Suchergebnisse

AbstractTo what extent does collective identity, as expressed by national constitutions, provide a legal limit to (creeping) European integration in areas of core state powers? This article contrasts the approaches by the EU and national legal orders. While EU law does not allow any area to be a priori carved out of its scope of application, certain national courts consider they can disapply EU law where it too deeply affects areas that are considered core to the state, in order to guarantee sufficient space for national self‐determination so as to sustain national collective identity. Article 4(2) TEU, although touted as a platform to mediate constitutional conflict about the limits of EU powers, has made little difference in this respect. At the same time, the discord should not be overstated: national actors that credibly invoke legitimate interests within the framework of EU law will often find these recognized by the CJEU.

AbstractThe European Pillar of Social Rights is a high-profile political reaffirmation of twenty social rights and principles. Its implementation deploys the full EU governance arsenal: regulations, directives, recommendations, communications, new institutions, funding actions, and country-specific recommendations. As such, the static imagery evoked by a 'pillar' does not capture the true nature of the initiative, which is dynamic and fluid, wide-ranging, and permeating. An equation of the Pillar with the set of twenty rights and principles it proclaims similarly fails to capture its true significance, which lies in its programmatic nature. Several important measures have already been proposed as part of this new social action plan for Europe, some of which are close to adoption. This Article analyses the meaning of the Pillar and its potential significance, by considering its contentsensu largo, and its broader context. It argues that even if the Pillar cannot address all the EU's social failings, it has put a surprising social spin on the Better Regulation Agenda that was threatening to erode the socialacquis, it has rekindled the EU's relationship with the International Labour Organization and Council of Europe, and it helps rebalance the EU's output by reviving the use of the Treaty's Social Title.

AbstractHow is it that regardless of the reforms introduced by the Lisbon Treaty to better contain European integration in areas of core state powers, 'competence creep' can continue? What is the underlying cause? And why is it problematic? This article proposes answers to these questions through a systematic (re‐)conceptualization of the problem of 'competence creep', arguing that it results from the cross‐cutting governance that is the legal Leitmotif of European integration as well as from 'two‐level games' of national governments, and that it is problematic from the viewpoint of democratic legitimacy. However, it argues that the one form of competence creep that is most commonly understood as the core problem, and on which most reforms have focused, namely indirect legislation in areas of Member State competence, is actually the least worrying type of covert integration; negative and parallel integration, soft law and co‐ordination are all far more problematic.

In its controversial Sturgeon judgment, the Court of Justice of the European Union held thatRegulation 261/2004/EC interpreted in light of the equal treatment principle entitles passengers of delayed flights to claim financial compensation equal to the right accorded by the Regulation to passengers of cancelled flights. The ruling has met with hostility not only from airlines, but also from legal commentators and, most importantly, national judges. Courts from Germany, the Netherlands and the UK have flooded the ECJ with new references, asking it either directly or indirectly to overturn the judgment. Furthermore, some national judges have condemned the ruling altogether, and have refused to apply it. This contribution outlines the controversy, exploring the potential reasons and dynamics behind these strong reactions. It will be argued that although the ECJ engaged in a remarkable degree of judicial activism by effectively writing a new provision into a piece of secondary legislation, this activism can be defended as desirable to the extent that it counterbalances a market-favouring slant in the EU legislative process and checks the still undemocratic European legislature. Furthermore, it will be argued that activism alone does not account for the full extent of the controversy, and that there are additional factors in play. The Sturgeon controversy will be considered in light of the recent surge in Eurosceptic judgments by national supreme courts, which might embolden also lower courts to defy the ECJ, as well as the phenomenon of "Eurolegalism", i.e. the rise of an adversarial legal culture akin to that in the United States. National judiciaries might be Sturgeon-adverse because of the increasing "claim-culture" in Europe, as illustrated by the issue of passenger rights. It will be argued that Eurolegalism is a by-product of the wide-scale EU-induced privatization of public services and that consumer rights are a necessary counterbalance of the increasing marketization of European society/societies.