of these replacements. – XI. Perspectives andlimits of the tendency. – XII. Envisaged reform of secondary law instruments. – XIII. Conclusions. | (Abstract) The reform of epidemic surveillance in the European Union as a reaction to the Covid-19 pandemic attracts attention to one sporadically discussed phenomenon. Following the usual meaning of this term in legal settings, many decisions address individual cases. Nevertheless, a new category of decisions establishing rules has emerged in the past decades, i.e. “standardising” (“normative”, “norm-setting”, or “general”) decisions. These decisions have addressed the cooperation between the EU and national authorities, funding programmes and assistance to foreign countries. The European Parliament and the Council approved them. Theoretical reflections on these decisions are rare, but their pitfalls are identifiable. Namely, their possible effects on individuals are limited. The definition of unaddressed decisions provided by the Lisbon Treaty did not clarify the situation. Therefore, the recent tendency to replace these decisions with regulations deserves attention.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1645-1661 | Article | (Table of Contents) I. Introduction. – II. Law-making capacity as an expression of sovereignty. – III. The participation of international organizations in the formation of customary international law. – III.1. Overview. – III.2. Whose practice? – III.3. Which norms? – III.4. Conclusion. – IV. The practice of the EU and its relevance in the creation of customary international law. – IV.1. Overview. – IV.2. Legislative practice of the Union. – IV.3. Judicial practice of the CJEU. – IV.4. Positions taken by the Commission in (quasi-)judicial proceedings. – V. Conclusions. | (Abstract) This Article argues that the ability of the European Union to participate in the creation of customary international law curtails the sovereignty of its Member States. First, it shows that authority to participate in norm-creation constitutes a core aspect of sovereignty under international law. Second, it argues that the conduct of the European Union (as an international organization) may be determinative in ascertaining the existence and content of customary norms. However, that authority lacks an explicit basis in the treaties. Third, it asserts that this encompasses norms that are directly relevant for the Member States, potentially in circumstances outside of the scope of EU law. The Article then specifically discusses three types of acts of the Union and their relevance for the creation of customary international law, while providing examples that touch upon traditional inter-states relations. In particular, this concerns the legislative practice of the Union, the judicial practice of the Court of Justice of the European Union (CJEU) and public statements made by the Commission in (quasi-)judicial proceedings.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1555-1574 | Article | (Table of Contents) I. Introduction. – II. Rainbow families’ parental rights in the EU: charting progress through law and politics. – II.1. From courtrooms to Commission: the evolution of LGBTIQ parenthood recognition in EU law. – II.2. Political strategy of the Regulation proposal. – III. Concerns on the efficiency of the EU legislative mechanism. – III.1. The ambiguity of “EU value driven policy”. – III.2. The TFEU as an unexpected obstacle. – III.3. The Regulation proposal at an impasse: which alternatives? – IV. Conclusion. | (Abstract) The EU is known for its commitment to protecting the fundamental rights of same-sex couples as outlined in art. 10 TFEU and the Charter of Fundamental Rights of the EU (Charter) within its value-driven principles. Nevertheless, same-sex couples still face discrimination in forming families. Only 14 out of 27 Member States allow same-sex marriage, seven offer some form of recognition, and the other six offer no recognition at all. To address this issue, the European Commission has proposed a legal instrument which would introduce uniform rules for jurisdiction and applicable law in matters of parenthood, with the goal of ensuring recognition of parental rights for rainbow families across the EU. While the European Court of Human Rights and the Court of Justice of the European Union have made significant efforts to legally protect LGBTIQ individuals, the EU’s ability to act in the face of anti-LGBTIQ legal and social climates is still being questioned. This Article will examine the contents of the Commission’s legislative proposal, its political strategy, and the practical obstacles to its adoption, including legal mechanisms and political situations in certain Member States. The effectiveness, practicability, and sustainability of the proposal will also be evaluated. The goal is to provide a comprehensive analysis of the Commission’s efforts to promote and protect the rights of same-sex couples in the EU.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1629-1643 | Article | (Table of Contents) I. The present meaning of State sovereignty. – II. The sovereignty of EU Member States. – III. Concluding remarks. | (Abstract) The present Article addresses the issue of the sovereignty of EU Member States from the perspective of general international law. In a first part, it tries to define the present meaning of sovereignty in international law. As a guide, three main approaches to sovereignty are used, i.e. an understanding of sovereignty as independence, as Völkerrechtsunmittelbarkeit (direct legal relationship between a State and international law), and as an autonomy of States under the constitution of the international community. In a second part, the Article applies the criteria of these three approaches to the Member States of the EU. It also addresses the question of whether the EU itself can be qualified as sovereign, and the issue of a “shared” or “divided” sovereignty in Europe. By way of conclusion, the third part makes a plea for defending the concept of supranationalism, as established in Europe after World War II, against the idea of State sovereignty.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1539-1554 | European Forum Insight of 4 March 2024 | (Table of Contents) I. Introduction. - II. Cross-Border Telemedicinetext. - III. Clinical Risk. - IV. Product Liability. - IV.1. Conflicts of Jurisdiction. - IV.2. Conflicts of Laws. - V. Health Professional's Liability. - V.1. Conflicts of Jurisdiction. - V.2. Conflicts of Laws. - VI. Conclusions. | (Abstract) Telemedicine raises complex legal issues. The challenging regulatory choices needed to adequately cope with the digital transformation of healthcare become more pronounced when the provision of healthcare services bridges national borders. Recently the EU has undoubtedly presented itself as a particularly active player in harmonising the Member States’ substantive regimes on civil liability. However, harmonisation is still far from complete. Against this background, the general instruments of EU private international law have proved to be relatively fit for accommodating diverse legal orders in the digital age. Yet, their interaction with cross-border eHealth services remains to some extent complex and uncertain, last but not least in the light of the uncertain characterisation of medical liability.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(1), 67-76 | European Forum Insight of 24 May 2023 | (Table of Contents) I. Einleitung zum Sonderheft „Die deutschsprachige Europarechtswissenschaft und ihre Rolle in Europa“. - I.1. In Vielheit geeint. - I.2. Die deutschsprachige Europarechtswissenschaft. - I.3. Europa-)Rechtswissenschaft als Sprachwissenschaft. - I.4. Gelingensbedingungen für eine gemeinsame – d.h. europaweite – Europarechtswissenschaft. - II. Die Beiträge zum ersten deutschsprachigen Sonderheft (special focus) von EP. - III. Zukunftsaussicht: Veröffentlichen von deutschsprachigen Insights, Highlights und Abhandlungen in der multilingualen open access Fachzeitschrift European Papers. - III.1. Die Vision von European Papers. - III.2. Zukünftige auch deutschsprachige Beiträge zum Europäischen Forum bei European Papers. | (Abstract) For the first time, a German language Special Focus is to be published in the European Forum of European Papers. One of the key questions in EU law is what it means to be part of a scientific community whose object of study are legal norms existing in a multiplicity of languages and legal cultures. As the European Forum starts to accept German language manuscripts next to English, French, Italian and Spanish texts, the authors of the present Special Focus inquire in various ways into the role, structure and issues of the German-speaking community of EU law scholars. After a short introduction, the various papers are briefly presented, followed by an exposition of European Papers’ mission and some details about how to submit manuscripts, all of it in German, as a welcoming message for hopefully many future German language submissions to the journal.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(1), 99-115 | European Forum Insight of 24 May 2023 | (Abstract) The paper addresses the question whether there exists a specific “Austrian” community of EU law scholars. This forms part of the broader question whether there exists a peculiar German or German-speaking community of EU law scholars (to which the current issue is devoted). To this end, the paper examines three fields – the impact of the legal positivist tradition in the Kelsenian style on EU law re-search in Austria, the constitutional framework for the Austrian participation in the EU as well as empir-ical factors specific to Austrian EU law academia and practice – and concludes that one may well make a case for the existence of a genuinely “Austrian” community of EU law scholars.