Category: POMFR

Well Into the Third Act: The Way Forward on Public Access to EU Documents

By Maarten Hillebrandt

  Public Access to Documents in the EU, by Leonor Rossi and Patricia Vinagre e Silva, (Oxford/Portland, Hart Publishing, 2017, ISBN 9781509905331); xxxviii + 340pp.; £49.00 hb.

Access to EU Documents: A Policy in Three Acts

On 7 February, the EU celebrated a remarkable anniversary. Exactly twenty-five years ago on that day, the Heads of State and Government (HSG) of the European Community’s then twelve Member States took the bold leap forward by signing the Maastricht Treaty. Another leap forward lay tucked away in one of the Treaty’s accompanying texts, even when the Member States’ representatives did not realise it at the time of signing. Declaration 17, attached to the Maastricht Treaty, recognised the positive relation between transparency and democracy, and professed an intention to take steps to advance such transparency. Thus began the First Act of a transformative development called Access to Documents.

In the years that followed, much ground was covered. Under the pressure of public opinion, the declaration turned out to have more bite than the HSG had envisaged. In an attempt to defuse the crisis that emerged after the Danish rejection and French near-rejection of the Maastricht Treaty, Declaration 17 went from a European Council statement to a Commission report, and from a Commission report into a code of conduct, which eventually led to internal decisions on access to documents adopted successively by the Council (1993), the Commission (1993) and the European Parliament (1997). Less than two years after a hortatory political declaration in a footnote of a treaty, EU access to documents thus entered into its Second Act. Continue reading →

POMFR: What form of government for the European Union and the Eurozone? (Fabbrini et al, eds.; Hart Publishing 2015).

By Daniela Jaros

A couple of months ago, an interesting volume edited by Federico Fabbrini, Ernst Hirsch Ballin and Han Somsen entitled „What form of government for the European Union and the Eurozone?“ appeared on the EU law book market. Containing contributions of many renowned scholars of EU law and EU politics, it seeks to explore the impact of the Euro-crisis on the institutional setting, the distribution of competences and the balance of power as well as issues of legitimacy and accountability within the Eurozone and ultimately within the European Union. Continue reading →

POMFR: Reviewing Protecting Vulnerable Groups – what about Hector Salamanca and Donald Gately?

By Thomas Burri

Francesca Ippolito/Sara Iglesias Sánchez (eds.), Protecting Vulnerable Groups – The European Human Rights Framework, Hart Publishing 2015

Hector Salamanca was vulnerable. The Mexican was old and, after having suffered a stroke, tied to the wheel chair. He had no means of communication save a tiny bell he barely managed to ring. After most of his family was dead, he lived the life of a lonesome vegetable in a nursing home.

Donald Gately is vulnerable. His sense of honour and duty as a staffer at Enfield House Drug and Alcohol Recovery House had practically compelled him to defend a drug addict who had got involved in a fight. In the fight, Don G. was shot in the shoulder. Now, he is tied to the hospital bed, suffering from inhuman pain, pain from which only opioids could bring relief – though not for him, for opioids had been the focus of his long history of substance abuse and now he is desperately abstinent.

Protecting Vulnerable Groups is a great book. It made me see all of the above (and more) in a new light. To be sure, Protecting Vulnerable Groups is not a book about Breaking Bad or Infinite Jest. It is not an economic, sociological, or socialist book either, despite the appearance the title creates. No, Protecting Vulnerable Groups is a rock solid book on the law, in particular case law. It explains how the European Court of Human Rights and the European Court of Justice attend to the vulnerable. Sometimes, the courts explicitly find persons vulnerable, as in MSS v Belgium and Greece when an asylum-seeker was declared “particularly vulnerable” (Protecting Vulnerable Groups, p. 249); sometimes the idea of vulnerability is merely inherent in the courts’ case law. Both occurrences are discussed extensively in the book. Continue reading →

POMFR: Viking, Laval and the Question if Anybody Cares

By Christopher Unseld

“Viking, Laval and Beyond”, edited by Mark Freedland and Jeremias Prassl, constitutes the first volume of Hart’s new series on “EU Law in the Member States”. In the series’ foreword Sacha Prechal lays out how crucial it is to understand the “genuine life of EU law in the Member States” since EU law – of course – is generally transposed, applied and enforced at the domestic level. But that is easier said than done. One needs good knowledge of EU law, domestic and comparative (EU) law to come close to some understanding of what Prechal calls EU law’s genuine life. And, let’s be honest, it is often hard enough to keep up with the current developments in EU law while not losing touch with domestic legal issues. Continue reading →

POMFR: Public Services in EU Law by Wolf Sauter

By Markus Kern

Wolf Sauter, Public Services in EU Law, Cambridge University Press 2014, 262 pages, GBP 65.00/ USD 99.00, ISBN: 9781107642423

Situated between the market and the state, the notion, concept and characteristics of public services are often multifaceted and difficult to grasp. The EU layer of public service regulation further adds to this complexity as it interacts in many different ways with the national legal frameworks in this field: EU law may structure national legal norms, coordinate the provision of services between the Member States, bring about minimal or maximal standards (e.g. pertaining to quality, ubiquity or affordability of the services provided), comprise detailed regulation or even set prices for the provision of public services as in the case of mobile roaming tariffs. At the same time the law on public services is under the influence of a whole range of EU law provisions and regimes: namely the rules on free movement, competition law and state aid, general and sector-specific primary law provisions, horizontal rules of secondary law, as well as a large body of sector-specific secondary EU law, which has increased substantially over the past few years. With his book Public Services in EU Law Wolf Sauter undertakes a challenging attempt to elucidate the complexity of EU law in the field of public services. Continue reading →

POMFR: José Luís Da Cruz Vilaça, EU Law and Integration: Twenty Years of Judicial Application of EU Law

By Tim Corthaut

Sometimes a book wins you over, and José Luís Da Cruz Vilaça’s EU Law and Integration: Twenty Years of Judicial Application of EU Law (Oxford/Portland, Hart 2014), is such a book.

I must admit that I had some reservations at first over the concept of the book, which is in essence an overview of the legal career – both as a legal scholar and a judge – of José Luís Da Cruz Vilaça, on the basis of a series of articles on different topics written over the course of two decades. Books like this only stand out if they can avoid three traps. Continue reading →

POMFR: The developing regulatory framework of Foreign Direct Investment in the EU

By Govert Coppens

Philip Strik, Shaping the Single European Market in the Field of Foreign Direct Investment, Hart Publishing 2014, 318 pages, ISBN 978-1-84946-5-427.

The place of foreign direct investment (‘FDI’) within the European Union’s legal framework is a topical issue among scholars and practitioners of European law and of international dispute settlement. This monograph explores the issues arising within the internal market and those that have come up in the European Union’s and the Member States’ individual external economic relations. It looks at the various aspects of FDI regulation, analysing the admission, treatment and protection of direct investments in the EU.

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POMFR: European Police and Criminal Co-Operation

By Claudio Matera

Maria Bergström and Anna Jonsson Cornell (eds.), European Police and Criminal Co-Operation, Swedish Studies In European Law, Volume 5, Hart Publishing 2014, 198 pages, ISBN: 978-1-84946-350-8

The fields of police and criminal law cooperation within the European Union have been significantly transformed and widened with the entry into force of the Lisbon Treaty in 2009; yet, they remain contested on a number of grounds. Maria Bergström and Annna Jonsson Cornell, the editors of the book under current review, argue that there are two main reasons for this. Firstly, they consider that this is because the two policies have a significant impact on the rights of individuals and on the relationship between the individual and the State; secondly, they consider that this is because policing and criminal law remain anchored to State sovereignty and the monopole of enforcement exercised by the States in these domains. Against this background, the different contributions of the book take stock of post-Lisbon developments in order to assess the extent to which the reform of 2009 and recent legislative initiatives relate to the two main controversial aspects identified by the editors. With legislative proposals such as the new Europol Regulation and the establishment of the European Public Prosecutor pending in Brussels, the book comes out at a time in which the powers of the EU in the fields are in the spotlight.

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POMFR: EU Security and Justice Law after Lisbon and Stockholm

By Niovi Vavoula

Diego Acosta Arcarazo and Cian C Murphy (eds.) EU Security and Justice Law after Lisbon and Stockholm, Hart Publishing 2014, 211 pages, ISBN: 978-1-84946-422-2

 Myriads of pages have been written about the impact of the Lisbon Treaty and the Stockholm Programme in the development of an EU ‘Area of Freedom, Security and Justice’ (AFSJ). This volume, edited by Diego Acosta Arcarazo and Cian Murphy and including a foreword by Sir Francis Jacobs, aims at adding to the existing literature. In particular, it takes stock of the legal developments in the field after Lisbon and Stockholm and provides an evaluation on what has been achieved and where there are still shortcomings. The publication of the volume comes at an interesting time; it coincides with the end of the transitional period, signifying that the Court of Justice of the EU (CJEU) and the Commission will assume their full powers over the former third pillar and the pick-and-choose relationship of the United Kingdom with the field will reach a crossroads. Besides, a new multi-annual Programme (named after Rome or any other Italian city) will be adopted by the European Council.

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POMFR: Constitutional Review in Europe – A Comparative Analysis

The 20th century has witnessed an impressive rise of constitutional justice, in particular as regards the emergence of and role given to constitutional courts in many European countries and the CJEU at the supranational level. A lot of literature has covered aspects of this development, and in the academic debate several authors have also voiced criticism of this court-centred constitutionalism and academic obsession with courts. This can be seen e.g. in the recent issue of the German Law Journal which features a number of contributions on the Political Constitution as a counter movement. In this rich context, Maartje de Visser examines two questions in her book Constitutional Review in Europe: First, who should uphold the Constitution, and second, how is constitutional review organised? In an attempt to answer these questions, she scrutinizes the legal order of 11 European countries and the EU legal order. In this post, I will first briefly set out the structure and content of the book in some more detail, before offering some praise and criticism. Continue reading →

POMFR: Judging Europe’s Judges – The Legitimacy of the Case Law of the European Court of Justice

In these times of increasing euroscepticism, critics of the European Union often contest the Union’s very raison d’être by referring to measures such as the “Bent Cucumber Regulation” and enquire after its right to legislate and adjudicate on areas that traditionally used to be within the scope of sovereign nation-states. What they actually enquire after in most of the cases is the legitimacy of the EU, having undergone an unprecedented and enormous transformation during the last 50 years from economic community to state-like polity, and its adjudicator, the Court of Justice (CJEU), whose jurisdiction ratione materiae has similarly expended and is now encompassing an unparalleled number of fields. The question remains whether the CJEU has shown too much judicial activism by using the instrument of teleological interpretation and whether it crossed the boundaries into the realm of illegitimacy. The time seems therefore ripe for a book like the one under review here, which is a volume of collected articles, edited by Maurice Adams, Henri de Waele, Johan Meeusen, and Gert Straetmans, fittingly entitled Judging Europe’s Judges: The Legitimacy of the Case Law of the European Court of Justice (Hart Publishing 2013) examining the legitimacy of the Luxembourg Court in areas as diverse as the internal market, citizenship, or the EU’s external relations.

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POMFR: The Accession of the European Union to the European Convention on Human Rights

Alright, we admit it, the topic of the EU’s accession to the European Convention on Human Rights is indeed intriguing us quite a bit here at the blog, as some of our recent contributions (see here and here) demonstrate. But like probably many, if not most of our readers, as EU lawyers we are drawn like moths toward lights by such an important constitutional development; there is simply no helping. I am thus again giving in to the temptation and will briefly discuss a recent book, Paul Gragl’s The Accession of the European Union to the European Convention on Human Rights (Hart Publishing 2013) which treats this phenomenon in detail. For the purpose of this POMFR, I will start by briefly outlining the structure followed by the book, to continue then with a number of points I would like to comment on.

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POMFR: Proportionality Analysis and Models of Judicial Review

Proportionality is a legal principle that allows (or requires) balancing between competing values. This enables judges to decide whether a measure has gone beyond what is required to attain a legitimate goal and whether its claimed benefits exceed the costs. Originating most clearly in German 19th century administrative law, proportionality has become a standard feature of constitutional analysis: since the Second World War it has gradually spread worldwide.[1] With the work of in particular Robert Alexy a common theoretical framework has become available.[2] Yet at the same time the way in which proportionality is actually applied varies widely – not just between jurisdictions, but within them. For instance, instead of strict balancing between values a necessity test is often applied.[3]

In his book, based on his PhD thesis at the Graduate Institute of Geneva, Benedikt Pirker claims that such differences can be explained by the institutional context of the balancing. Determining the nature of the test required is done by means of pre-balancing, an exercise looking at the particular situation of the reviewing tribunal. In his opening theoretical chapter Pirker argues that this in turn leads to the adoption of either of two models: (i) equal representation review; or (ii) special interest review. The essential difference is whether the values that are balanced are a priori deemed to be of comparable significance, in which case strict balancing is feasible, or whether one of the interests is from the outset held to be of preponderant value, in which case an alternative test like necessity becomes the judicial norm.

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POMFR: Der Staat im Recht

The moment has come to deliver on this blog’s promise of looking beyond the realm of the English language. For this POMFR post, I would like to present a recently published Festschrift which contains a number of contributions of interest to EU lawyers capable of reading German.

Der Staat im Recht is a Festschrift for Professor Eckart Klein, formerly Ordinarius at the University of Potsdam, which covers a broad range of topics – constitutional law, procedural law, international and human rights law and of course EU law. Now, while there are a number of non-EU law contributions which I found thought-provoking (if you have time, read the rather grim essay on the world dominance of human rights by Isensee, ‘Die heikle Weltherrschaft der Menschenrechte’), I will focus on the EU law contributions for this blog post. Continue reading →

POMFR: Greening EU Competition Law and Policy

Is EU competition law ‘special’? Should it be insulated from other EU policies? Should we Europeans follow the neoliberal teachings of Chicago scholars like Bork who claim that American antitrust policy ‘cannot properly be guided any goal other than consumer welfare’ and that ‘distribution of (…) wealth or the accomplishment of noneconomic goals are the proper subjects of other laws’?   These questions are particularly relevant to EU environmental policy, where we have seen an increase in reliance on market based instruments (the emissions trading scheme for instance). The central argument of Suzanne Kingston’s new book ‘Greening EU Competition Law and Policy’ is that EU competition law is not special and that it should take greater account of EU environmental policy and goals.

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POMFR: Beyond the Established Legal Orders

Have you wondered recently whatever happened to all that “fragmentation of international law” we used to worry about? Well, a 2011 volume edited by Malcolm Evans and Panos Koutrakos and published by Hart Publishing, that’s what happened. While I would like to introduce you briefly to the whole volume, there is one contribution I would particularly like to draw your attention to.

To put you in context, this is in my view a good book for those among us who were fascinated by the „fragmentation of international law“ debate starting (or at least becoming one of THE topics) in the 2000s; who have perhaps read Koskenniemi’s report for the International Law Commission or other literature on the topic (legal pluralism, Pauwelyn’s Conflict of Norms, you name it); who find themselves now stuck in one of the boxes and/or compartments of international or EU law; and who probably would love an update and overview over where we stand today. Continue reading →

Introducing a new category of posts: Readings we particularly enjoyed, or put differently Pas obligatoire, mais fortement recommandé (POMFR)

On one of these random internet-research expeditions probably many of us do while we would have lots of better and more urgent things to do I discovered JOTWELL. The basic idea (see their ‘Mission Statement’ here) of this Journal of Things We Like (Lots) is that in today’s world of legal mass production/publication, it becomes increasingly difficult to stay on top of things. While people are generally able to keep abreast with their field, they find it difficult to judge what is worth reading in neighbouring fields or at a more general level. JOTWELL should thus close this lacuna in US law by providing information as to what is ‘new, important, and interesting in most areas of the law’.

The project of founding a veritable journal for this purpose as these US scholars have done may be beyond the reach of this blog. Still, the underlying idea of creating space for sharing readings merits further consideration. This is what the new category of blog posts on ‘pas obligatoire mais fortement recommandé/POMFR’ is going to be about. Continue reading →