Suchergebnisse

The article scrutinizes the ex-post constitutional compatibility with the autonomy of the EU legal order of the Investor to State Dispute Settlement (ISDS) mechanism established in Article 26 of the Energy Charter Treaty (ECT). Whereas the compatibility of intra-EU aspects of ECT arbitration is examined primarily in the light of the EU Court of Justice's (CJEU) Achmea and Komstroy judgments, the compatibility of its extra-EU aspects is examined primarily in the light of its Opinion 1/17. Since those Court decisions are indeed in line with the previous case-law, the article does not need to delve into earlier case-law. Although the issue is analysed from the standpoint of EU law, awards of the arbitral tribunals before which the ECT is invoked have been taken into consideration especially to ascertain whether the CJEU's concerns for preserving the autonomy of the EU legal order against any possible legal effects of these awards were justified. The article also analyses the principal options to remedy the incompatibility of the ISDS mechanism under the ECT with the autonomy of the EU legal order.
Autonomy of the EU Legal Order, Investor to State Dispute Settlement, the Energy Charter Treaty, Intra-EU Arbitration, Extra-EU Arbitration

The article scrutinizes the issue of horizontal effect in the field of fundamental freedoms. In that regard two main sub-issues are explored: First, the ratione materiae and ratione personae scope of horizontal direct effect of the Treaty provisions on freedom of movement for workers, freedom to provide services and freedom of establishment is examined with their main rationales. Second, in addition to indirect horizontal direct of the Treaty provisions on free movement of goods, it is examined whether horizontal direct effect in the field of free movement of goods is provided by these provisions on the basis of the same rationales, if not, by the general principle of non-discrimination on grounds of nationality of EU law.

The paper examines in a comparative manner the approaches taken towards WTO law by the American and European legal orders in order to explore the core reason behind the European approach. The European approach to WTO appears unique compared with its general approach towards international law, in particular for international agreements concluded by the Community. The paper argues that the selective and pragmatic American approach, both legislative and judicial, towards WTO law have strongly influenced the judiciary on the other side of Atlantic to configure a selective and pragmatic judicial approach as well.

The phenomenon of mixed agreements has become the main feature of external relations of the Community legal order and it also is to become the main feature of external relations of the European legal order. With regard to this phenomenon the paper examines whether, to what extent and why a common interpretative position is followed by the ECJ for provisions of mixed agreements so as to shed light on the characteristics of the existence and exercise of competences of both the Community and the Member States in the external sphere in the light of case law to better understand a true structure of the Community legal order. The paper has two main arguments. Firstly, the paper asserts that neither the existence nor the exercise of external competences of the Community could be confined to its exclusive external competences, since the Community also nonexclusively exercises its external competences. Secondly, given that competences are demarcated within the Community legal order in an objective-oriented way in furtherance of the Treaty objectives, the shared and complementary characteristics of the national competences signify the incorporation of shared national competences into this legal in order to be exercised within the Community framework. It no longer is possible, upon the European constitutionalization process, to describe national competences as merely one type.