Suchergebnisse

'Capability' concept and the evolution of European social policy /Simon Deakin --Euro and the welfare state /Mica Panic --Privatisation of social welfare: European Union competition law rules /John Temple Lang --Aims, effects and justifications : EC state aid law and its impact on national social policies /Andrea Biondi & Luca Rubini --Healthcare as an economic service under EC law /Panos Koutrakos --Community competence to regulate medical services /Derrick Wyatt --Impact of European Union law on English healthcare law /Jonathan Montgomery --EU citizenship and the principle of solidarity /Catherine Barnard --'Wish you weren't here--' new models of social solidarity in the European Union /Michael Dougan & Eleanor Spaventa --EU law and education : promotion of student mobility versus protection of education systems /Anne Pieter van der Mei --Inclusion and exclusion of persons and benefitsin the new co-ordination regulation /Frans Pennings --Between a rock and a soft place : internal market versus open co-ordination in EU social welfare law /Nick Bernard.

This article looks at the collective acts of the Member States which have a close connection with the EU, either because they trigger action at EU level, or because they find their basis in the Treaties. It is argued that such acts should not escape review just because they are not clearly situated within either the EU or the domestic legal system. The article identifies five categories of such acts, and then focuses on the EU-Turkey Statement and Sharpston cases as examples. For collective acts not based on the Treaties, various factors determine whether or not they are ascribable only to the collective action of Member States, or rather are adopted jointly with the EU institutions. If an act is also ascribable to an EU institution it must not escape judicial review, either through Article 263 TFEU or via preliminary rulings. Furthermore, EU acts deriving from a collective decision are subject to judicial review at EU level, and if an EU institution participated in the adoption of such acts, or failed to ensure that the act complied with EU primary law, the EU might incur non-contractual liability. Collective acts of the Member States can produce legal effect in the EU legal system only insofar as based on the Treaties and such acts have primary law status only when ratified according to national constitutional requirements. Acts lacking primary law status must be subject to the jurisdiction of the ECJ regarding their compatibility with the Treaties and the Charter.
Collective acts of the Member States, judicial review, EU-Turkey Statement, Sharpston affaire, Case T-192/16, C- 684/20 P, C-685/20 P, T-180/20

This article takes the non-discrimination directives as an "excuse" to reflect on how we should deal with EU fundamental rights in the composite constitutional spaces of the European Union and its Member States. It starts by highlighting some of the problems with fundamental rights protection in the EU, to then look at the non-discrimination directives. It shows that even when there is a stronger fundamental rights claim by the EU, as there is when it has exercised fundamental rights legislative competence, it is very difficult to devise a coherent interpretative framework in the fundamental rights field. The article then relates this problem to the more general issue of applicability of the Charter to the discretion of Member States when implementing EU law; it advocates leaving a wider margin of appreciation to national authorities and treating the Charter, in those cases when the Treaty does not otherwise apply, as a minimum safety net.

In December 2014 the Court of Justice of the European Union found, in Opinion 2/13, that the Draft Agreement for the EU accession to the ECHR was not compatible with the Treaties; unfortunately, some of the grounds relied upon by the Court will be difficult to remedy in a new agreement, even should the other parties to the ECHR be willing to negotiate a new agreement. This contribution recalls the reasons why accession was deemed necessary, and engages in a critical analysis of the Court's ruling. In particular, it takes issue with the Court's approach to justice and home affairs, where the Court would like the accession agreement to somehow relieve the Member States of some of their ECHR obligation when giving effect to legislation based on 'mutual trust'. The article then suggests that the three political institutions should simply declare that they consider themselves bound by the ECHR and that they will act without delay when and if the European Court of Human Rights should find that a piece of Union law is incompatible with the Convention.